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Topics of Discussion:
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 354. I’m Thomas Smith. I’m a new man!
Andrew: [Laughs]
Thomas: I went in that water tank that Luke is in in the beginning of Empire Strikes Back, you know?
Andrew: [Laughs]
Thomas: I mean, I still sound like crap but not as bad. How’re you doin’?
Andrew: I wanted to say I’ve been frozen in carbonite or something but, [Laughs] I’m doing great, Thomas. Glad to hear you’re on the mend.
Thomas: Aside from the fact that you had to watch Jay Sekulow talk, right?
Andrew: [Sighs] Oh my god, yeah. That is-
Thomas: That takes a toll.
Andrew: [Sighs] [Laughing] It is simultaneously the worst thing and the best thing at the same time. I now have my own personal metaphor for slowing down to watch a train wreck. When I’m driving-
Thomas: You’ve never gotten to see a train wreck? [Laughs]
Andrew: Well, no, but like people who slow down and look at the accident, like I don’t wanna see that [Clownhorn] right, sorry.
Thomas: Yeah, yeah.
Andrew: I’ve never got that. Now I get it because I am watching-
Thomas: But if it’s a lawyer accident-
Andrew: Yeah! [Laughs] I am watching the equivalent of a mental train wreck inside the mind of America’s dumbest lawyer, Jay Sekulow, and I can’t turn away. It’s fascinating.
Thomas: Alright, we’re gonna break that down. We’re gonna talk about Tulsi Gabbard’s lawsuit, I cannot wait! And then we’ll see if I have any voice left for my silent internal screaming I’m gonna be doing the entire time we talk about baseball law, because I’m still mad. Still mad, still will be mad for quite a while that the Astros cheated, among other teams possibly. But anyway-
Andrew: Yeah.
Thomas: Alright, so lots to talk about, we better just, uh, get right into it.
Impeachment Update
[Segment Intro]
Thomas: So the President mounted his defense.
Andrew: [Laughs]
Thomas: As in, a couple lawyers who, I dunno… should know better or shouldn’t know better? They shouldn’t know better.
Andrew: In many ways they should know better. Yeah, the President got four lawyers to almost be able to talk for two whole hours. That’s … impressive? Question mark?
Thomas: Yeah, I really loved [Laughs] That was one of the funniest parts by the way. You could tell it’s like a school presentation where your group doesn’t have enough.
Andrew: [Laughs] Yeah!
Thomas: I mean, we’re not gonna use all the time [Laughing] that the other side, you know, used 24 hours. We, pfft, we’ll be outta here in … 25 minutes. I mean, well no, we shouldn’t do that, let’s stretch a little bit.
Andrew: Let’s hold impeachment outside! Yeah. [Laughs]
Thomas: [Laughs]
Andrew: Oh god, yeah. Look, the whole game was given away when Trump complained two days ago, “my impeachment defense is starting on a Saturday and that’s not exactly prime time.” That’s the point.
Thomas: [Laughs]
Andrew: The entirety, as my son Alex pointed out, I was truly stunned by this. We were watching the main House Democratic, we were watching Adam Schiff on Wednesday evening and Alex said “What do you think Fox News is showing right now?” and I said to him [Laughing] with the delightful naivety that allowed me to confidently predict that Bill Barr would be impeached in April of 2018. I said look, even Fox News has got to show this. So we clicked over… and Fox News had Tucker Carlson’s smug punchable face up, and literally the impeachment broadcast in a mute box in the corner while Tucker Carlson and his cadre of-
Thomas: Yeah.
Andrew: The kind of people who would go on the Tucker Carlson show, were just sort of making fun over it, and it’s like oh, okay.
Thomas: Well they didn’t even MST3K it!
Andrew: Yeah!
Thomas: They just muted it and then talked over it. Like that’s responsible journalism.
Andrew: It cannot be stressed – look, I get it. You’re Uncle Clarence, you’re listening, we’re a liberal show, whatever. This is not normal! This is not the way that a major cable news network ought to be covering major news! I lack-
Thomas: They can’t even show unadulterated clips of just Democrats talking, they’re too worried that that will threaten their ecosystem of lies [Laughs] endanger what they have going on. Because even if you wanna say well MSNBC is the liberal version of Fox News, okay, they show the stuff that happens first. All day, they’ll let you watch the people – I dunno if it’s testifying, but making the case, the House managers making the case, and then yeah, they analyze it after and of course they probably have a liberal bias in analyzing it after, but at least they just show you the thing. Fox News can’t even show you it.
Andrew: It absolutely-
Thomas: With audio.
Andrew: Yeah. I’m really glad you made that point. [Laughs] You do have to add “with audio” because Uncle Frank will come back and be-
Thomas: Yeah, they did technically, yeah.
Andrew: They did technically show you! Yeah.
Thomas: [Laughs]
Andrew: We are likely to have listeners or listeners with friends and family members who do the sort of false dichotomy of “well, you know, MSNBC and Fox are equivalent” and we have occasionally mentioned the points of dis-analogy over time. Rachel Maddow not getting a daily briefing from President Obama for eight years is a pretty good point of dis-analogy. We know Sean Hannity gets talking points from the White House. They coordinate what they’re going to say with the White House.
Thomas: I think he might give talking points to the White House.
Andrew: [Laughs] Right!
Thomas: I think he might drive the talking points.
Andrew: But the point that you just made is really, just can’t be overemphasized, and you and I have said this and we won’t belabor it into the ground, but the idea that 30 to 40% of the country gets their information from what is a 1960s Soviet-era style propaganda machine… um, that’s terrifying, and that’s not something I ever thought we would have in this country. A lot of our structural problems are going to be reducible to, you know, what do you do about people who listen to Fox News and honestly believe – this is my clumsy effort at a segue, tell me how it works – honestly believe that the Mueller report was a total vindication for the President.
Thomas: Yeah.
Andrew: We saw that coming – well, we heard that, coming out of the words of Jay Sekulow, America’s dumbest lawyer. “Yeah, the Mueller report was a complete vindication for the President.” Now, the only reason to say that on national television is to signal hey, I am only playing to the people who already agree with me.
Thomas: [Laughing] Yeah! He started off – I forget if it was him or one of the other idiots, but he started off and was like “look, President Trump is a man of his word!” [Laughs]
Andrew: [Laughs]
Thomas: [Laughing] I think it was like, John Lovett who tweeted “who is that for?” It’s like, really? Nobody, not even Trump supporters think that! Not even Trump, nobody thinks that, not a human on the planet thinks that Trump is a man of his word! Who is- [Sighs] sorry, alright, let’s get to it. Anyway, so you didn’t find the defense compelling, I take it?
Andrew: [Laughs] I wanna read some things from the defense for you. This is the transcript, and I’m gonna go, of course, to Sekulow’s defense because we warned you that this would happen. We warned you that this would happen before Fiona Hill testified to the House Intelligence Committee, but it became instantly clear afterwards that part of the game of the defense of the President of the United States is advancing a conspiracy theory that was concocted by the Kremlin, runs contrary to all of our intelligence services, and undermines American national security. And by the way, is as false as could possibly be.
This is the Crowdstrike Ukraine interference in 2016 and I was – I’m gonna say I was shocked? I dunno, shocked is sort of losing its meaning. I was shocked to see Jay Sekulow parrot that. It was really the second thing he said in his block of time on Saturday. The first thing he said was the Mueller report was a total vindication. [Laughs] Then we went into some expert-level well poisoning. Here, word for word, is America’s dumbest lawyer, Jay Sekulow:
“We really intend to show over the next several days that the evidence is actually really overwhelming that the President did nothing wrong. Mr. Schiff and his colleagues repeatedly told you that the intelligence community assessment that Russia was acting alone, responsible for the election interference, implying that this somehow debunked the idea that there might be interference from other countries, including Ukraine.” I would just point out you don’t even have to go back to our prior episodes. [Laughing] “Acting alone” does not imply falsely that Ukraine was not involved, it explicitly states it! Acting alone means not acting in concert with anyone else.
Thomas: [Laughs]
Andrew: Again, remember that the Q-Ukraine-Crowdstrike-Pizzagate theory is that there was a magic secret server that had all of Hillary Clinton’s emails loaded onto it that Ukraine arranged to put in some kind of safety deposit box beneath a series of tubes?
Thomas: [Laughs]
Andrew: You cannot simultaneously believe that they did that and believe our intelligence agencies.
Thomas: Again, because Killory needed it hidden but not gone in case, you know, there’s like an appointment in there that she forgot about?
Andrew: [Laughs]
Thomas: Aw, I gotta – one of those emails had a coupon I was gonna use!
Andrew: And you know Bed Bath & Beyond, they’ll take that even if they’re over 30 days expired!
Thomas: It was a 30% off your entire order! It wasn’t just an item, and there wasn’t a limit on it, so just keep the server for me if you don’t mind.
Andrew: Yeah. Sekulow continuing – and again, I have and will continue to call Jay Sekulow stupid, because it’s true! But even someone as stupid as Jay Sekulow knows, 100% – you’re welcome to sue us, by the way! Opening Arguments Media, LLC, a Maryland Limited Liability Corporation.
Thomas: That would be fun. Oh I can’t wait for my deposition and then we can release it! [Sighs] Oh, it’s gonna be fun.
Andrew: It’ll be fantastic.
Even somebody as stupid as Jay Sekulow is 100% aware that they are lying when he says as follows: “Mr. Nadler deployed a similar argument, saying that President Trump thought Ukraine, not Russia, interfered with our last Presidential election, and this is basically what we call a strawman argument. Let me be clear” (By the way, eff you Jay Sekulow for stealing my catchphrase!) “Let me be clear, the House managers in a 23 hour period kept pushing this false dichotomy that it was either Russia or Ukraine but not both. They kept telling you the conclusion of the intelligence community and Mr. Mueller, was Russia alone with respect to the 2016 elections.”
Now I’m skipping a little bit. “In fact, let me report, there is a letter dated May 4, 2018 to Mr. Yuriy Lutsenko, the General Prosecutor for the Office of the Prosecutor General of Ukraine, it was a letter requesting that his office cooperate with the Mueller investigation involving Ukrainian issues and issues involving Ukraine government or law enforcement officials. It’s signed by Senator Menendez, Senator Leahy, and Senator Durbin.
I’m doing this to put this in an entire perspective. House Managers tried to tell you that the importance – remember the whole discussion” by the way, this is – I’m not editing out, this is just the way Jay Sekulow talks.
Thomas: Yeah, am I still sick? What’s happening?
Andrew: Yeah [Laughs]
Thomas: Audience, catch me up. What are these sentences?
Andrew: [Laughing] “Remember the whole discussion and my colleague Mr. Inaudible talked about this”-
Thomas: [Hearty Laughter]
Andrew: -“between President Zelensky and President Trump and the bilateral meeting in the Oval Office of the White House as if an article of impeachment.” Um…
Thomas: I need to take my temperature, I think I might be back up to 104.
Andrew: That’s the end of it. No, I have quoted Jay Sekulow word for word salad on this.
Thomas: Also we need to bring – Mr. Inaudible needs to be a character on this show now! [Laughs]
Andrew: [Laughs] Mr. Inaudible has been a character on this show the whole time! [Laughing] You just can’t hear him!
Thomas: That’s true.
Andrew: That’s the defense!
Thomas: So translate that from nothing to English. [Laughs]
Andrew: You cannot translate that into English. It could be both Russia and Ukraine, and the reason it could be both Russia and Ukraine is because Democratic Senators sent a letter to the General Prosecutor in Ukraine asking him to cooperate with the Mueller investigation.
Thomas: Hmm.
Andrew: One of the reasons you would ask him to cooperate with the Mueller investigation is that ancillary to the Mueller investigation was the prosecution of Paul Manafort, who basically overthrew the government of Ukraine!
Thomas: [Laughs]
Andrew: And installed a pro-Russian stooge as President of Ukraine who, to this day, lives in exile in Russia. To call that a non-sequitur really is an insult to non-sequiturs everywhere. It is just throwing words into a blender and leaving the lid off and waiting for it to vomit it across the room. This is the President’s chief defense counsel. [Sighs] So this episode’s gonna go out on Tuesday, by then you will have had, who knows? Maybe they’ll only use another hour or so on Monday, but you will have had yet more (quote) “testimony.”
The striking thing that really hit me is the way in which the House managers, and particularly Adam Schiff, presented their case, I think was really brilliant. If you’re Adam Schiff you are among the Fox News crowd being targeted as [Impersonation] “Shifty Schiff” and he lied about the contents of the call and he’s just out to get the President. When that is the type going in, when that is what you think the jury thinks about you, you play against type.
What Adam Schiff did was – incredibly masterfully – introduce very specific pieces of evidence as if this were a Motion for Summary Judgment, playing fairly lengthy clips of deposition testimony of the various witnesses that they House investigatory committees were able to depose, and weaved it into an overall narrative that – look, obviously those listening to our show probably find it compelling, but was designed to get to the point that we have been pushing on this show and continue to push. If you still haven’t called your Senators, call your Senators. Listen to Thursday’s episode. Was designed to say hey, this ought to at least raise questions.
As we are putting on mounds and mounts of evidence, you ought to say well, I think we should at minimum figure out if this is true or not. I don’t think this rises to the level of just moving to dismiss without hearing from witnesses. We’ll know in a week’s time if that move was successful, but it is the only move that the Democrats have right now. I thought that presentation was restrained, understated, designed to make Republican Senators uncomfortable with just brushing this all under the rug.
What did you think?
Thomas: Uh, specifically what? Of the whole, Schiff’s case or?
Andrew: Yeah, the general approach.
Thomas: I think, honestly I’m proud to be Democrat right now. I’m proud that Schiff is a part of this and is the main part of the prosecution here. Also, California, I wish you were my representative, no offense to Matsui, but yeah he’s really making Californians look good. I think we’re doing as well as we can, but it’s probably a complete lost cause, but as I said last episode you still have to make them be the bad guys, you can’t just be the bad guys for them because you think they’re gonna be bad guys. So I think we’re doing everything we can, keep doing everything you can, again make them be the bad guys.
I think you’ve emphasized this, I believe. We can kinda hold two views, I think. You can understand that McConnell and them are just essentially criminals in that they just are going to aid and abet and allow Trump to do whatever and there’s not a whole lot we can do about it if they decide to just be that way. On the other hand, again, we still have to do everything we can. It doesn’t make sense to quit because they’re the bad guys, is all I’m saying. It doesn’t mean McConnell’s gonna all of a sudden have a heart of gold and, you know, change his mind or something.
Andrew: [Laughs] Right.
Thomas: We’re not that dumb, you’d have to be really stupid to think that.
Andrew: But look-
Thomas: But there are a few moderates that may be able to sway the vote to get the witnesses heard at least, and we do what we can.
Andrew: I’ve been toying with this idea over the weekend. Let me test it out on you, see what you think. If you are solely 100% self-interested in first, your career as a Republican Senator, then as a distant second the overall health of the Republican party insofar as that support’s number one, so you are just a craven political self-interested Republican Senator. I know this is a hard hypothetical to envision, but take that person. Yes, understanding that process arguments kind of suck, It’s easier to make a substantive argument then an argument about fairness.
Aren’t you a little bit worried of going quickly to a vote on a Motion to Dismiss and hear nothing else understanding that what that will do is completely galvanize and unify the entire Democratic party, it will put Liz Warren, Bernie Sanders, back on the campaign trail – Amy Klobuchar, shouldn’t discount her as well – and they will be armed with “We just saw a sham trial. We put on 23 hours of opening statements, we played you 15 hours of specific evidence over and over again and Republicans said we don’t even want to hear this, we don’t want to investigate, we don’t wanna see, we don’t wanna call witness, we just wanna say okay everything’s fine nothing to see here.”
I have to think there’s some political risk in terms of that. Not as much risk as, you know, having 100% of the evidence come out against Trump, I agree with that, but I dunno, am I too optimistic, is that too much of an Optimist Prime?
Thomas: It’s just so hard because none of this makes sense to me. I mean, I’m trying my best but like you say, of course they’re all self-interested first and foremost, and given that that’s the case I don’t understand. Do they think that Trump’s gonna be in office forever?
Andrew: [Laughs]
Thomas: You know, how long do they think this can last? I mean, how likely do they see Trump winning in 2020, I guess, is what I wonder. If they’re sitting there … well, I dunno. On the other hand, nobody ever suffers consequences for anything I guess so maybe they ride this out as long as they can and then even if Trump gets voted out in 2020 their voters in whatever their State is going to be probably will still reward them, so who knows? Do you understand the incentives? Because I guess I don’t fully.
Andrew: I don’t, and I have [Laughing] never understood? I can explain Lindsey Graham and I have done so repeatedly. Lindsey Graham made the calculation explicitly, it’s worse for me to be anti-Trump and lose in a primary in South Carolina then pro-Trump and lose in the general election. We’ve described that. And look, Lindsey Graham can and should and god willing will lose in this election cycle, but I get the leverage over him. I don’t get Jeff Flake, I don’t get right now where we’re just barely hearing from Lamar Alexander. I don’t get people who otherwise have nothing to lose who have sort of ridden off into the sunset and who did not otherwise take advantage-
Thomas: Yeah. They’re quitting because of Trump!
Andrew: Yeah!
Thomas: And they’re not, they don’t wanna go out in a blaze of glory of any kind, or at least a moderate amount of dignity. Go out in a moderate amount of dignity!
Andrew: There we go! Let’s hoist that banner.
Thomas: It’s a new blaze of glory.
Andrew: Hey, can I? Part of the way in which I suffer for our listeners, I watched Alan Dershowitz on the Laura Ingraham show? [Laughs]
Thomas: Oh my god.
Andrew: Can I talk about Alan Dershowitz lying? Because this is kind of amazing. So Laura Ingraham, who may be the worst person on Fox News.
Thomas: That’s close! [Laughs]
Andrew: Yeah, Tucker Carlson is way up there, Sean Hannity it’s just I’ve gotten to the point where I can put the mute button on in my brain and literally all I hear is him screaming so, you know. [Laughing] She’s real bad!
So she had Alan Dershowitz on, who first effusively thanked her for not engaging in hard questions.
Thomas: [Laughs]
Andrew: 100%, I’m not making that up. He said in a reference to the CNN interview, he said “well you know it’s so great to be on a format where I don’t have two people ganging up on me!” in an accidental you said the quiet part loud there.
Thomas: Poor zillionaire lawyer!
Andrew: [Laughs]
Thomas: You can’t handle people asking you? Literally your job.
[Commercial – lightstream.com/oa]
Andrew: So, yeah. [Laughs] I want to call attention to two particular, uh I’m gonna say falsehoods. First Dersh came on to try and say that bit in CNN where in 1998 he said that you didn’t have to have a crime to impeach and now you do that that wasn’t his fault and I am not – I’m just gonna read you Alan Dershowitz’s words because this is astonishing for one of the most recognizable lawyers in the country to say. Quote:
“The issue was whether it was a high crime, so I didn’t do the research. I relied on people like Professor Larry Tribe who said you didn’t need a technical crime. That turns out to be wrong. You may not need crime, the critical point is that obstruction of congress and abuse of power are clearly not within what the framers intended and I will lay out that argument quite clearly with sources, and I’m sure other members of the Trump team will do the same.”
“It’s my first day” is not exactly a great argument when you’re Alan Dershowitz!
Thomas: [Laughs]
Andrew: The idea that Alan Dershowitz would rely on others, including Larry Tribe, who he’s gotta get a dig in there, that is – I wouldn’t say that on this show!
Thomas: That’s armature stuff!
Andrew: Yeah, yeah.
Thomas: That’s armature stuff.
Andrew: I’m outta words for how ridiculous that is. Next! [Laughs] Laura says “now Alan, why did you want to be called a constitutional representative rather than like everybody else? I mean, you have to have a special title, everybody else is just part of the team,” and Dersh says “no, it’s exactly what I did. It’s what I did in the O.J. Simpson case and what I did in the second Claus von Bülow case. I’m of counsel, I have a special role to perform. My role is to present the constitutional argument. I’m not meeting with the team on strategic issues, I’m not involved in whether witnesses should be called or whether facts should be alleged. My argument is limited as it was in O.J. where I just argued the legal issues and that’s very common.”
I just wanna say, as somebody who was Alan Dershowitz’s student in 1994 while he was on the O.J. legal defense team, two things. Number one, he was a member of O.J.’s legal defense team, proudly. Did not call himself a constitutional representative or whatever, he was very clearly on the O.J. defense team. We discussed that in class, I had him for criminal law, every single class period.
Thomas: [Laughs]
Andrew: And number two, the idea that he was not meeting with the other members of the defense team and engaged on specific facts is also 100% false and in fact often solicited comments from students. I had a friend of mine named Ben who wrote an entire 3-page paper on explaining the thumps that Kato Kaelin might have heard in connection with the case and was saying, look, that could be an air conditioner and he said he was standing on top of an air conditioner. I don’t even remember the point of the thumps anymore!
Thomas: [Laughs]
Andrew: This is O.J., it was 25 years ago, but what I do know was Alan Dershowitz 100% was involved with factual witnesses, strategy, the full level of the O.J. defense team.
Thomas: He’s just full of crap.
Andrew: Yeah.
Thomas: I mean…
Andrew: Yup, it just is and it’s, again, I refer back to the episode that we did. I took three classes with Alan Dershowitz in law school, and if there were more I would have taken more. He was an inspiration to me in many ways and it was very, very hard for me to get to this point. I am not throwing him under the bus because now he’s defending Trump or whatever, this was a long time in coming and it’s sad for me to see.
So there you go, that’s [Sighs] day one of the Trump impeachment defense team.
Thomas: Yeah, I guess we’ll keep an eye on it and see if it’s even – it’s the upside down world, so it’s hard to really give much response to what they’re trying to say. I dunno, it’s impossible. Alright well we’ve got to get to even more craziness in Tulsi Gabbard’s lawsuit!
Tulsi Gabbard v. Hillary Clinton Lawsuit
[Segment Intro]
Thomas: Wow! It was funny because I saw – so she sued Hillary Clinton for $50 million and I think she’s also in the past sued Google for $50 million. It’s just so funny because just today – you know when you see the candidates on, I think it’s a Facebook thing or some sort of social media thing where it’s like “donate now! We’ve gotta get to $1.5 million by blah blah blah” and you see the little status bar thing on the donations?
Andrew: Mm-hmm.
Thomas: And I saw one for Tulsi and I was like wait wait wait, you’re not factoring in your $50 million windfall you’re about to get!
Andrew: [Laughs]
Thomas: Hold on! I can move that bar quite a bit right now. That’s any time you’re gonna have that coming in so why are you asking me for donations? So let’s break down the Tulsi Gabbard defamation lawsuit.
Andrew: Yeah, and we’re gonna do this the same way we usually do, reading a Complaint backwards, but we’re gonna make two kind of preliminary exceptions, because I am going to tell you, I’m gonna back this up with specific citations to the Complaint.
To the extent that this lawsuit has been characterized as suing Hillary Clinton over saying that Tulsi Gabbard is a Russian asset, that is correct. The defining paragraph that sets forth what is referred to as the capital-D, capital-S, Defamatory Statements, are those three sentences taken – I don’t wanna say taken out of context from Hillary Clinton appearing on David Plouffe’s podcast. You broke that down on – which episode of SIO was that? I thought you and Jamie did a really, really excellent job with that back in October.
Thomas: Yeah, sorry, I can’t remember off the top of my head!
Andrew: [Laughs] Anyway.
Thomas: Yeah, but it might be important because by the way she didn’t even name Tulsi Gabbard. It’s also not clear from the context becauyse I went back and I’ve listened to it a bunch of times and what people thought she said is not quite what she said and it’s not even clear she’s talking about – it’s not even clear she intends to call Tulsi Gabbard any sort of Russian asset. She calls Jill Stein a Russian asset, and when she does she says “oh, and that’s someone who’s also a Russian asset,” so the implication is kind of like also, meaning you intended to call the last person one as well, you know. Anyway, there’s so much ambiguity in what she said, so I’ll be very curious to see how this lawsuit paints it.
Andrew: I think that’s right, and this is – it’s why I wanted to sort of clear this point up first because there is ambiguity and what happens is, I’m gonna read Clinton’s exact words. Let me bracket all of this. I do not think disputing that she called Tulsi Gabbard a Russian asset is a smart aspect of the defense strategy.
Thomas: Right.
Andrew: I don’t think it’s clear, but I certainly wouldn’t. If I were the lawyer I would say the situation is not the way it is portrayed by Tulsi Gabbard in the lawsuit for the reasons that I’m about to explain, but we assume for purposes of [Laughing] this Motion to Dismiss that she did.
Thomas: Yeah, yeah, yeah.
Andrew: So, right. Hillary Clinton says, “She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far, and that’s assuming Jill Stein will give it up, which she might not ‘cuz she’s also a Russian asset.” Then Plouffe, inaudible. There’s just a burble on the podcast. Then Clinton says “yeah, she’s a Russan asset, I mean totally.”
Again, there’s a little bit of pronoun antecedent there, right?
Thomas: Yeah.
Andrew: That, grammatically, sounds like – grammatically that definitely refers to Stein. In context it’s ambiguous whether that refers to Stein or to the unknown candidate that again, I don’t wanna play too fast and loose. Wink, wink, nod, nod we know that means Tulsi Gabbard.
Thomas: Oh yeah, we know she’s talking about Tulsi, yeah. No I wasn’t trying to pretend otherwise.
Andrew: And I don’t think we should. So yeah, call that step negative one. We could dispute the factual premise, but let’s not and I think that obscures the issues.
Thomas: Sure.
Andrew: So let’s assume Hillary Clinton called Tulsi Gabbard a Russian asset. As we said on Thursday’s show, kinda strikes you intuitively that you ought to be free to call a candidate a Russian asset during a political campaign season. In fact, historically, we know that this happens all the time.
So now we move to step zero. [Laughs] Which we always do in defamation cases, which is, is there an operative anti-SLAPP statute?
Thomas: Oh. I thought we were gonna ask “Is Hillary Clinton a public” [Laughs] I think the answer’s yes.
Andrew: [Laughs] I think maybe, yeah. You know, this came out I thought really, really well and in a fun way with Carrie Poppy and Matthew Strugar at our live show. California is a robust State with one of the very best anti-SLAPP statutes – that is Strategic Lawsuits Against Public Participation. What they do is they specifically provide expedited procedures for getting defamation cases dismissed when the purpose of the lawsuit is to try and intimidate you from not talking about matters of public concern.
This 100% is a matter of public concern. Spoiler, New York is one of the very worst States in terms of anti-SLAPPs.
Thomas: Really?
Andrew: Yeah, and I don’t know why.
Thomas: Huh, wouldn’t have thought that.
Andrew: I wouldn’t think so either, maybe this will spawn some change. I mean, not the least of which is, I would think the New York Times would have some political clout! New York’s anti-SLAPP laws are found at the New York Civil Rights Laws sections 70-a and 76-a and then another section of the New York code and it protects SLAPPs brought by individuals or entities seeking permits or applications from a governmental body over efforts by the defendant to report on, comment on, rule on, challenge, or oppose, such applications.
So this is, think about it, you have some kind of a permit. You get a liquor license or you wanna get a zoning permit to put a particular building in a particular place. You and only you are privileged to bring an anti-SLAPP suit in New York. That does not apply to Hillary Clinton who is not trying to build a bar somewhere, although Hillary, if you’re listening and you build a bar, I will come patronize your bar.
But no, she’s not, so because she’s not a public applicant or permittee there will be no expedited procedure to get rid of this.
Thomas: Wow.
Andrew: So what that means, spoiler, is that it is highly likely – if I were Hillary Clinton’s lawyers- Hillary Clinton has better lawyers than me so, you know, you don’t need to take this piece of free advice. I would not move to dismiss this case. I would answer the Complaint and say yeah, we welcome discovery, let’s bring it on.
Thomas: Really? Hmm.
Andrew: I would do that because I feel fairly confident in saying that Hillary Clinton can afford to pay her lawyers for this?
Thomas: She has more money? Yeah.
Andrew: Yeah. So what will happen if she moves to dismiss, a Motion to Dismiss says if we assume that all the facts are true it does not state a cause of action under law. There is a good argument, there’s the argument that I mean, but there is also the case that in a defamation lawsuit you would want to say okay, well, let’s see all the facts and all the context and all of everything first and then we can proceed from there. I would not want to run- I know this is gonna be hard for her lawyers to hear because I’m a very often in their shoes.
Thomas: Yeah right, won’t her lawyers be like “Alright! More billable hours!”
Andrew: [Laughs] Well, but also what you wanna do is when you assure a client that a lawsuit is nonsense you’re then like great, we’re gonna move to dismiss!
Thomas: Mm-hmm.
Andrew: Well are we gonna win? Well, yeah, we’re probably 2-1 to win our motion to dismiss and I would say that’s right. If I were estimating this and it were my client and my client were not Hillary Clinton I would say look, we have a really, really strong case that this just does not state a legal claim even if everything is as it says, but the downside risk is it’s defamation. You can always say it’s about how this was perceived and there’s some risk that the judge will allow it to go forward. It’s why I think you should just embrace that mantle.
But now let’s read the actual Complaint. First step we always do is we scroll to the very end of the Complaint and we see who are the lawyers who brought this Complaint? Here, holy clownhorn, It is Pierce Bainbridge Beck Price & Hecht, which is a real law firm. At one point one of the fastest growing law firms in America. They were formed in 2017, they now have offices in five different cities from another big firm, Quinn Emanuel, incidentally a firm with which I interviewed way back at the dawn of recorded time. They have a very ambitious litigation practice, it is a trial lawyers firm.
If you want some fun connections, and I know you do! [Laughing] Pierce Bainbridge also represents both Rudy Giuliani and George Papadopoulos. [Laughs]
Thomas: [Laughs]
Andrew: Look, I don’t wanna put too much into that. Particularly big firms, some big firms have a reputation as being politically leaning one way or another, but many big firms have a split identity and are just like look, we’re capitalists! [Laughing] You wanna tell me I shouldn’t take Rudy Giuliani’s money? Okay, great, but I’m gonna take Rudy Giuliani’s money.
Covington & Burling is a really, really good example of that. While I was there the entire anti-trust division at Covington & Burling, with which I did considerable amounts of work, had worked in the Department of Justice under Ronald Reagan and were some of the most politically conservative people I knew. Present day Covington has sent people into both the Obama and the Trump administrations, so you know, you don’t necessarily impute identity, but it is kinda noteworthy that, you know, Pierce Bainbridge represents both Giuliana and Papadopoulos.
Thomas: [Laughs]
Andrew: Also looking at the specific lawyers – there are three lawyers who are listed on the Complaint. David Hecht, David Hecht is one of the named partners. He’s the fifth guy in the whole firm. He’s an IP lawyer, he’s the one who tried the Apple v. Samsung case, he’s a big, big deal, he’s a super good lawyer. Not a defamation lawyer, but he’s really good. Dan Terzian is also on there, he’s a partner, he’s a litigator, he was at big firms, he’s got real credentials. Lead counsel is Brian Dunne, and Brian Dunne is Tulsi Gabbard’s lawyer. He’s represented her in all of her lawsuits – in all of her major lawsuits including her lawsuit against Google.
Thomas: Let me ask you something.
Andrew: Yeah, go ahead.
Thomas: How is she funding this? You can’t use campaign funds for this kind of thing, could you?
Andrew: No you cannot.
Thomas: Hmm.
Andrew: So that’s a really good question.
Thomas: How much does she get paid to go on Tucker Carlson’s white power hour?
Andrew: Yeah, I dunno.
Thomas: She goes on a lot.
Andrew: She’s done that some 30-odd times during the Obama administration, she appeared on various Fox News programs. Yeah. Brian Dunne, also an accomplished lawyer, but if you want more – again, we’re lamp shading this a little bit.
If I were trying to figure out the political identification of Brian Dunne I would point out that he clerked for Jay Bybee. Jay Bybee was the associate Attorney General under George W. Bush who signed off on Fredo Gonzales’ torture memos before being appointed to the 9th Circuit, he’s a very conservative guy. Before that he clerked for Susan in the New York State Supreme Court, the New York Court of Appeals. Also a Republican nominee. Again, I clerked for the most conservative judge on the Maryland Court of Appeals so you know, you want to do that cautiously, but I will tell you when I look at Brian Dunne’s CV, when I look at his clients, when I look at his history, when I look at his background, this screams Republican to me.
Again, I have some Republican clients so there’s no law if you’re Tulsi Gabbard saying that you have to hire an Andrew Torrez to represent you. But if you’re thinking, boy, does Tulsi Gabbard seem to associate with a lot of Republicans for a Democrat? This is a little bit more evidence.
Thomas: Yeah, almost exclusively.
Andrew: Yeah. Okay, so now we’ve read the bottom of the Complaint, let’s scroll backwards.
Thomas: It’s, like you said, the point is real lawyers.
Andrew: Real lawyers-
Thomas: Most of the time when we read these it’s somebody who does Planet Earth Federation Law, fictional stuff, but this is real.
Andrew: Yeah.
Thomas: Okay, so let’s see how they did.
Andrew: So then we go back and we read the cause of action. This is a one count Complaint, it is defamation and it is related to that statement. The key paragraphs here are paragraph 53 which alleges that this is defamatory per se. [Sighs]
Thomas: Hmm.
Andrew: The importance of alleging that defamation is defamation per se has to do with damages. You mentioned that the lawsuit seeks $50 million in damages. Damages are also an element of proving the offense. So in other words, if I prove – classic example, let’s go back to the one that I always use which is you allege that I trespass on your property. The significance of defamation per se is that proving damages is an element of the crime in addition to it’s the money you get if you win.
Thomas: Right, so you have to prove that the words caused you damage, right? Whereas if it’s defamation per se you don’t have to do that, it’s just assumed?
Andrew: It’s just presumed, that’s exactly right.
Thomas: Okay.
Andrew: Yeah, so let’s take our classic trespass example. It is technically trespass if I come by and I walk on your front yard, you can be like “you’re trespassing on my property” and technically that’s true. But if it’s just my foot happens to hit the edge of your grass from the public sidewalk then you would bring the lawsuit and my defense would be one of the elements of this tort has not been proven, which is you didn’t suffer any damages.
Thomas: Hmm.
Andrew: Now you do if I sneak over your fence and I break stuff and steal stuff, but if my foot just happens to hit the edge of your grass, even if everything else is there that’s not a tort.
Thomas: Now if I remember my law from being a brilliant and studied lawyer-
Andrew: Mm-hmm?
Thomas: There’s what, moral turpitude? Moral turpentine?
Andrew: [Laughs]
Thomas: Something like that? I don’t know that I would think saying someone is a Russian asset would be defamation per se, maybe I’m wrong but I feel like you’d need to prove why that matters.
Andrew: Yeah, so as it turns out in New York the four standards are: Number 1-
Thomas: It’s like venereal disease? [Laughs]
Andrew: [Laughs]
Thomas: [Laughing] There’s a couple old timey ones, aren’t there?
Andrew: You are so dead on it’s funny! So, number 1) Charging a person with a serious crime.
Thomas: Right, yeah, yeah, sure.
Andrew: Being a Russian asset doesn’t fit that category. 2) To injure another in his or her trade, business, or profession.
Thomas: Yup, right. Yeah. Almost.
Andrew: [Laughing] 3) To claim that the Plaintiff has a loathsome disease. [Laughs]
Thomas: [Laughs]
Andrew: Or 4) To impute unchastity to a woman. Again, I will point out that was repeated-
Thomas: Loosely put it under that category, I guess.
Andrew: [Laughs]
Thomas: Not loyal to America.
Andrew: The argument as made, and here I’m just gonna quote – this is paragraph 53. “The defamatory statements” and again, remember, that is accusing you of being a Russian asset, “falsely impute Tulsi with a lack of fitness for her office and profession.”
Thomas: Yeah.
Andrew: “They would tend to harm and indeed have harmed Tulsi in both her office and profession, both political and military, and they have assailed her integrity. They tend to expose and have exposed her to contempt, ridicule, aversion, or disgrace.” Then it says they falsely impute criminal conduct to Tulsi.
Thomas: Hmm, I don’t know about that.
Andrew: That last part is, yeah, the most ridiculous.
Thomas: Yeah.
Andrew: Because we can say you’re disloyal to America without saying you have committed the official crime of treason.
Thomas: Yeah.
Andrew: In fact, we’ve been over that. So you could be actively working to bring down the United States as a Russian agent and nevertheless not be accused of committing a crime. Well I do that all the time when I am talking to liberals on Twitter who want to spread the “yeah why does it matter, they’re all the same” and I’m like you do understand that you’re acting as a Russian agent when you do that, right? I mean that with 100% sincerity.
Thomas: Who wants to go in with me on suing Torrez for $50 million?
Andrew: [Laughs]
Thomas: I’ll give ya half!
Andrew: Yeah, send it to openarguments@gmail.com and ignore the fact that I read a lot of the emails. [Laughs]
Thomas: [Laughs]
Andrew: Okay, so that is the defamatory per se section. The question is, [Laughing] is calling somebody a Russian attributing unfitness for their profession? Here if you squint – this is what I mean. Obviously, no. There’s zero cases that say calling somebody a Russian asset or a Chinese asset or a communist asset is defamation per se. In fact, some of the major cases have this issue as part of a component to it.
For example, Gertz v. Welch is a major defamation case. The underlying allegations in that case related to a John Birch Society publication calling Gertz a communist sympathizer. You might say okay, well that kind of fits, but in that case there were allegations of specific illegal conduct. Gertz was a lawyer and he had won a civil case against a police officer and then the John Birch Society was basically like oh, yeah, but that was all fake news and Gertz worked, conspired with the prosecutor to have him framed. There was much more on the bones, it wasn’t just saying Gertz is a communist.
By the way, this kind of allegation is exactly the kind of allegation that is described in New York Times v. Sullivan. If you go, this is page 273 of that decision and footnote 14, because we were talking about a public official. Now the public official there was a candidate for New York City Commissioner. Hillary Clinton, I think, probably slightly more prominent than a New York City Commissioner.
Thomas: Probably.
Andrew: But Sullivan says that “Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ [Suppressing such speech] can be justified, if at all, only by a clear and present danger of the obstruction of justice.”
Thomas: Huh.
Andrew: “If judges” and there’s some cases about how prior to New York Times v. Sullivan that it was basically okay to say that judges were corrupt. The judge couldn’t turn around and sue you.
Thomas: Ohh.
Andrew: There were a bunch of cases that were sort of on that track.
Thomas: Yeah but that makes sense as something you’d want to be able to do in America.
Andrew: Yeah [Laughs] Exactly right! So then Sullivan says “If judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate,’ surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.”
Thomas: [Laughs] That’s a good response.
Andrew: I thought that was a pretty good response.
Thomas: Okay.
Andrew: Now there are some old, old cases, still good law. One is from 1949, one is from 1952. The 1952 was a 10th Circuit Case called State Farm Bureau Federation v. National Farmers Union Service Corp. which says “It is generally accepted that calling someone a communist sympathizer is to subject such person or organization to public hatred, odium, and contempt to his immediate harm and is therefore libelous per se.”
Now I would say that’s probably slightly different in 1952, those cases predate New York Times – there are lots of reasons to distinguish them, but this is why I said what I said at the outset, which is these are not great arguments, but they’re better than, for example, Trump’s legal arguments, right? [Laughs] They’re not imaginary arguments, they don’t depend on lies, misrepresentations of fact. So when I say something like you could lose a Motion to Dismiss, this is one of the things that I mean that you could lose on a Motion to Dismiss. Again, not because you ought to, but because the general view of a judge is well let’s just figure it out.
The Complaint also alleges the New York Times standard. This is paragraph 57, that Clinton knew the statements were false or acted in reckless disregard of the truth or falsity of the statements. As we are reading backwards, now what we would ordinarily do we have already done which is we would go through and figure out, okay, what exactly are the facts that are alleged here? Those facts are pretty clear, but we can go up to that, it’s paragraph 17.
Thomas: Well before we hear paragraph 17 we’ve gotta take one more quick ad break and then we’ll hear about paragraph 17, everybody.
[Commercial – ziprecruiter.com/oa]
Thomas: Alright, let’s hear about that paragraph.
Andrew: [Laughs] Here is where I think things really start to collapse. So paragraph 17 says, it’s the Campaign HQ with David Plouffe. “Clinton stated the following regarding (quote) ‘somebody who is currently in the Democratic primary’ who (quote) ‘they are grooming to be the third-party candidate’’ and this is the entirety of what they quote. These three sentences. “She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far, and that’s assuming Jill Stein will give it up which she might not because she’s also a Russian asset. Yeah, she’s a Russian asset.”
We went through the grammatic construction of that, but now what I wanna add in addition to the general weak tenor of that allegation is that – this is a point that you actually touched on in the SIO episode breaking it down. It is consistent to say that somebody is an asset of the Russians to say that that means that they are an unwitting asset of the Russians.
When you look at the allegations specifically in the first two sentences from that, which are the only ones that get there, are a predicate to calling her a Russian asset, they’re not about things that Tulsi Gabbard is alleged to have done. They say she’s the favorite of the Russians. Well how the hell does Tulsi Gabbard know whether or not she’s the favorite of the Russians? They have a bunch of sites and bots and other ways of supporting her so far. That is factually true, that is supported by accurate reporting from The Guardian and elsewhere, that Russian bots swarmed out and supported Tulsi Gabbard, that dates back to February of 2018.
Those are the two factual allegations, and as far as I can tell it is either something that cannot be proven false for sentence number one, and something that is proven true in sentence number two. Neither of those is a statement about anything that Tulsi Gabbard has done. If you were going to move to dismiss that would be the basis for moving to dismiss.
When I look through the case law I cannot find – an edge case somewhere? There might be an edge case somewhere, but I find a lot of cases including a recent one involving an alleged communist sympathizer named Tu Nguyen where the allegations are not directed against the actions of the individual bringing the defamation lawsuit. Courts have said that’s not defamation. “The court finds that it need not address [[issues of] damages because the allegedly defamatory statement is not a verifiable fact.”
I dunno how you can verify the fact of “favorite of the Russians.” That’s not a thing we can prove in discovery. There is zero evidence [Laughing] that Hillary Clinton or Tulsi Gabbard can introduce during discovery to help way in on that. So if you want the argument for why you should move to dismiss, there’s your continuing support on that.
I think Hillary Clinton ought to just answer the Complaint and say okay, great, we’re gonna depose Tulsi Gabbard, we’re gonna seek all the documents, because we are going to prove that she is a Russian asset and if you’re Tulsi Gabbard and you filed this lawsuit, the very first thing I would do as Hillary Clinton’s lawyers is say okay, I want all communications between you and any Russian government official or person connected to any official of the Russian government dating back to, and pick a time. 2012? Go back a decade and then do for any Russian business interests and she’s gonna howl and complain about undue burden, but that’s the core!
You’ve said I defamed you by calling you a Russian asset, you’ve denied that you are, let’s see what your documents show. Let’s see what those connections are. We know that Tulsi Gabbard has … we shouldn’t say what we know. [Laughs]
Thomas: [Laughs]
Andrew: ‘Cuz I’ve egged on that lawsuit in calling her a Russian asset. I would be very interested in seeing what those documents show. How ‘bout we say that.
Thomas: Okay, sure! You don’t wanna say what we suspect?
Andrew: [Laughs] Why don’t you say what we suspect, Thomas? [Laughs]
Thomas: I don’t – I don’t know what you suspect! Now I wanna know!
Andrew: [Laughs]
Thomas: Don’t put me on the hot seat. Tulsi’s lawyers: I don’t know. I mean I’ll still do a deposition for the entertainment value. I dunno-
Andrew: Oh gosh! I would love to see you get deposed over this. This would be fantastic.
Thomas: I would probably do, you know we talked about this when we did the Alex Jones deposition for LAM – which was so good, by the way everybody, that we had to release it on the main feed so hopefully everybody’s heard it, but just an indicator that you should be listening to LAM every month because it’s awesome. But anyway, I would probably just get together with – I dunno if I wanna implicate you, but I’d get together with my attorney and come up with a strategy to be the most unhelpful witness. It’d be a lot of what Alex Jones did.
Andrew: [Laughs]
Thomas: It’d be fun, it’d be good times.
Andrew: Yeah, and I do wanna correct my dating error. This is still the, like, writing out 2020 in its full on all my checks?
Thomas: Don’t we all!
Andrew: [Laughs] Not that, but I do have some confessions on that that maybe we’ll put on a Patreon special. No, I said February 2018, February 2019 is when NBC News, Robert Windrem and Ben Popken published an NBC News analysis of the main English language news sites employed by Russia in its 2016 election meddling and that demonstrates that (quote) “representative Tulsi Gabbard has become a favorite of the sites Moscow used when it interfered in 2016” (end of quote).
I will say this, since that language is word-for-word identical [Laughs] to the language that Hillary Clinton used on David Plouffe, repeating something that was reported in a reputable news outlet is 100% a defense to, at minimum, the New York Times v. Sullivan actual malice standard of proving defamation because you can’t act with reckless disregard for the truth if what you’re repeating is something a reputable journalist said, and that’s what they said!
Specifically, since Gabbard announced her intention to run on January 11th there have been at least 20 Gabbard stories on three major Moscow-based English language websites affiliated with or supportive of the Russian government. RT (the Russian owned TV outlet), Sputnik News (a radio outlet), and Russia insider (a blog that experts say closely follows the Kremlin line). The CIA has called RT and Sputnik part of (quote) “Russia’s state-run propaganda machine” (end of quote).
So once again I’ve decided to throw caution to the wind. These are the facts as we know them from responsible, vetted, mainstream, journalistic sources. I would love to know what other connections there are between Tulsi Gabbard and Russia, so Hillary, if you’re listening-
Thomas: Russia, if you’re listening! [Laughs]
Andrew: -Please fight on! Please fight on.
Thomas: Interesting.
Andrew: So there we go!
Thomas: Very interesting. Alright, well Andrew, it’s been a while but this was a Wild Card Segment failure.
Andrew: [Laughs] I know!
Thomas: This was such a Wild Card Segment failure that we didn’t even plan it as a Wild Card segment. You turned a non-Wild Card Segment into a Wild Card and then failed it!
Andrew: I’m sorry.
Thomas: It’s okay.
Andrew: I so want to-
Thomas: There’s a lot to talk about!
Andrew: I so want to talk about the Astros!
Thomas: Yeah.
Andrew: This is so fascinating, and there are so many really, really good questions. I wanna add in addition to this, give a little teaser, I have been approached and am going to give a guest lecture at the University of Maryland on baseball law, and specifically on MLB’s anti-trust exemption and current legal issues. I have secured permission to air that on the show, so I have lots of baseball law to share with all of you, I’m very, very excited of it. But we can’t do a two hour show here! So it’s on me, and I’m sorry.
Thomas: Ah, yeah. Yeah, sorry everyone. It’s not just the length of the show, it’s also that, you know, some of us have wives and a baby and a toddler that we have a set time that we could record and it’s hard to go beyond that time, so sorry about that. Alright, that said, we have just enough time to thank our top patrons, our hall-of-famers, our all time greats over at patreon.com/law.
I don’t think I can make you read all of these, Andrew, I’ll try to pull my weight around here and we’ll see how much Brian has to edit my coughing.
[Patron Shout Outs]
Andrew: Thank you all so much, and again remember you can get in on this delightful part of the show, head on over, patreon.com/law, sign up for $5 bucks! Come on, you can do it.
Thomas: Alright, time for T3BE!
T3BE – Answer
[Segment Intro]
Andrew: Alright!
Thomas: Answer time, not [Groans] a lot of faith in this one, but who knows?
Andrew: So this question was, several defendants, senior executives of a corporation, were charged with securities fraud. The government called as a witness another executive of the corporation who had not been charged and had been given immunity to authenticate handwritten notes that she had made after meetings of the corporations management team in which the alleged fraud was discussed. The witness testified she had prepared the notes on her own initiative to help her remember what had happened at the meetings. After this testimony, the government offered the notes into evidence to establish what had happened at the meetings.
Now, you eliminated immediately off the bat B, no because-
Thomas: Well, just for everybody, the question is should the witness’s notes be admitted?
Andrew: Right, sorry.
Thomas: [Laughs]
Andrew: [Laughs] I was just gonna go right on ahead.
Thomas: Just in case you forgot, yeah.
Andrew: Should the witness’s notes be admitted? As usual two no answers, two yes answers. You eliminated immediately no, because the witnesses immunity agreement with the government makes her notes untrustworthy and thus substantially more prejudicial than probative. Good elimination. That grant of immunity was given-
Thomas: That seems like nonsense.
Andrew: Yeah, after the notes were made and so does not affect the reliability of the notes. Then in addition once you’ve been immunized, one of the fundamental justifications behind giving immunity is that witness is now presumably more free to tell the truth. In any event, that’s a nonsense answer, good job eliminating it.
You also eliminated, I think, one of the attractive distractors in-
Thomas: Hmm.
Andrew: -yes because they are business records.
Thomas: Yeah, that was, uh … interesting call.
Andrew: Yeah, business records are an exception to the hearsay rule, but business records must be a regular practice and they must be kept-
Thomas: Gosh dang right!
Andrew: Yup.
Thomas: So what you’re saying is I analyzed that perfectly.
Andrew: Absolutely, 100% perfectly.
Thomas: Because I said exactly all that.
Andrew: Yeah!
Thomas: Ah, man!
Andrew: You did!
Thomas: You know, Andrew? I’m learning a lot from you.
Andrew: Awww.
Thomas: You can, you know, take some credit for the fact that I answered that perfectly.
Andrew: [Laughs] So that leaves either A, your answer, no because the notes are hearsay not within any exception. Kind of a default answer. Or D, yes because they are past recollections recorded. I am pleased to tell you, Thomas, A is the right answer!
Thomas: Yesss! Alright!
Andrew: They might arguably be past recollections recorded, but the way in which you introduce a past recollection recorded is by having the witness testify that they do not presently recall enough to testify without the notes.
Thomas: Ooooh!
Andrew: So you might say, suppose I wanted to introduce-
Thomas: That makes sense!
Andrew: What kids you decided to hang out with in high school and you would say well I don’t presently have a recollection of what I was doing in 1990.
Thomas: Hmmm.
Andrew: But I kept a calendar and if you let me consult my calendar-
Thomas: Yeah.
Andrew: -then I can say I was hanging out with PJ and Squee drinking beers.
Thomas: And wouldn’t you know it, I didn’t write “I am a rapist” in my own calendar, so…
Andrew: Yeah.
Thomas: I guess I’m free to go.
Andrew: Obviously using the Brett Kavanaugh example because it struck me at the time how odd it was that nobody was pointing out that a high school kid was essentially keeping the kind of routine records that are used to introduce something in court. I can tell you as somebody who’s dream it was to be on the Supreme Court when I was 16 years old – and also now [Laughs] that I did not, as a high school student, maintain records which would qualify as past recollections recorded, but in any event.
Thomas: That’s so – I’m so glad. It’s really clicking for me because hearsay is so difficult, for some reason I just can’t get it in my mind, but I feel like I’m getting slightly better. And past recollections- in other words, this is a reason that the notes would actually be better evidence than testimony.
Andrew: Exactly right!
Thomas: Because it’s like I dunno, who knows? Whereas normally you just want it to be – the testimony would be the best evidence-
Andrew: Right.
Thomas: Yeah, okay.
Andrew: Yeah! Remember, the whole thing – I love the way you’re putting it together and again, this is what the show is meant to do, not lament the decline of Western civilization as a criminally insane gameshow host steers us into the abyss. Understanding the way these rules interact and that there is a real purpose behind it.
Thomas: Mm-hmm.
Andrew: The reason you don’t want hearsay, the reason there’s a general rule about hearsay is it’s unreliable. The hearsay itself is not subject to cross examination, it could be self-serving. There are lots and lots of reasons you would say, well I don’t want to put somebody on the phone – the phone – I don’t wanna put somebody on the stand- I was thinking of the telephone game in the back of my head, that’s why the malapropism came out.
Thomas: [Chuckles]
Andrew: But, you know, to say well Sam told Suzy that Sally saw Johnny, and you’re like great, just get to the end of the chain and let’s call Johnny to the stand.
Thomas: Yeah, that part I get. The part that’s difficult about hearsay is that somehow everything is hearsay?
Andrew: [Laughs]
Thomas: Almost everything.
Andrew: It’s true.
Thomas: You’re like, what if I’m just telling you what I saw? Somehow that’s also hearsay. I don’t know.
Andrew: That’s my second wish. So my first wish would be to get non-lawyers to understand that circumstantial evidence is still really, really good evidence.
Thomas: Right, yeah.
Andrew: But my second wish would be to get people to understand that hearsay is almost everything! [Laughs] So yeah, I think you’re right. Congratulations, you’re definitely right on T3BE!
Thomas: Hoo! Yeah, well what’s my percentage? Has that moved at all?
Andrew: The noodle has moved!
Thomas: Hoo-hoo-hoo!
Andrew: You are rounding up to 55%, it is 54.6.
Thomas: Oh. Well that’s less exciting.
Andrew: Hey, we’re getting there. We are gonna get that number starting with the 6 real soon now.
Thomas: I don’t think that really moved the noodle, that’s just the tip of the noodle curved up slightly, but the rest of the noodle is still-
Andrew: Look, the moral arch of the noodle is long.
Thomas: [Laughs]
Andrew: But it bends towards justice.
Thomas: It bends towards roughly 55%, let’s be honest.
Andrew: [Laughs]
Thomas: It doesn’t really – [Laughs] The moral arch of the noodle! That’s awesome, that was a good one, Andrew. Okay, well, let’s find out who our big winner is this week, hop in that time machine, see who moved their noodle.
[Segment Intro]
Andrew: Yeah Thomas, this week’s winner is Odin The Law Dog, @canem_advocatus on Twitter which, by the way, even if you’d gotten this wrong I kind wanna give a shout out to Odin The Law Dog, that’s pretty fantastic, who says “it’s gotta be A. She was given immunity so her 5th amendment rights to self incrimination wouldn’t prevent her from testifying, so unless she actually says ‘I can’t remember’ there goes D. She made them on her own accord for her own memory so no C and B is nonsense.”
That is – I should’ve just read Odin The Law Dog. That is exactly what I said but like 87,000 times shorter. Perfectly concise, exactly correct. I want to tell you Thomas, a lot of people got this wrong on Twitter. There were a lot of C’s, there were some D’s, there was a B here and there. Not too many people got it right so congratulations, you got a tough one. And back to Odin, sorry! [Laughs]
Thomas: Well, there’s a reason that you and I are the professional lawyers.
Andrew: There you go, that’s right! So anyway, congratulations Odin The Law Dog, everyone give them a follow, @canum_advocatus or search Twitter for Odin The Law Dog, give ‘em a follow, super cute little picture of a dog, you’ve gotta see this.
Thomas: Not everyone can do it Andrew, just you and I, professional lawyers and a dog! And also that cat, Buttercup.
Andrew: [Laughs] Yeah, Buttercup’s Legal Services, a dog in a top hat, but you know.
Thomas: It’s very difficult.
Andrew: But there you go.
Thomas: Only professionals like you and me and that cat and that dog. Alright! [Laughs] Sorry that Andrew blew it and we didn’t get to baseball law, which I know everybody loves, but we will find a way, we’ll get back to that somehow and we will also see you folks for Rapid Response Friday. See you then!
Andrew: See you then.