Listen to the episode and read the show notes
Topics of Discussion:
- Idiotic Legal Pleadings
- Baseball Law: The Return of Baseball?
- Bill Barr Doesn’t get Emergency Control over Judicial Branch
- T3BE – Answer
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 373, I’m Thomas, that’s Andrew. How’re you doing, Andrew?
Andrew: I am fantastic, Thomas, how are you?
Thomas: Well I’m so excited, we’re doing a happy show!
Andrew: That’s why I’m fantastic! [Laughs]
Thomas: I think you’re always fantastic!
Andrew: [Laughs] I love doing this show, so… but no, I really thought about this a lot, I know you and I have talked about this a lot. I get that these are trying times and folks have said hey man, [Laughs] You can’t keep bumming me out every week, so this is our effort not to bum you out this week.
Thomas: Hey, it’s not us. Don’t blame us though.
Andrew: Well, it’s the universe.
Thomas: Yeah.
Andrew: We just live in it, so…
Thomas: But this’ll be fun. Alright, as promised it’s happy times, we’re gonna talk about some idiotic legal pleadings, that’s always fun, the return of baseball. I’m very skeptical of whatever [Laughs] theory this is from Andrew. We’ll see, we’ll have to see whether we buy into this good news. I don’t see sports returning for a very long time, but can’t wait to talk about that, and then also some other misleading stuff that we’re gonna debunk I think. It’s just happiness all around, right?
Andrew: Yeah, you can’t ask for more than that. Well you can, but you’re not gonna get it, so…
Thomas: [Laughs] You can’t reasonably ask for more! Here we go, let’s start us off with some idiotic legal pleadings!
Idiotic Legal Pleadings
[Segment Intro]
Andrew: Oh man, where do I begin? I know where I want to begin. I want to begin with your friend and mine, Michael Cohen. [Laughs] This is perhaps the most mind – well, there are only two that we’re gonna talk about here, but of the two this one is the most mind boggling to me because I assumed when I saw these pleadings that Michael Cohen was maybe, you know, representing himself? Not the case.
Thomas: Huh. So their not well done is what you’re saying?
Andrew: [Laughs]
Thomas: A little haphazard?
Andrew: A little bit. I was befuddled by this. So what am I talking about that I’m befuddled about? What ruling just came in? A couple of months ago Michael Cohen filed a motion to reduce his sentence from 3 years in prison to 12 months to be served on home confinement. So get out of jail-
Thomas: [Laughs] Which is practically nothing right now! With everybody.
Andrew: [Laughs] We’re all in home confinement, that’s exactly right!
Thomas: Yeah.
Andrew: Put a pin in that because [Laughs] your joke is actually going to become relevant in about four minutes. Start your timer on that.
Federal Rule of Criminal Procedure 35(b) provides that you may receive a reduction in sentence for rendering (quote) “substantial assistance.” There’s only one problem, I’m gonna read you the text of Federal Rule of Criminal Procedure 35(b)(1) and you tell me if you can spot the flaw:
“Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” See any problems?
Thomas: Is that it?
Andrew: Yeah that was it. That’s the whole rule.
Thomas: Mmm. Well we didn’t prosecute Trump. I dunno, I guess I don’t see it. What is the problem?
Andrew: So the introductory clause: Upon the government’s motion. [Laughs]
Thomas: Oh!
Andrew: Uh, not upon the motion of the defendant. You don’t get to make a 35(b), the prosecutor has to say no hey, look, we think you’ve rendered substantial assistance in connection with another case and so we want to make a 35(b) motion to reduce your sentence.
Thomas: So are you telling me that Michael Cohen and whoever may or may not be representing him tried to do a puppet? Like here, it’s the government, look what the government’s gonna say! [Puppet voice] “We would like to release Michael Cohen early!” and do that equivalent of a proceeding? They tried to file something that the government’s supposed to do?
Andrew: More hilariously than that, yes.
Thomas: [Laughs]
Andrew: Okay, I’m 100% serious about this. The first thing I did was I looked up Michael Cohen’s present attorney, Rodger Bennett-Adler, counselor at law, and I will tell you, this person appears in New York Super Lawyers. This is not, spoiler for part two of this segment, Larry Klayman! This is not a crazy person.
Thomas: New York super lawyers? What is that and how do you get into that?
Andrew: I have previously been listed in Maryland Super Lawyers. It is what it sounds like, it’s – you get together and-
Thomas: I don’t know what it sounds like, I’ll be honest. It sounds, is it a super hero?
Andrew: Yeah, it’s a directory of the best lawyers in the State as voted on by their-
Thomas: You have the Taint Team and you have the van?
Andrew: [Laughs] Kinda like that except it’s a dry book and it’s voted on by other lawyers. But you know, it’s close.
Thomas: It’s honor roll.
Andrew: Yeah, no George Pappard, no kickass theme music, but it’s … Larry Klayman is not in Super Lawyers.
Thomas: [Laughs]
Andrew: Roger Bennett-Adler is. He filed a motion on January 10th, 2020, and as far as I can tell because the argument is not really clearly made, the argument seems to be – until his reply brief, by the way, that Rule 35(b) does not define “the government,” and so therefore I’m going to attach among other things a letter from now-deceased ex-Maryland congressman and beloved institution Elijah Cummings praising Michael Cohen for coming forward.
Thomas: [Laughs]
Andrew: Because he was a sitting member of Congress-
Thomas: That’s government, yeah!
Andrew: [Laughing] – is part of the government! And the government should be treated as all of that. [Laughs] This is, to use, I think I’ve used this one already but there’s a great Red Dwarf bit where Rimmer looks at Crighton – you don’t know who these people are, it doesn’t matter, and says “prepare the lifeboats” and Crighton says “excellent suggestion Mr. Rimmer, sir, with only two problems. A, we don’t have any lifeboats, and B, we don’t have any lifeboats! I realize technically that’s the same thing but it was so important I thought I’d say it twice!”
That’s the problem here, there is – and I’m just gonna read you paragraphs 47 and 48 of the reply brief, in which they say in paragraph 47, “additionally, none of the cases cited on page 12 involve cooperation with the coequal branch of the government denominated ‘the Congress.’ The government is not, as a matter of civics, limited. We submit to the local U.S. attorney’s office. If it was as myopic as this, the rule would, we submit, have used the phrase ‘United States Attorney.’ It doesn’t.”
That’s the end of paragraph 47. Paragraph 48 begins: “The government cites United States v.” [Laughs] Alright, and if you’ve caught the joke, that’s the joke. You refer to the U.S. attorney’s office as “the government” in your brief because that’s the way you refer to the U.S. attorneys’ office when they are a party. That is very plainly what Rule 35 means, and the idea that you would construe it as meaning any portion-
Thomas: If you can find someone who said a nice thing about your client?
Andrew: It really is.
Thomas: That worked for the government.
Andrew: Yeah.
Thomas: I thought it was gonna be like the guy, he worked in some random agency or something. “Look at his name tag, it has government on it!”
Andrew: [Laughs] Yup. Bob B. Government, yeah. It’s that level of sovereign citizen kind of madness.
Thomas: Wow.
Andrew: You might be asking, why am I talking about a January motion now? The answer, of course, is that on March 17th the same counsel, having submitted six or seven follow-up letter motions to the court, writes “I write to you as a follow-up to my March 9th letter” which I’m not gonna read because again, it’s nonsense, “and Chief Judge McMann’s directive addressed to court protocols to be followed in the Southern District as a consequence of the coronavirus epidemic. Turning to the merits” and then I’m skipping a paragraph.
“Turning through the merits of my pending Rule 35 application, I urge the court to consider my client’s exposure to the coronavirus, and grant the Rule 35 motion to the extent of modifying the previously imposed 36 month sentence to be served on home confinement.”
So spurred by that letter, Judge Polly – again, well respected liberal judge in the Southern District of New York, writes [Laughs] and judges have a fair amount – they don’t have a fair amount of time on their hands, they’re still super busy, but at least they don’t have new cases so they’re catching up on their backlogs and in some cases polishing their comedy chops. With some understatement Judge Polly writes:
“Michael Cohen purports to move under Rule 35(b) of the Federal Rules of Criminal Procedure to reduce or modify his sentence. The fatal flaw in Cohen’s motion is that only prosecutor can file a Rule 35(b) motion.”
Thomas: [Laughs]
Andrew: [Laughs] and then some admonishment at the end. “Apparently searching for a new argument to justify a modification of his sentence, Cohen now raises the specter of COVID-19. That Cohen would seek to single himself out for release to home confinement appears to be just another effort to inject himself into the news cycle. Ten months into his prison term, it’s time that Cohen accept the consequences of his criminal convictions for serious crimes that had far reaching institutional harms. For these reasons, Cohen’s application to reduce or modify his sentence is denied.”
Yeah, that’s exactly right.
Thomas: [Laughs]
Andrew: Yeah, apparently “government” means “anybody associated with government.” I will tell you, I searched in vain for a citation in any of Cohen’s pleadings that was supposed to support this argument? The only thing I could come up with was on page 11 of their reply brief – and by the way if you’re wondering is it common practice to put your argument for the first time in your reply brief? No! No, that’s not. Reply is meant to reply to the stuff they didn’t respond to.
But page 11 of their reply brief they cite a case called U.S. v. Kaye, K-A-Y-E, that I will link in the show notes for the proposition that you don’t have to be the prosecutor to be the government, and I will tell you, U.S. v. Kaye is not a Rule 35 case and does not say that!
Thomas: Wow.
Andrew: It’s just bonkers.
Thomas: Would you call this lawyering maybe … not quite super?
Andrew: [Laughing] I would call this less than super.
Thomas: Not super.
Andrew: That is correct.
Thomas: This is a Bart Simpson level stunt.
Andrew: Yeah!
Thomas: I mean, this is trying to change your report card from F’s to A’s, you know? Seriously, uh, so the government needs to do this? Oh I know somebody associated with the government who is now dead but once said a nice thing about me… so therefore… I mean, this is nuts.
Andrew: The COVID motion, which again, when you read it it’s a letter.
Thomas: Well the COVID one is less … okay, well you can tell me as a lawyer that it’s even more stupid, but that at least strikes me as a solid try.
Andrew: [Laughs]
Thomas: Oh, COVID-19, maybe we need to free anyone who’s in custody who’s kinda nonviolent kind of thing I guess? That strikes me as maybe a good try, but the thing where you pretend to be the government to reduce your sentence is so good!
Andrew: Except it’s the basis for granting the pending Rule 35 motion. It’s dependent upon the first thing. The letter is four paragraphs long, contains no citations, and contains – and now I’m going to read from the last paragraph of the letter.
“I attach some thoughtful commentary from the blog ‘Sentencing Law and Policy.’” [Laughs]
Thomas: [Laughs]
Andrew: I’m not kidding, it then just has a 7-page blog entry about COVID-19 that ends with – I promise you I am uploading this, it will be linked in the show notes. Page 8 is just a full-page email-
Thomas: [Laughs]
Andrew: From the Iditarod dogsled race!
Thomas: What?
Andrew: That says “Hello Idita-riders-
Thomas: [Laughs]
Andrew: -you soon will be headed down the trail for an 11-mile ride at the start of the 2020 Iditarod on Saturday, March 7th.”
Thomas: [Laughs]
Andrew: I’m going to link this, it’s amazing and delightful and the only thing I can think is that Cohen’s lawyer is a big dogsled fan, so he accidentally attached an email about the Iditarod to his court pleading! You will see, it is date and timestamped, it is ECF # 69 in case no. 1:18-cr-00602-whp. This went uncommented on by Judge Polly, but-
Thomas: [Laughs]
Andrew: But I’ve never seen it before, so there you go!
Thomas: He’s like I’m not an Idita-rider so this doesn’t apply to me!
Andrew: [Laughs] A little bit on the Iditarod, which by the way, its slogan is “the last great race,” which is a little bit ominous.
Thomas: Yeah.
Andrew: But there you go. Dogsledding, downtown Anchorage. What that has to do with Michael Cohen? No clue. Your guess is as good as mine.
Thomas: First off, if a blog post can be cited in a motion that means we can certainly be cited as a podcast.
Andrew: 100%! [Laughs]
Thomas: And if you’d like to cite us in your next motion, we also have transcripts available from the great Heather Loveridge, so-
Andrew: That’s right!
Thomas: That’ll make it a little easier.
Andrew: There you go. Heather Loveridge, who I believe won Code Names on Friday. [Laughs]
Thomas: Yeah, who knows? All I know is Heath lost ‘cuz he cheated.
Andrew: Well, he was disqualified, so…
Thomas: This is from the future, or from the past so if we’re guessing I think Heath cheated so he’s disqualified, and Eli was the most frustrated. They already know this, why are we telling them?
Andrew: Yeah, there’s no reason to tell them that. Can we move on to oh, oh that’s crazy, but top that?! [Laughs]
Thomas: Well I was gonna say, this sounds even dumber than some Larry Klayman stuff, so I’m amazed that this came from a Super Lawyer. Can Larry Klayman top this? [Laughs]
Andrew: Yeah, challenge accepted!
Thomas: [Laughs]
Andrew: Yes. Larry Klayman, individually and with his group Freedom Watch, which is not Judicial Watch [Laughing] as we learned from our Law’d Awful Movies of the Larry Klayman on Roger Stone deposition, which remains one of the funniest things that I’ve ever done. At least from my perspective.
Larry Klayman, a natural person, Freedom Watch Inc., and Buzz Photos (put a pin in that) sued – and I am not making this up – the People’s Republic of China, the People’s Liberation Army, the official military of China, the Wuhan Institute of Virology and agency of the government of China, and Shi Zhengli, Director of the Wuhan Institute of Virology, and Major General Chen Wei of the China People’s Liberation Army in United States District Court for the Northern Division of Texas – which [Laughs] [Sarcastically] may or may not have jurisdiction over the People’s Republic of China – for … you wanna take a guess for how much money?
Thomas: Oh, I probably saw this. Wasn’t it like trillions?
Andrew: Twenty-trillion dollars! [Laughs]
Thomas: That’s a lot of money.
Andrew: I think the only reason he’s suing for $20 trillion is that he couldn’t count any higher. That was literally, they were like “what’s the highest number you can think of?” and he’s like $20 trillion. And they’re like “what about $20 trillion and one dollars?” and he’s like “no no no, $20 trillion.” I firmly believe that.
As always with any good crazy lawsuit that requires some clownhorning, we’re gonna read this in reverse. So we scroll all the way to the bottom. Fortunately, this was not filed by a super lawyer, this was filed by Larry Klayman [Laughs] who, uh, I guess is really bucking to see how many jurisdictions he can be sanctioned and potentially disbarred in.
We scroll back, there are six causes of action and I’m gonna briefly tell you each of the six, but as a little bit of an overview I will tell you if you ever see a citation to 18 U.S.C. something, anything in 18 U.S.C. That’s the criminal code.
Thomas: We hear that all the time.
Andrew: Yeah! We hear it all the time, oh, because that’s the U.S. criminal code.
Thomas: Right.
Andrew: Now look, occasionally as part of the criminal code you will have very, very rarely a right of private enforcement or to act as private Attorney General-
Thomas: [Sighs]
Andrew: That’s not the case here! [Laughs] So count one alleges violations 18 U.S.C. § 2332, that’s a criminal terrorism statute, not a private civil action. Count two alleges a violation of 18 U.S.C. § 2339(a). That’s also a terrorism statute, not a private civil action. Count three is conspiracy to do count one. Then we have three counts that are actually at least potentially cognizable: negligence, wrongful death, and assault and battery.
But now we have to figure out, okay, so three of these counts are just not even cognizable.
Thomas: So these two things have in common someone pretending to be the government who’s not the government?
Andrew: Yes! Indeed they do.
Thomas: Okay, it’s a theme for today’s show!
Andrew: Yeah! So now you might say “how does negligence, wrongful death, and assault and battery add up to $20 trillion?” [Laughs]
Thomas: It doesn’t?
Andrew: Well, and to figure that we scroll all the way back to figure out who the parties to this lawsuit are. Okay, we know who Freedom Watch is, we know who Larry Klayman is. What the hell is Buzz Photos? This gets weird.
This is paragraph 13 on page 4, and I’m gonna crowdsource this out to our listeners. I wanna point out that Freedom Watch is listed in the caption as Freedom Watch, Inc. and is described as a 501(c)(3) nonprofit corporation. So Larry Klayman, for all of his insanity and [Laughs] hooo, boy, knows the difference between a person, a corporation, a limited liability company, he understands the basics of how you plead.
Buzz Photos is described as this in paragraph 13: “Plaintiff Buzz Photos, which is located in and does and did substantial business in this judicial district, specializes in high school sports photography, serving students, parents, and schools in memorializing school events and promoting family and community involvement in school events.”
Thomas: Oooh.
Andrew: Then it says “the interruptions due to COVID has shut down and closed Buzz Photos business and it stands on the verge of bankruptcy.” There’s this allegation which I find amazing: “The company lost about $50,000 over the last weekend alone. The company has been forced by the COVID-19 epidemic to lay off employees.” Well $50,000 in a weekend projects out-
Thomas: Good weekend.
Andrew: $2 and a half million bucks over the course of the year. But one of the things that our eagle-eared listeners may have noticed is that Buzz Photos is not described as anything in this paragraph. They’re not described as a profit corporation, as a non-stock corporation, as a limited liability company. They’re just described as Buzz Photos.
I go to their website, and I find, similarly, that there is no descriptions. Buzzphotos.com, head on out there, and I find that the “about us” page just says “hey, if you wanna contact us fill out this form.” It doesn’t say who they are, doesn’t say what their corporate form is.
I went to the Texas Department of State and did a corporate lookup. Buzz Photos is not a registered corporation or limited liability company in the State of Texas.
Thomas: Interesting.
Andrew: I don’t know what it is. I dunno if it’s like-
Thomas: Is it a BS sole proprietorship that somebody set up for 5 seconds?
Andrew: It very well could be.
Thomas: Or is it nothing?
Andrew: We don’t know.
Thomas: [Laughs]
Andrew: It could be nothing. So Buzz Photos, Larry Klayman, and Freedom Watch now form the named plaintiffs as Rule 23 representatives for a class action brought on behalf of one, anybody who has coronavirus, which none of them have. [Laughs] Or two, anybody that’s suffered nay economic loss as a result of coronavirus, which they are alleged to have suffered an economic loss and which – preposterously silly that you could join them all, that the legal calculations-
Thomas: Yeah.
Andrew: Our losses for Opening Arguments Media, LLC are different than my losses for the Law Offices of P. Andrew Torrez are different from the aforementioned hair salon’s losses. Look, a real photography outfit probably has significant losses due to coronavirus. Schools are shut down and nobody is gonna hire a photographer to come cough all over high school kids. So no chance that his could be a class action lawsuit.
You might be asking, what would the grounds of the lawsuit be? The answer to that lies after a whole bunch of inuendo in [Laughing] one paragraph. Paragraph 62 on page 14, which states (quote) “many reputable people and organizations and experts” (interesting sentence construction there) “have thus come to the conclusion that this crisis began when a Chinese biological weapons facility accidentally released COVID-19 into the atmosphere.”
Thomas: Uh… kay. There it is.
Andrew: So there it is. The citation for this is [Laughing]-
Thomas: Another blog? Do we get some more Iditarod letters?
Andrew: An opinion column in The Hill states, and then I’m gonna do the quote in a minute, but yes, it is an op-ed by Grady Means called “The Coronavirus: Blueprint for Bioterrorism,” link in the show notes and also on paragraph 62, page 14. I will tell you, Grady Means is a rightwing pro-Trump lunatic who wrote a wink-wink “I’m not saying that COVID-19 was developed as a bioweapon, but if so this is what bioterrorism could look like” op-ed. I have no idea why it was picked up by The Hill. You should top reading The Hill until they stop giving space to lunatics like Grady Means.
But I will tell you, even if you were to credit an op-ed by a crazy person being cited by another crazy person, it doesn’t say what he says it says!
Thomas: [Laughs] He can’t even credit his nutjob blogs correctly?
Andrew: No! The blog says “well, you know, the conventional and most likely view of the COVID-19 outbreak is that it originated in Wuhan, China, near the most sophisticated Chinese bioweapons lab, and then proceeded into the world from there, leaving people to guess whether it originated in the lab and leaked, came from wild bats or snakes, or came from the exotic meat market next door.”
Even in the conspiracy theory, this guy – not that a court should credit the rantings of a pro-Trump conspiracy theorist, but he doesn’t even say “oh this was definitely a bioweapon.” [Laughing] Let alone the Trumpian “many people are saying” No no no no!
Thomas: Yeah.
Andrew: Q-Anon is saying. I have no idea if Q-Anon specifically, but that level of Commit Ping Pong is saying. That is it. The rest of it is just like “oooh, this spread faster than we thought.” It’s just bonkers. It’s amazing.
Thomas: Look man, how is this [Clownhorn] still a lawyer!
Andrew: Yeah, I don’t know. I really-
Thomas: All he does is waste everybody’s time with these nonsense … okay, out of self interest he does provide us good material for the show.
Andrew: [Laughs]
Thomas: And for Law’d Awful Movies, so for that reason I guess it’s good for us. But for the rest of the world [Laughs] for non-listeners of the show, he just goes around wasting all our time with the dumbest garbage lawsuits anybody’s ever heard of! Shouldn’t the Bar mean a little more? Shouldn’t being a member of the Bar in good standing be a little harder to do, or something?
Andrew: I think it should, I wish it did, and I am hoping that some courts finally decide to put an end to this nonsense. This really does – it’s an embarrassment on the profession at a time in which our courts are so overloaded.
I will tell you this, I just had a case from a very respected judge, somebody, like I said, I have the highest amount of respect for, and there was a ministerial motion pending since April of last year that just got granted a week and a half ago in this case. That’s how overloaded our courts are.
Yeah, Larry Klayman should not be in here saying that the Chinese and the lizard people conspired to infect nonexistent photographers in Texas with coronavirus, that’s horrible and stupid and wrong. So there you go! But we can laugh at it, and by god we will!
Thomas: Soo how much of this $20 trillion do you think he’s gonna get? Maybe one or two trillion?
Andrew: [Laughs] Yeah.
Thomas: They’ll settle?
Andrew: This is one where I feel pretty comfortable in saying that the [Laughs] Chinese Army is not going to come to the table with a settlement offer in this case.
Thomas: Yeah, by the way with a civil action that’s U.S. criminal code somehow.
Andrew: Yup. It’s gonna be great. Look for sanctions pending against Larry Klayman in Texas because this is nonsense.
Thomas: He shouldn’t be a lawyer!
Andrew: He should not be a lawyer, I agree with that.
Thomas: It’s [Sighs] Okay.
Andrew: [Laughs]
Thomas: Honestly, it’s like if a doctor was just killing his patients all the time and they’re like “well, we can’t really kick him out of the doctor club just because he’s terrible at it.” Come on!
Andrew: Yeah.
Thomas: Have some dignity, lawyers!
Andrew: I’m with you! Let’s have some dignity.
Thomas: Alright. Let’s get to our main segment for the day, I am very curious to hear your pitch – ha ha! Pun. On [Laughs] the return of baseball. I have no idea what music Brian is playing for this, it’s not yodeling. Baseball law music, here we go!
Baseball Law: The Return of Baseball?
[Segment Intro]
Andrew: Alright, so let me start off with actual facts about actual baseball being played right now. There are two major professional sports leagues that are playing games as we speak.
Thomas: Hmm.
Andrew: They are, in fact, outside of the major leagues these are the two highest level of baseball play around the world. The first is in Japan, NPB, the Nippon Professional Baseball league. They are playing preseason games in empty stadiums right now. The teams are there but nobody is in the stands.
Thomas: Is it because they have testing? They’re able to just have people-
Andrew: Yup, yup.
Thomas: Wow.
Andrew: They have set April 24th [Laughs] as their proposed opening day, which again will be an opening day in empty stadiums, but broadcast on TV.
Thomas: Yeah.
Andrew: Which, by the way is a terrific way to watch baseball.
Thomas: I would do anything to have hockey with empty stadiums broadcast on TV right now. I wish we could do that.
Andrew: Also, the KBO, the Korean Baseball Organization in South Korea, which is the third best baseball league right after the major leagues and after Japan, they are playing intra-squad spring training games, so that is one team against itself. They have not set a return date, but the teams are streaming those scrimmages on YouTube and there are ex major – fringe Major League ball players – but ex-Major League ball players out there playing intra-squad games.
So if you are jonesing for baseball you can actually watch KBO intra-squad spring training scrimmages right now on YouTube… No comment as to whether I’ve done that. [Laughs]
Thomas: [Laughs]
Andrew: But this gives me a tremendous amount of optimism that we will be able to solve the logistical issues to get baseball back in the United States. If the model is the Japan model, these numbers are not public. The best digging I can do is that on average probably something like 70% of baseball’s revenue comes from television.
Thomas: Right.
Andrew: So if you could televise games that would be a major benefit to both the teams and the players, even if there were no live games for the foreseeable future. So I look at the Japanese model and I think alright, maybe we can figure out a technical way forward.
Can we figure out a legal way forward?
Thomas: Hmm.
Andrew: And that’s what I wanted to chat about.
Thomas: Okay.
Andrew: Because your team provides the single best articulation of what those legal issues are. Just as a recap for our maybe less than baseball fan fans who are listening out here, but stay tuned this is good stuff. The Dodgers won 105 games last year but failed to make it to the World Series. As a result, they went out and got better in the offseason. They traded a bunch of prospects for American League MVP candidate Mookie Betts who is a free agent under the existing baseball rules at the end of the season.
Thomas: Oh geez, yeah.
Andrew: Yeah, it’s a rental rule. The guys they traded, they traded their former top prospect in outfielder Alex Verdugo, they traded a highly rated shortstop prospect in Jeter Downs, they took on – this is probably a push, actually. They took on half of David Price’s salary, which is probably fair market value. That’s probably a wash. And then there was a lesser prospect that got included.
They made a big move and took on a lot of salary for a player who’s gone at the end of the year. And this kind of turns the dynamics of baseball upside down. Usually the Dodgers, the Yankees, the Red Socks, the Philly’s, these are huge money organizations. As of right now they’re actually the ones that are in the worst shape.
Thomas: Hmm.
Andrew: Because they have the highest payroll obligations-
Thomas: Yeah.
Andrew: Right? They tend to have the largest staff, and they’re not making any money right now. What do you do when you have a team like the Dodgers that goes all in, traded for Mookie Betts, taken on all this salary, now they’re making zero dollars and they have a ton of obligations? Then on the player’s side you have, how do they get paid? [Laughs]
So MLB has come up with a plan and this is being kicked back and forth between the ownership group and the MLB Players Association, that’s the player’s union. The first component of the plan would set aside $150 million right now and give it to the player’s union. The player’s union could then divide that up into four classes of players that would get paid. So the first are first-time players on the 40 man roster, those are minor leaguers-
Thomas: I was gonna say, they’re the ones who really need money right now.
Andrew: They really – that’s what this is for.
Thomas: Okay.
Andrew: So it would go to Minor Leaguers, players with low salary split contracts. What that is is when you sign a Major League veteran to a Minor League deal, you often see that late in their careers, they will sometimes get a split contract which is exactly what it sounds like. It’s like okay, if you stay a triple A you’re gonna make triple A salary which might be, say, $7,000 a month, but if we call you up to the Majors that gets bumped up to a million bucks a year.
Thomas: Right.
Andrew: So low salary split contracts, and they’re not in the Majors right now. Players with higher salary split deals, and then players with guaranteed Major League deals. It would be up to the player’s union to figure out how to allocate that to those who most need it. Crucially that’s just a “we’re gonna give you $150 million from MLB as a sign of good faith right here on the table.” If we can’t come to an agreement on the season you keep the $150 million.
Thomas: Hmm.
Andrew: It’s kind of a bridge. But now you would then say okay, what about playing games? Let’s say we do the we can play in an empty stadium kinda thing, how could we get games up and running? Here you have a very interesting, one of the only times I’ve ever seen in baseball where the players and the teams are aligned in their goal of playing games. The reason is that players get service time as a function of the games that they play.
Thomas: Ooh.
Andrew: So if they don’t play any games they don’t get any service time. Mookie Betts doesn’t get to go free agent at the end of the year, because the way in which you determine eligibility for things like free agency and arbitration is by games played.
Thomas: Okay. Yeah, I was gonna ask if that actually, in some ways it’s worse for hockey and sports that had to suspend because say there’s a big contract that you get this person for the season, rather, and then there’s no playoffs or something you’re totally screwed. Whereas with baseball where the season never started I could see hypothetically if they don’t play for a year you’d just say it’s not as though Mookie’s gonna be a free agent because of a year.
But I was gonna ask you, are these contracts usually written as a calendar thing? Oh, okay, on this date which is after the season you’re a free agent or is it like after a season of playing with the Dodgers. How are these things usually structured?
Andrew: The way in which they are structured under the current collective bargaining agreement has to do with actual accrued service time on the Major League roster playing Major League games. Think about the dynamic in baseball because players get sent up and down all the time.
Thomas: Yeah.
Andrew: So if you had a Minor Leaguer who comes up for half the season – let’s do it in an extreme sense. Supposed they come up and they play four games and then they go down, you wouldn’t want to count that as a full year for purposes of determining when they get to be eligible for arbitration, it counts as four games. You have to accumulate three years’ worth of games before you’re eligible for arbitration and six years’ worth of games – and I’m oversimplifying, but essentially this is correct, before you qualify as a free agent.
Thomas: Well I was gonna say, though, I mean whenever you sign a big player for a season, say, and they get hurt right away and don’t play they still- contract’s still up after the-
Andrew: Because you’re thinking – we’re talking about two different scenarios.
Thomas: Okay.
Andrew: I’m talking about players who have yet to hit free agency.
Thomas: Okay.
Andrew: Players who have yet to hit free agency are governed by the CBA rules.
Thomas: These entry contracts or whatever?
Andrew: Well, Mookie Betts is five years out. He’s been in the Majors for five years. These are the most valuable players. I don’t mean in terms of capital M, capital V, necessarily MVP, but I mean these are people who have yet to hit free agency so they’ve yet to be paid their fair market value. That’s part of why you get Mookie Betts.
They also tend to be younger and your baseball skills deteriorate generally past age 26 to 28. Your best young players tend to be in this category of sort of pre-free agent. If you’ve signed a free agent deal, those free agent deals are time.
Thomas: Okay.
Andrew: So, yeah. Ultimately that is something that I think both ends of this are going to be resolved by agreement how we count. But it is really, really important for the player’s union that you get as many games as possible that count as much as possible as service time in order to push players.
Because, as those who listened to my baseball lecture will know, and this is coming in the main feed at some point. For the first three years of your career the team gets to just renew your salary. They can pay you whatever they want so long as it’s above the Major League minimum. There’s not arbitration, there’s no free agency, there’s no nothing. You just take what they give you and you like it.
So the player’s union wants to accelerate players as quickly as possible towards first arbitration and then free agency. To that end, for the first time ever and the teams want to try and play as many games as possible, right? So players – the reports that I’ve seen – are willing to play as many as two doubleheaders a week in terms of being able to get games going.
Thomas: Right.
Andrew: If you played two doubleheaders a week you could start the season in June and still play a full season. I don’t think this will happen-
Thomas: It’s baseball so you can play seven or eight games a day.
Andrew: [Laughs]
Thomas: I mean eventually they would get a little jogged out. Like oof! Except for pitchers, obviously. They’re the only people who have to work. Maybe catchers…
Andrew: [Laughs] Well so leaving aside the joke, we have several professional baseball players that listen to the show.
Thomas: What the hell?
Andrew: We do!
Thomas: Wow. Hi!
Andrew: Not current Major Leaguers, but-
Thomas: Oh.
Andrew: But those who have made a living playing baseball-
Thomas: Jogging.
Andrew: Which a damn site better than you or I, so-
Thomas: [Laughs]
Andrew: You actually hit on the issue to think about in terms of how could we get games ready and what would those games look like? The biggest sticking point is going to be pitching. You may recall, pitchers report early to spring training.
Spring training has bee interrupted. All of the pitching regimen of every pitcher in Major League Baseball has been disrupted and they’re gonna have to build back up again. Even if you had an abbreviated, quick three to four week spring training that’s not gonna be enough time to get pitchers up to where they typically are by the start of the Major League season, by the end of spring training.
What I would anticipate – Major League Baseball rosters already this year were scheduled to expand from 25 to 26, they were gonna add another player into the Major League roster. I would expect that if there is Major League Baseball that those rosters will expand again. That they will maybe add three or four more spots, maybe go up to 30.
All of those spots will be used on pitchers, because your starting pitchers will be throwing three and four innings for the first couple of times through the rotation. Particularly if you’re playing double headers they’re gonna have to come up with rules even beyond that.
Last year there was a major homerun explosion, this year I would expect the pitching to be way diluted in any kind of baseball that we see.
Thomas: Hmm.
Andrew: Pitchers are gonna go short into games, and if you love – I dunno if you remember the old (you almost certainly don’t) the old Oakland Bash Brothers of the 1990s and the chicks dig the long ball commercials.
Thomas: I do remember that! Oh man. Chicks dig the long ball!
Andrew: [Laughs] Well if chicks dig the long ball they are gonna love 9-7 games this year.
Thomas: That was already kinda happening, wasn’t it? I mean the scoring was insane last year.
Andrew: It was and there’s not question that that’s on MLB’s radar. I’ve actually done published research on this, but the sweet spot for baseball is 4-3. That really is. If the average game is 4-3, about three and a half runs per game then all of the strategies that you think of, bunting and stealing bases and everything else, become viable. Once you get above the high 4’s in average runs scored per game, when the average game is now 5-4 or 6-5 then the optimal strategy instantly converges on be as patient as you can and either walk or hit a home run.
Thomas: Yeah.
Andrew: You know, chicks dig the long ball but Major League Baseball has been trying for a decade to shorten games and that sort of thing and when you have a lineup full of hitters working the count going deep, trained by sabermetrics to walk and then find the one pitch they can drive over the fence, that tends to be less exciting for the general universe of fans.
Thomas: I love how in the face of this, baseball has looked and said “hey, should we maybe, maybe we could just reduce our 160 million game season, this would be a good opportunity to only play 100 million games.” Then they’re like “no, nope! Not that. Keep the 160 zillion game season, we’ll just play like four games a day to catch up.”
Andrew: [Laughs]
Thomas: Just funny.
Andrew: Again, because the dynamics favor all sides at the negotiating table want to play as many games as possible.
Thomas: Yeah.
Andrew: That game 137 between Minnesota and Kansas City still generates a million bucks in revenue. Nobody wants voluntarily to turn over that million bucks. It will be very interesting, but that is the-
Thomas: But it’s unique to baseball.
Andrew: Yeah.
Thomas: This doesn’t really apply to other sports because there’s some exertion involved in other sports.
Andrew: [Laughs]
Thomas: In baseball you can just shorten the season and it’s fine and you can kinda still squeeze it in. I was hoping this would apply somehow to hockey, or football or sports where people break a sweat.
Andrew: [Laughs]
Thomas: Apparently not.
Andrew: No, I think this is just baseball. Again, when you’re thinking about the dates, just two teams, that alone is gonna be 60 people, plus their training and coaching staff. You’re talking about getting 100 people even playing in an empty stadium. We’re not there yet even for spring training or intra-squad or playing in front of empty stadiums. When we could be, whatever that date is that we figure out we can follow the Japan and Korea model, then we’re probably a month out from a whole bunch of 11-10 games.
Again, the key negotiating legal issue to be resolved there is going to be how to treat surface time, because if you get 2/3 of a season and you treat it as a full season, it screws the Dodgers who made a huge move to get a guy thinking they were getting him for the full season.
Thomas: Yeah.
Andrew: Now, you know, again-
Thomas: Well what matters is if they get to the World Series.
Andrew: If they win the World Series.
Thomas: If they play 10 games and still get to the World Series, then who cares?
Andrew: [Laughs] That’s right. Again, that’s part of why they play.
Thomas: Unless you’re thinking from a purely financial, you need to have more games, maybe you generate more revenue because he draws more fans, maybe from that perspective. Like an accountant who works for the Dodgers might think that way, but in terms of Dodgers fans they want some playoffs.
Andrew: Yeah. I think what you’re going to see is some kind of sliding scale on free agents and players who are in that higher salary category that maybe trades off giving bets, let’s say a 1.5 to 1 credit for every game played as surface time so he still becomes a free agent at the end of the season, but maybe pays him 1 for 1 on his salary for every game played. Trades off current dollars for future dollars. That strikes me as a reasonable compromise.
But my point is unlike a great many times when you see sports work stoppages, the parties are really close in alignment, everybody wants to be playing games as quickly as possible and as many games as possible, provided you can do so safely. I am optimistic that we’re gonna have baseball, man!
Thomas: Alright! Well good news episode!
Andrew: That’s another happy face!
Thomas: Here’s some more potential good news, Andrew. Did you leave time for this wildcard segment?
Andrew: I think I did! What do you think?
Thomas: Yes, I think yes. Let’s do it. More good news everybody, wild card segment, wild card b-words, here we go! [Laughs]
Bill Barr Doesn’t get Emergency Control over Judicial Branch
[Segment Intro]
Thomas: Now this was something I saw you post a bit about. This was kind of a misleading headline. I dunno, I may quibble with this, we’ll see. So what happened?
Andrew: I need to say that this request is still confidential to the Congress, so I usually hate doing this without the underlying documents, I always disclose when we don’t have it. I’ve gotta go based on what media reports have said.
Rolling Stone went with a headline that was basically one click down from Attorney General Bill Barr suspends constitution, makes Donald Trump king. That is not true. What the Department of Justice has done is they have gone to Congress to ask for Congress, which gets to pass the laws, to change the laws reflecting various court rules. Because courts get to make their own rules, subject to congressional authorization. Congress can override that because Congress gets to pass the laws that govern the judiciary. This is where Congress could double the size of the judiciary if they want, which would be a tremendous idea in 2021.
Here are the things that the Department of Justice has asked Congress to do. Again, I wanna point out the cap to all of this is Congress said no! [Laughs] The Democratic House of Representatives said no, we’re not gonna do this. But here’s what DOJ asked Congress to do.
It said Congress should grant the Attorney General power to ask the chief judge in any district court to pause, to suspend court proceedings (quote) “whenever the district court is fully or partially closed by virtue of any natural disaster or other emergency situation.” That such closures would toll the statue of limitations. In other words, if you’ve got a crime for which you need to bring charges against somebody in three years, that that statute of limitations wouldn’t continue to run while courts are closed and that would last during the national emergency and (quote) “up to one year following the end of the national emergency.”
They also asked to be able to arraign defendants. That is to be able to bring charges via video teleconferencing, which is something that you cannot currently do.
Thomas: Hmm.
Andrew: And they would be able to do so without the consent of the criminal defendant. Now let me take a quick step and say I don’t – giving Bill Barr discretion to do anything right now is not high on my list!
Thomas: Yeah, yeah.
Andrew: And I don’t know that even in the abstract that I would want to give the DOJ these powers, but I can make an argument for each and every one of them. For example, there’s a 6th Amendment right – we’ve talked about this before – you have a 6th Amendment right to a speedy trial.
Clarifying in the rules that if no charges were brought against you because the courts were closed, I can see a very good argument for saying you shouldn’t be able to bring a habeas petition that says you have to release me now because you’ve held me for too long and you haven’t brought any charges. I can see the DOJ being like “come on, we can’t bring charges, we can’t try you. We’ve charged you but we can’t try you because the courts aren’t in session, we can’t convene juries.” You also have a right to a trial by jury. This is not a case where it’s even practicable.
Now, the counter-side to that argument is well maybe we shouldn’t have pretrial detention.
Thomas: Yeah. I was gonna say, it’s interesting which way you look at it. Do you look at it as thought that right is so absolute that if an emergency knocks out our ability to have a speedy trial or whatever it is, then they’re just free to go? Because that right is so absolute that you can’t just violate it because. Or is it more reasonable to say well, you know, in an emergency like this we do need to fudge this a little bit and you’re gonna have more delay than maybe you should, but ultimately it’s still worthwhile that we try these people and imprison them or whatever. I dunno, depends on where you come out on that I guess.
Andrew: Yeah, and again we’ve [Laughs] We here on the left, again the proverbial card carrying member of the ACLU. We tend to focus on procedural rights and the rights of criminal defendants. I am strongly opposed to pretrial detention.
I will point out our feed gets overwhelmed when Brock Turner gets 6 months in prison. It is not hard to flip the script and imagine a scenario in which we’re outraged by, “oh, sorry, we couldn’t bring a criminal indictment here against this person because the statute of limitations was past.” “Oh, sorry, this person committed a violent crime but we have to pretend as though they’re safe to release back into the community because the courts are shut down because of COVID-19.”
All I wanna say is, number one, that I think reasonable people could have crafted these asks. That reasonable people could debate over the scope of those asks, and crucially that Congress [Laughing] denied the request!
Thomas: That’s interesting.
Andrew: When people share – to me there are sort of two takeaways for it. Number one is this is an illustration of where checks and balances are still there! Where the system is still working. And number two, there’s no doubt the initial Rolling Stone headlines – other outlets covered it but Rolling Stone went alarmist as “DOJ seeks to suspend habeas corpus.” [Laughs]
There’s a lot of outrage to go around, there is a lot that I want to direct. To me this is not. We still have kids in cages, we still have ICE agents being declared essential personnel and rounding folks up during a pandemic. I wanna direct our focus and energy the right way. So if you’ve seen this and you’re not following our social media, no, Bill Barr was not able to use the state of emergency to suspend habeas corpus, this was a request about how to standardize prosecutions that Congress turned down, and Congress turned that down because they don’t trust Bill Barr.
Thomas: Wow.
Andrew: I feel good about that. Look, these are the kinds of requests that you could imagine a Democratic Attorney General making. You can tweak it around the edges. I could easily imagine the nation’s top cop under a President Biden saying “hey, we wanna do these things” and a Democratic Congress absolutely would have said yes if they trusted the Attorney General.
Thomas: Yeah. It doesn’t sound – it’s one thing to say oh they wanna increase powers because of the emergency, that sounds scary, but if it’s like well they wanna be able to do video sentencing-
Andrew: Yup.
Thomas: That doesn’t really sound that scary to me.
Andrew: And again, I’m not saying there aren’t arguments against this that aren’t “I don’t trust Bill Barr.” The idea that you can arraign someone without their consent over video is – there are troubling civil liberties concerns regarding that. One of the points behind the confrontation clause is we value the rights of a jury of your peers. I’m making an analogy, but the confrontation clause says you get the right to cross-examine your witnesses live in front of a live jury, because we value the notion of a jury of your peers looking at the movements and judging, “hey do I think this person is telling the truth or not?”
That’s at the core of the criminal justice system, so certainly there are things – right now you can’t do that, you can’t convene a jury! [Laughs] And you can’t have live testimony because we’re not gonna stick all those people in a room and let them cough on each other.
There are arguments to the contrary, there are analogous arguments to the contrary, there are real concerns out there. But the headlines were overblown and this is an example of where the system works.
Thomas: Well the only quibble I was gonna have with you was the headline did say “the DOJ seeks” so it’s one of those technically correct, I get that you’re saying it was kinda like people got the wrong impression, but it is still true that they sought to do this.
Andrew: It was an awful lot of alarm. [Laughs]
Thomas: Yeah.
Andrew: Shared on our social media for, to me that I think-
Thomas: Or was there a lag time where they weren’t sure whether they were gonna get these powers or was it pretty much?
Andrew: Oh no, because this is Betsy Woodruff. Again, quality investigative journalist who broke this story for Politico. Again, the documents are not, as far as I’ve been able to find. The new proposed rules that were taken to Congress are not public documents, so the story broke at the same time as Congress saying no.
Thomas: Oh.
Andrew: There was not a lag time.
Thomas: Ah, fair enough then. I withdraw my quibble. [Laughs]
Andrew: [Laughs]
Thomas: Quibbling withdrawn. Well nice job on the wild card, that was a happy face episode, as advertised Andrew. Good work!
Andrew: Alright.
Thomas: I hope everybody enjoys their baseball law. Okay, we’ve gotta thank our top patrons here on Top Patron Tuesday, our hall of famers, our all-time greats over on patreon.com/law. So many good reasons to join, we had the Q&A question thread that only the patrons get to ask, we’ve got a Law’d Awful Movies coming at you again in a few weeks here as well as the bonus stuff we’ve been providing here and there. And we’re gonna thank our top patrons!
[Patron Shout Out]
Thomas: Alright and now it’s time for the thrilling conclusion of T3BE, it’s answer time, how’d we do?
T3BE – Answer
[Segment Intro]
Andrew: It’s answer time! Alright, so Thomas this was an experienced rancher and I really thought you were gonna make a Simpson’s “experienced woodsman” joke there, but you didn’t, that’s fine.
Thomas: Wait, The Simpson’s experienced woodsman?
Andrew: Oh yeah, it was like a season 1, your father’s an experienced woodsman. It was before Home became Flanderised. Anyway.
Thomas: Oh, I always thought that was just from the other – I thought that was referencing, there was another bar exam question. I thought the bar exam had that.
Andrew: It did, it did.
Thomas: Oh.
Andrew: I’m saying the bar exam said “an experienced rancher,” and I thought you might make an “experienced woodsman” joke.
Thomas: No, I mean an earlier bar exam question I thought had experienced woodsman in it.
Andrew: Could have, it would’ve been an even better analogy!
Thomas: Well that’s weird. Okay.
Andrew: Anyway, experienced woodsman [Laughs] experienced woodman! Experienced rancher contracted to harvest his neighbor’s wheat crop for $1,000 (quote) “when the crop [was] ripe.” But, uh, when the crop was ripe the rancher delayed because he had other stuff to do. The neighbor was concerned that the delay might cause the crop to be lost because there’s a history of hailstorms, and in fact the crop was destroyed by a hailstorm in early October before being harvested by our experienced rancher.
Is he liable for the loss? You instantly eliminated A, no because there was no time for performance established in the contract. That’s not true, the language in the contract tying the rancher’s performance to when the crop was ripe was sufficient to establish a time for performance. So good elimination.
Thomas: Good, good. Like I thought.
Andrew: You also eliminated D, yes because a party who undertakes a contractual obligation is liable for all the consequences that flow from his beach – from his breach, and you applied the [Impersonation] “Your Honor, does this look like a man who had all he could eat?” [Laughs]
Thomas: [Laughs]
Andrew: Yeah, that’s dangerous language for exactly the reasons that you said on the show which is what about unforeseen consequences? The rules of contract law limit the recoverability of damages for breach, and one such limitation is that a breaching party’s only liable for loss that it (quote) “had reason to foresee as a probable result of the breach,” (end of quote). That is from the Restatement Second of Contracts, subsection 3, 51. This is the reasonably foreseeable rule, and you gave that exact reason in your answer.
So you narrowed it down to a no answer, because the neighbor failed to tell the rancher that the crop might be destroyed by a hailstorm; or the yes answer, yes, because at the time the contract as made, the rancher had reasons to foresee the loss as a probable result of his breach. That was answer C. I wanna tell you, exactly correct.
Thomas: Alright!
Andrew: You nailed it for the right reasons, four in a row.
Thomas: Seems to easy.
Andrew: You’re over 56% for the first time in 2020.
Thomas: What the? Holy moly!
Andrew: So yeah, we’re inching-
Thomas: Still so far from 60%.
Andrew: We’re inching towards 60 like a very hungry caterpillar.
Thomas: I probably just need to get like 50 in a row correct to get to that 60%.
Andrew: [Laughs] I think fewer than that. So great job! Nice work, you analyzed it exactly correctly.
Thomas: Well thank you very much! To anyone who doubted me, clownhorn you!
Andrew: [Laughs]
Thomas: No, just kidding! Clownhorn You, by the way-
Andrew: That’ll show those SOBs!
Thomas: ClownhornU, isn’t that our PragerU equivalent?
Andrew: [Laughs] Exactly!
Thomas: ClownhornU! Alright well let’s see who – obviously I nailed it and I’m still, even in these really really stressful times still able to, you know, know the law backwards and forwards, since that’s my job here on the show! [Laughs] Who else? Let’s hop in the time machine and see who our big winner this week is.
[Segment Intro]
Andrew: Well Thomas, I think a lot of people missed T3BE last week. A lot of folks played along this week and most of them got it right. This week’s winner is Jenessa Seymour on Twitter who writes “C. I think the ‘experienced rancher’ part is a clue.” Right you are, Jenessa! “Regardless of why the crops were destroyed, the rancher should have known better than to leave the crops for a month and think nothing would happen.”
Exactly right! Key issue foreseeability, experienced rancher absolutely was a clue, you and Thomas got this exactly correct and everyone should give Jenessa a follow on Twitter, she is @jenessaseymour on Twitter, congratulations for being this week’s winner!
[Segment Outro]
Thomas: Alright, thanks so much for listening everybody! Stay safe out there, wash your hands, stay home, all that stuff and we’ll see you on Friday!\
[Show Outro]