Transcript of OA392: In the Aftermath of George Floyd


Thomas:         Curfews are constitutional, right?  But it seems like if you don’t do ‘em right then maybe they could be struck down?

Andrew:         [Sighs] Yeah, that’s exactly right.  We’ll do more in the bonus since we’re over an hour anyway.  Black Lives Matter sued for an injunction against the Los Angeles curfews.  I think they’re not likely to win that injunction, because curfews are not per se unconstitutional.  We’ll unpack the law in the bonus segment.  If you’re seeing that, yes, they filed for an injunction.  Yes, we support Black Lives Matter, but that doesn’t stop us from sort of handicapping and we know what it takes to get injunctive relief.  You have to show substantial likelihood of success on the merits and I dunno that they’ve got that.  We’ll break that down in more detail.

Yodel Mountain Lightening Round

Thomas:         Okay.  Are we gonna try to lightening round these?

Andrew:         Yeah, let’s lightening round Yodel Mountain.

Thomas:         Alright, like you said at the outset we are going to do an extended episode for patrons, so be sure to get on that,  You’ll have to – if you’re gonna sign on to get this you’ll have to grab that episode and get the extended portion on that file.  Anyway, just to do a lightning round of them:  Rod Rosenstein testified in the Senate?

Andrew:         Yup.  Yesterday Rosenstein went before the Senate Judiciary Committee to testify in connection with the Mueller investigation – finally – and he outright lied.  He said the Mueller investigation produced (quote) “no evidence of conspiracy” (end quote) between the Trump campaign and Russia.  That’s not true.  We will detail the many, many ways in which that’s not true, but you can find that yourself by just loading up – we will link in the show notes – Volume I of the Mueller report.  Do a ctrl+F for C-O-N-S-P-I-R, that will get you “conspire” and “conspiracy,” and you will see ample evidence throughout.  It wasn’t sufficient for them to charge Donald Trump Jr., but that statement was a lie. 

Thomas:         Hmm.

Andrew:         Rather shamefully was allowed to pass undisturbed by the Democrat senators on that committee.  I need to point that out.  He lied to congress.  There you go.

Thomas:         Next item, Judge Sullivan update?

Andrew:         Judge Sullivan ordered the appointment of an amicus in the Michael Flynn Rule 48(a) case, that’s the one where we’re filing our OA amicus brief.  Michael Flynn petitioned for mandamus at the D.C. Circuit to tell Judge Sullivan that he can’t do that, and Judge Sullivan was then instructed by the D.C. Circuit to file a brief responding to that.  He hired outside counsel to file that brief, and it’s a good one! 

We’ll talk about the answer, oral arguments will occur on the 12th of June which is a week from today, Friday if you’re listening to this on a Friday, and that means that our amicus brief, which is due the Wednesday before, will still be submitted and will still be considered.  Hopefully Judge Sullivan will have a chance to read it and rely on some of our arguments at that oral argument.  That’s your update on Sullivan.  Again, a bit more detail in the bonus.

Thomas:         Finally, this weird thing that has surfaced about Trump and Epstein?

Andrew:         [Sighs] Yeah… I still don’t know where, but somebody connected to the kind of lefty circles that we hang out in and that our listeners hang out in has started recirculating a lawsuit that was filed in 2016 anonymously, a Jane Doe v. Donald Trump and Jeffrey Epstein, alleging that when she was 13 that she was raped by both Trump and Epstein.  I wanna be super clear here, this lawsuit was filed on June 20th of 2016.  As far as we can tell, it was never served on either Donald Trump or Jeffrey Epstein, and it was withdrawn on September 16th of 2016.  Voluntarily dismissed before anything happened in the case.

Slight eight-second digression, filing a lawsuit does not trigger the parties’ opposition to answer.  I can file a lawsuit right now against Thomas, he doesn’t have to answer that lawsuit until I give him a copy of it and put him on notice.  That makes total sense, right?

Thomas:         Jeez, I wonder how many I’ve already had against me?

Andrew:         Yeah!  I certainly could have!  There’s nothing to stop me from doing that.

Thomas:         Just venting?  [Laughs]

Andrew:         [Laughs]

Thomas:         The whole thing where you type up the email but don’t send it?

Andrew:         Yeah!

Thomas:         That’s what Andrew does with lawsuits.

Andrew:         That’s not a bad analogy, because it’s filed with the court, that doesn’t prove in any way that Thomas knows it exists.  In fact, there is no reason for you to know that it exists simply upon filing, I’ve gotta give you a copy.  That’s called service of process and that’s what triggers your 30-day – and again, it varies, but in general triggers an obligation for you to answer the complaint within 30 days.  No answer was ever filed by either of the defendants in this case, which strongly suggests that it was never served on them. 

Here’s what I have to say.  We all have made up our minds about the character of Donald Trump and Jeffrey Epstein.

Thomas:         Mm-hmm.

Andrew:         We do not need additional allegations to tell us about the sexual character of these two men.  Citing as evidence a complaint that was filed but not served is bad practice.  Because Larry Klayman could seriously – “Hillary Clinton-

Thomas:         There is absolutely zero bar for truth on this.

Andrew:         There is no check whatsoever because the court literally will not act on it except to dismiss for lack of prosecution if you file a case and fail to then file the return of the presentment of the summons within a reasonable period of time.  The case that I filed against you last year, Thomas and I never sent to you? 

Thomas:         Yeah.

Andrew:         The court eventually is gonna be like “okay, I’m dismissing this out for lack of prosecution by the plaintiff.”  Other than that, the court doesn’t look at it, they don’t fact check it, they don’t evaluate.

Thomas:         So not at all to say that this is impossible that it happened?

Andrew:         No!  Right.

Thomas:         Because these people are monsters, but this is zero evidence.

Andrew:         It is not acceptable to use this as evidence and it’s doubly misleading to start putting up a filing from 2016 that literally was filed four years ago as if this is breaking news or evidence.  It isn’t, it’s bad, don’t rely on it.

Thomas:         Well I feel like we did the whole deep dive on that one.

Andrew:         Yeah, I think that’s right.  We got this one.  [Laughs]

Thomas:         Alright, well now it is time to thank our new patrons at  They’re enjoying the goodies; they’re enjoying this very bonus episode that’s going to be longer for patrons and all the good stuff.

[Patron Shout Outs]

Thomas:         Alright, now it is time for T3BE.

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