Transcript of OA440: Rudy’s Literal Meltdown

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[Show Intro]

Thomas:         [Singing] Hello Andrewww!  It’s episode 440!  Opening Arguments, A-440!  Music joke.  How’s it going?  It’s Opening Arguments, it’s episode 440, I’m Thomas, that’s Andrew, how’re you doing?

Andrew:         Was that a 4/4-time joke?

Thomas:         No, A-440 is used for tuning, it’s a reference note for tuning, but not all music is based on 440, I guess it would be Hz?  Sometimes people tune a little differently, they’ll tune A to something a little lower, a little higher.  But A-440!  If you’re tuning your guitar while listening [Sings] Dooooooo!  It’s something like that.  Okay.  Anyway, how’re you doing, Mr. Fantastic?

Andrew:         Well, I learned something here today, Thomas. 

Thomas:         Oh, that’s what the show’s for.

Andrew:         I’m doing even better than fantastic.

Thomas:         [Laughs] I’m not sure how I’m doing until you explain what’s happening.  That’s been true many weeks, I assume Trump’s still trying to steal the election?  I think they’re like – technically they’re like 1 for 30 or something on the lawsuits.  I actually don’t remember what the one is?  I wanna know, that’s gonna be my first question.  But we got more legal shenanigans to cover. 

Andrew:         We do.

Thomas:         But also, I’m excited because we have the one and only Morgan Stringer, who – we were already busy, by the way, patrons will already know this – busy recording, you know, an almost two-hour Law’d Awful Movies on “The Plot Against the President,” which was fantastic.  Go to, check it out.  We break down the absolute monstrosity that is the plot against the President.  Devin Nunes – just to give you a little preview – it’s a documentary that tries to make Devin Nunes out to be some, like, secret badass genius and that’s already-

Andrew:         It is a documentary that shoots Devin Nunes all but planting the flag at Iwo Jima. 

Thomas:         [Laughs] There’s a lot of walking down staircases.

Andrew:         Oh god.

Thomas:         There’s a lot of “what can we do to make him look like a congressperson?”  [Laughs]

Andrew:         [Laughs] Right!

Thomas:         And they’re like “I’m as lost as you are, director.  I’m just a cinematographer over here, I don’t know.  How could we possibly make this guy look like a congressman?”  I bring this up because we were, you know, busy doing that for hours and hours of stupidity, but fortunately we have one expert Morgan Stringer to listen to Rudy Giuliani so that none of us have to!  [Laughs]

Andrew:         [Laughs]

Thomas:         We’re gonna have her come on to give us the greatest hits later, I can’t wait for that.  Been seeing a lot of memes of Charlie Day being Giuliani, those have been funny.  Quick announcement before we get going.

Andrew:         That’s right, Thomas.  We are getting together with our friends in podcasting with a bunch of great podcasters to head on over to the Cognitive Dissonance live stream.  This is going to be on Black Friday, that is Friday, November 27th.  Instead of-

Thomas:         Yeah, I was gonna say! [Laughs] I know what you’ll all be not doing, which is going out to a place to go shopping, I hope.

Andrew:         Yeah.  Stay home.  We are the lead off hitter.  What sabermetrics tells us is the most important spot in the lineup.

Thomas:         Ooh!

Andrew:         So 4 pm Eastern Time, 1 pm Pacific.  You can figure out your time.  You’re gonna head on over to  We are part of a three-hour fundraiser for the Georgia Democratic runoff candidates, Raphael Warnock and Jon Ossoff.  It’s gonna be a great time!  We’re doing it, Seth Andrews, the How to Heretic guys, all of the folks over from Puzzle in a Thunderstorm; the people you’ve come to expect.  What we are doing is encouraging donations to Act Blue to fund the Georgia Democratic runoff. 

Here’s the real thing, and I’ve gotta make this plea to all of our listeners.  100% this will be competitive.  If we lose out and the Scathing guys raise more money for Warnock and Ossoff than we do?  We will never ever live that down.  Show up, show up to the live stream.  We have multiple donors who have lined up to make matching contributions.  This is a way, everybody says “I listen to Opening Arguments, you keep me sane but you also report on terrible stuff.”  Well, you know, if you wondered if there’s something you can do this is [Laughing] literally the easiest thing you can do.  You can listen to bonus episodes of this and other fantastic shows, it’s gonna be funny, it’s gonna be uncensored, and raise money for Warnock and Ossoff to take back the Senate.

Thomas:         It’s so important.  It’s so important, I’m glad they’re doing that, that’s gonna be a lot of fun.  Yeah, we’ll be first up, so I think the sabermetrics tell us if the elections don’t go well, I think we’re to blame.  I’m not ready for that kind of- don’t let that happen, everybody.  Come donate.

Andrew:         I can’t handle that kind of pressure.

Thomas:         Come watch and donate.

Breakin’ Down the Law – “Ascertaining” Who Won the Election

[6:29.3] [Segment Intro]

Thomas:         Alright Andrew!  I have ascertained that Biden won the election.

Andrew:         [Laughs]

Thomas:         But apparently it’s more … complicated for some people to do some ascertaining, some ascertainment, than that.  Why don’t you tell us all about ascertainment?

Andrew:         Yeah, so I would not have thought that I would be doing a 15-minute segment on my show about the definition of ascertainment pursuant to the Presidential Transition Act of 1963, but, you know, here we are.  Many of you have been following this story, and I wanna break down what it means and, of course, the massive Republican hypocrisy on this issue because it’s a political issue, therefore there is massive Republican hypocrisy. 

What’s going on?  GSA Administrator Emily Murphy is basically the Kim Davis of this election.  She is required to ascertain that Joe Biden is President-Elect of the United States, ‘cuz he is, and pursuant to the Presidential Transition Act of 1963 she is authorized to release information and funds to the Biden transition team.  The reason, you might be asking, I’m going to explain that the law is crystal clear, you might be asking okay, well if it’s so clear why haven’t there been lawsuits yet?  I think there are really two answers to that.  The first is the law is crystal clear, but I don’t know how much of an enforcement mechanism it has.

Thomas:         Hmm, great.  So, it’s Clear as Kushner kind of thing?

Andrew:         [Laughs] Yeah, right.  The second point is I do think there is – we’re stuck, this is the last week of it as we’re gonna go into in more detail on Tuesday’s show, but we’re stuck in this kind of limbo in which the Biden incoming administration is rolling their eyes but not ready to go to court yet over the dominant narrative of “well, we just have to give President Trump enough time to get over the fact that he lost.”  I think they are thinking that Murphey will ascertain the results of the election next week and therefore that will obviate the need for them to have to bring a lawsuit-

Thomas:         Hmm.

Andrew:         -seeking a declaratory judgment and injunction requiring her to do that.  What does it mean to “ascertain” an election?  As it turns out this means a common-sense judgment.  The Presidential Transition Act of 1963 is super weird.  By the “super weird,” here’s what I mean by that.  Usually I will read the common title of an act then, as a lawyer, I will tell you what section of the U.S. Code you can go to to find the act. 

Here the answer is you go to 3 U.S.C. § 102.  I will link that in the show notes.  The problem is when you type in 3 U.S.C. 102 or you click on the link in the show notes, you go there, you will see a two-line provision that says the President gets a $400,000 a year salary. 

Thomas:         Hmm.

Andrew:         You will see nothing about the President Transition Act of 1963 and all of the provisions that I’m about to talk to you about.  In order to find it you have to click on the editorial notes section.  [Laughs]

Thomas:         Wow.

Andrew:         Let me explain that for a second.  Notes in the Annotated U.S. Code are meant to be interpretive guidance.  A statute might say you are required expeditiously to mail out ballots to voters, then in the notes it might say “this provision was amended in 1997 and replaced, and added the word ‘expeditiously’ after X thing happened and it took 5 weeks for ballots to go out to voters and presumptively is meant to say we shouldn’t delay by 5 weeks.”

If you go to court over that particular statute, the note isn’t technically part of the law, but is interpretive guidance.  I have never ever seen this.

Thomas:         Yeah.

Andrew:         Again, I’m not an administrative lawyer, I know we have some who listen to the show, so I invite your commentary.  I have never seen an entire act contained only in the interpretive notes section.

Thomas:         Hmm, so wait who wrote those interpretive notes?  Could anybody?  The custodian could’ve just come in there and scribbled some stuff in the margins?

Andrew:         [Laughs] There are two processes for this.  The first is that the notes are compiled by the West company that puts the books together, but the second is that a law can specify-

Thomas:         So, you’re saying this is like “see 3 U.S.C. sticky note 2”

Andrew:         Yeah!  It kind of is like that.

Thomas:         Weird. 

Andrew:         All of the “enforcement mechanisms,” and I use that with scare-quotes, are framed in terms of what the Presidential Transition Act of 1963 says, which is “accordingly, it is the intent of the Congress that appropriate actions be authorized and taken to avoid or minimize any disruption in the transfer of power from the outgoing administration to the incoming administration.”

All of the things I’m about to tell you about, that’s how they’re set forth.  They’re set forth in section 3(a) and there are ten different things this transition act is meant to provide to a campaign:  Office space, payment of staff, payment of expenses for experts, payment of travel expenses, communication services, printing and binding, postage, briefings and workshops (that’s a really important aspect, as you might imagine), the preparation of a transition directory (that is saying hey, don’t call Karen over in accounting anymore, you wanna call Bob who’s coming in), and finally, human resources and various software. 

It also provides for transmitting certain non-public information because you’ve brought in and your transition people are now technically government employees during the span of the transition.  They occupy a little bit of a grey area and I’m not gonna go into whether they get paid and all of that, that’s covered by the transition funds and there are some wrinkles that you don’t really care about. 

None of that has happened.  The reason that none of that has happened is because Emily Murphey has not ascertained that Joe Biden is the President Elect.  The question is what does it mean to do that and should she have?  The answer is subsection 3(c), says “the terms ‘President Elect’ and ‘Vice President Elect’ as used in this act shall mean such persons as are the apparent successful candidates for the office of President and Vice President respectively as ascertained by the administrator.”  That’s why it’s called ascertainment!

Then you might say okay, well what does it mean to be the “apparent successful candidates?”  The answer is that’s not defined.  The answer is use your common sense.  We can’t define every word in every law-

Thomas:         Yeah.

Andrew:         Right?  Apparent successful candidate in 1963 when they passed this Act, having had, by the way, a very, very close election-

Thomas:         Right.

Andrew:         Between Kennedy and Nixon in 1960, you still knew what it meant to be an apparently successful candidate, which, by the way, 100% is what Joe Biden is.  How do I know this?  [Laughs]

Thomas:         [Laughs]

Andrew:         Because of Todd Zywicki.

Thomas:         Oh, I know it just ‘cuz he won and it’s in the news.

Andrew:         Well, yes.

Thomas:         But Todd Zjwicki told you?

Andrew:         Todd Zjwicki told me.  Well, he didn’t quite tell me.  [Chuckles] What he did was wrote perhaps the angriest law review article I have ever seen.  I mean that sincerely, as somebody who writes rather angry law review and other articles and does a rather angry show sometimes.  In 2001 he wrote an article for the BYU Law Review called “The Law of Presidential Transitions.”  That argued in 2000 that the then Clinton appointee as the GSA administrator violated the law by failing to ascertain that George W. Bush was President until December 14th, which was the day after, immediately after, Bush v. Gore came out.

Thomas:         Right.

Andrew:         And Gore conceded to Bush. 

Thomas:         Ah, so you mean when it was clear who won, basically?

Andrew:         Right, when it was clear who won.

Thomas:         Okay.

Andrew:         Zjwicki said-

Thomas:         So, this person did their job, really.

Andrew:         Yeah.  You had a requirement to do that much, much earlier and the reason you had a duty to do that much, much earlier is because “apparent winner of the election” does not mean you have to wait until the other party concedes, it does not mean you have to wait until all of the legal battels are exhausted, it means you use your judgment, you say “who’s likely to win the election?”  Or, in Zjwicki’s words, “who has a majority of the pledged plus certified electoral votes,” and when that is a number over 270, when one person has a majority as George W. Bush had on November 26th, 2000, then you are required to ascertain that they are the President under the Presidential Transition Act of 1963.

Thomas:         Okay, but that’s wrong.  I mean, there was a court case, I mean, had Bush v. Gore gone the other way maybe it’s a 500-vote margin in Florida, you can’t actually ascertain with certainty who won until you know what’s happening with those butterfly ballots or whatever, hanging chads.

Andrew:         I’m glad you have raised that argument.  There is an entire section in “The Law of Presidential Transitions-

Thomas:         Oh great, another sticky note?  [Laughs]

Andrew:         [Laughs]

Thomas:         I just found it!  Hold on, let me peel this off, see what it says.

Andrew:         -that makes two arguments.  The first argument that responds to that is there’s no problem if you certify an apparent winner-

Thomas:         Hmmm.

Andrew:         -and that person later turns out not to be the winner.

Thomas:         Right.

Andrew:         The plain language of the act requires the administration, (quote) “clearly limits the administration’s discretion in naming the President Elect and cannot be circumvented simply because you think that that person might have the results overturned by a later court case.” 

Again, let me quote from Zjwicki.  “By using the term ‘apparent,’ Congress recognized the possibility that some contingency might intervene that caused a situation where the ‘apparent winning candidate’ did not, in fact, turn out to be the actual winning candidate.  This could be for any number of reasons including the death of the President Elect during the transition period, electoral fraud overturning an election, resignation of a candidate, ballot recounts that changed the result after the initial general election, or a faithless elector who violates his pledge and votes for a candidate different from the one for whom he promised to vote.  The drafters of the act specifically considered the possibility that faithless electors and the fact that faithless electors could upset the final recognition of the apparent winner as the actual winner.  Acknowledging this was a possibility, the drafters nonetheless agreed that this possibility would not provide a basis for refusing to recognize the pledged electors in ascertaining an apparent winner.  Any of these contingencies could occur, and, in fact, have actually occurred in prior elections, but there is no reason to believe that the possibility they may arise again should interfere with making the designation of an apparent successful candidate when one can be identified.” 

I would add in response to the ambiguity that was created in 2000, Congress amended the Act.  In response to this confusion, which look, I’m making the strongest counterargument.  I certainly think the activity there was undertaken in good faith and was reasonable.

Thomas:         Mm-hmm.

Andrew:         But nevertheless, backing up this argument is the idea that Congress in 2001 amended the Presidential Transition Act of 1963.  What they did was they added a subsection (h).  That subsection (h) added, in addition to President Elect and Vice President Elect, added a section for eligible candidates. 

Thomas:         Huh.

Andrew:         In other words, in the event that you can’t ascertain who the President is, but you can ascertain who might be the President, there’s another provision whereby you can then authorize some of the transition to eligible candidates, and you could authorize it to both people.  The only person who is prohibited from receiving funds under the Presidential Transition Act is, of course, the incumbent President because there’s nothing to transition to the incumbent President. 

It is manifestly clear to me that Zjwicki was correct in 2001.  When you read this statute, the point of the statute is to err in favor of a smooth transition from the outgoing administration to the incoming administration.  You don’t have to wait for the outgoing administration to concede, you don’t have to wait for all the recounts to be over, you don’t have to wait for all of the legal battles to be over, it’s not a problem. 

We’re talking $10 million dollars, which, admittedly, I’d like $10 million dollars, but as a function of the federal government that’s couch cushion money.

Thomas:         Yeah.

Andrew:         In the event that you erroneously certify the wrong President, what’s the worst that can happen?  The worst that can happen is – the Act, by the way, provides that the new people that you bring in you have to prepare a Memorandum of Understanding, they have to sign nondisclosure agreements if they’re getting non-public information.  They have to abide by the law.  The worst that would happen is oh, a bunch of people who we thought were gonna have jobs in the next administration, turns out they don’t have those jobs, and they can’t go around, they can’t sell those secrets to the Russians or whatever.  Alright, we spent an extra couple million dollars on office space and postage for people who, as it turns out, are not gonna occupy the buildings.

The framers, bipartisan, in Congress, on multiple occasions have said yeah, we’d rather spend an extra couple million dollars and maybe a crazy contingency means we flush that down the toilet, than have a situation like the one we have now, in which the incoming administration is being deliberately hamstrung.  They are being kneecapped right here by not being provided information, office space, and ability to bring in their own people to start the hard work of rebuilding this government from the inside.  There is no basis, and hopefully-

Thomas:         It’s truly disgusting. 

Andrew:         Yeah.

Thomas:         I mean, come on with this.

Andrew:         Yeah.

Thomas:         So much of it, too, is all the Republicans are like well, we just wanna let him kinda come to the conclusion.  No!  He lost!

Andrew:         The law says you don’t get five stages of Kubler-Ross grief of the outgoing- the law says as soon as you know who the apparent winner is then you should begin the ascertainment process.  That can begin as early as election night.

Thomas:         Yeah.

Andrew:         2012 we knew who the winner was, who the apparent winner was on election night.  Here if Emily Murphey had taken until Saturday, until Fox News said in 900-point font “Joe Biden is apparently President,” that’s all we’re saying.  Use ordinary judgment, take a look and see who is likely to win a majority of the actual, pledged, and certified electoral votes.  That answer is Joe Biden.  The law is clear, she is required to ascertain that and to begin the turnover process.  I think you will see legal action next week if she hasn’t by then.

Thomas:         I just picture an exacerbated kindergarten teacher pointing a stick at a board that says “Biden, 306,” “uh-huh.”  “Trump, 232,” “uh-huh.”  “So, who won?”  “I dunno.”  [Screams] “Gah!”

Andrew:         [Laughs]

Thomas:         I can’t tell which number’s bigger than the other, I don’t know, I don’t understand.

Trump Election Lawsuits Update – Michigan

[24:13.5] [Segment Intro]

Thomas:         What’s happening with these lawsuits?  Should I be at all worried?  There was some talk of, you know, Michigan, they’re not, people not certifying them and then they were certifying them?  There’s also a really nice rant by somebody that Teresa posted that was pretty amazing dressing down these Michigan people who were refusing to certify these election results.  What’s happening, Andrew?

Andrew:         The answer is Donald Trump has confirmed in his legal filings today that all of this is a pretextual sham.  I’m gonna prove that to you using his own words in his own filings.  I’m gonna make this crystal clear.  The analogy I used when I went on The Daily Beans earlier this week, and I know – I really did this for you, Thomas.

Thomas:         Oh, for me?

Andrew:         Because I know how much our listeners love when we use football analogies.

Thomas:         Hmm.

Andrew:         This is the way to think about this election.  It’s a football game.  Joe Biden has 21 points, Donald Trump has 3, and as time elapses, he tries to kick a field goal.  The field goal is wide right.

Thomas:         Mm-hmm.

Andrew:         Trump throws the flag.

Thomas:         [Laughs] The challenge flag.

Andrew:         As you’re looking at it, yeah, you’re saying well that seems like a really stupid challenge flag because, you know, you kicked it, it was wide right by 15 yards.

Thomas:         Time is expiring, yeah.

Andrew:         Yeah.  Then you would say, as a football fan, but who the hell cares?

Thomas:         Yeah.

Andrew:         Oh, you wanna lose 21-6?  Great.  Are you trying to cover a 17-point spread?

Thomas:         [Laughs]

Andrew:         What’s going on?

Thomas:         I think I made that joke last week where I was like you know what?  Have some more votes.

Andrew:         Yeah!

Thomas:         We’ll give you, just 10,000 votes, there you go.  What’s that?  It didn’t do anything?!  Gosh.  Wasting the court’s time with this nonsense.

Andrew:         That’s right.  Remember, Joe Biden has 306 pledged and certified electoral votes.  We’re gonna talk next week about the distinction between those two.  That means you must invalidate 37 of those votes to make a difference.  The Trump campaign has lawsuits active in two states right now:  Pennsylvania and Michigan.  Pennsylvania plus Michigan added together have 36 electoral votes.  In other words, you could take the entirety of their nonsense lawsuits – and by the way I’m about to explain that they are nonsense – and subtract 36 from 306 and you get 270, which, you know-

Thomas:         Oh, that still wins you the election.

Andrew:         It’s super close, but yeah!  You still win the election.  No one cares!  You win game 7 of the world series 2-1, to mix a sports metaphor, no one is like “oh well you’re just barely the world series champion.”  No!  You won. 

Thomas:         I will say, though, that would really scare me if it was that close because of the weird faithless elector stuff.

Andrew:         That should scare you.  But here’s what shouldn’t scare you:  I have said that there are – Pennsylvania has 20 electoral votes; Michigan has 16 electoral votes.  I have said that there are lawsuits in both of those states?  Kind of not now.  [Laughs]

Thomas:         Ooh!

Andrew:         This relates to the Michigan lawsuits.  Let’s start with that because this is something that broke late last night, developed this morning and I think most media outlets do not understand the significance of what happened in Michigan. 

There is a pending state court case, that is Trump v. Jocelyn Benson, that is in State court, the relief that they were seeking had to do with stopping the counting of absentee ballots, had nothing to do with certifying the results.  This is the Complaint; I know a lot got lost but you may have seen media reports about how the Trump campaign filed an appeal but they filed it first in the wrong court and then they didn’t attach the right papers to it.

Thomas:         [Laughs]

Andrew:         Yeah, that case is still pending, but I don’t know what relief the Michigan state courts can award in that case, because it just says “we want an injunction to stop the counting of absentee ballots” because it claimed that observers did not have access to view all of them, particularly video footage of the drop boxes before they were later counted.  Also had that “hearsay within hearsay” where the poll watcher said she heard from another poll worker that they’d been told by yet other poll workers-

Thomas:         Right.

Andrew:         -to change the dates on late ballots and the judge was like…

Thomas:         Nah.

Andrew:         You’re kidding me.  That’s your evidence?  You once heard from a guy whose nephew’s brother’s cousin – get out of here with that.  That lawsuit is pending, but like I said, the relief it wants is moot right now.  The case that matters is also called Donald J. Trump for President v. Jocelyn Benson, but is the federal case.  That is filed in the U.S. District Court for the Western District of Michigan.  That is a request not to certify the results from Wayne County, which is the county of Michigan that includes Detroit, and if those votes are not certified at all, if they’re just thrown out and zeroed, as with all of these lawsuits, yes, if you exclude the cities in blue states, they become red states.

Thomas:         Yeah, you mean the places where all the people live?

Andrew:         Yeah, exactly.

Thomas:         Okay.

Andrew:         Where people live and voted for Joe Biden.  This had the affidavits filed by two canvassing board members.  The canvassing board is split 2-2, two Republicans, two Democrats, and initially the two Republicans, William Hartmann and Monica Palmer, refused to certify the results in Wayne County.  Now their refusal was based on nonsense.  It was well, you know, there’s all sorts of fraud and we’re not convinced and blah blah blah blah blah blah.  Total BS complaints.  Then there was public pressure and they came together and they said okay, we will in fact certify those results after all. 

Now they have filed affidavits in which they said “well, I was misled, I voted to certify the results but I thought that the canvassing board was gonna do some additional stuff so now I want takesies-backsies.”  There are no takesies-backsies.

Thomas:         There are never takesies-backsies.

Andrew:         Yeah.

Thomas:         I’m actually surprised, you learn something new every day on this show. 

Andrew:         [Laughs]

Thomas:         Not a lot of takesies-backsies in the law.

Andrew:         Not a lot of takesies-backsies!  Again, before I get into the legal significance of this, I want to read to you from the affidavits.  First, William Hartmann’s affidavit, this is paragraph 10.  “During the evening,” so first he says “I wanted to raise all these objections about voter fraud.”  Then, paragraph 10, this is written in William Hartmann – this is an affidavit so these are the facts of which he has personal knowledge and is testifying under penalty of perjury as true and correct.

(Quote) “During the evening, Wayne County counsel, and my colleagues on the Board, continued to discuss irregularities in the [canvassing].  Ms. Anderson-Davis” (that is the lawyer) “advised the Board that the discrepancies were not a reason to reject the certification, and based on her explicit legal guidance, I was under the belief that I could not exercise my independent judgment in opposition to the certification.  Therefore, I voted to certify the results.”

Then it says, paragraph 11, “I was enticed to agree based on the promise that a full and independent audit would take place.  I would not have agreed to the certification but for the promise of an audit.”  Then if you go all the way down, this is actually missing a page in the court filing, they’re gonna have to supplement it.  It skips from paragraph 13 to the middle of paragraph 17, but it doesn’t really matter.  Paragraph 18 says “Now I voted not to certify, and I still believe this vote should not be certified.  I remain opposed to certification of the Wayne County results.”  That’s what their first witness says, William Hartmann.

Monica Palmer says the exact same thing.  “A motion was made to certify” – starting at paragraph 16 – “A motion was made to certify the vote, and I voted not to certify.  The vote to certify failed 2-2.  After the vote, my Democrat colleagues chided me and Mr. Hartmann for voting not to certify.”

Thomas:         Hmm.

Andrew:         “The public comment,” (paragraph 18) “the public comment continued for over two hours and I felt pressured to continue the meeting without break.”  Then, paragraph 20, “After being told by Ms. Anderson-Davis” (that is the Wayne County lawyer) “that I could not use my discretion regarding the anomalies, I believed I had no choice but to certify the results despite my desire to oppose certification based on the incomplete record.

Thomas:         [Laughs]

Andrew:         So again, their witnesses in their affidavits say “I voted to certify the results, but I really didn’t mean to.”  Now you might ask, and this is the capper, you submit affidavits based on the personal recollections and knowledge of these two individuals, to get judicial relief.  Thomas, with your legal training-

Thomas:         Hmm, okay.

Andrew:         What motion do you think these affidavits are attached to?  What relief does the Trump campaign want?

Thomas:         [Laughs]

Andrew:         For which they have filed these affidavits-

Thomas:         Oh my god.

Andrew:         That have said yeah, I voted to certify but I wanna take it back.

Thomas:         Wow.  A takesies-backsies motion?  I don’t, I can’t even think of what the relief would be.

Andrew:         You would think it would be some kind of takesies-backsies motion. 

Thomas:         Uh-huh.

Andrew:         We might be laughing about it and saying-

Thomas:         But you know it’ll be the Latin words that mean takesies-backsies, but yeah.

Andrew:         Takeio backsium, right.

Thomas:         [Laughs]

Andrew:         How surprised would you be, on a scale of zero to my level of surprise this morning-

Thomas:         Rudy Giuliani, yeah.

Andrew:         -that these affidavits are attached to a Notice of Voluntary Dismissal that I’m going to read to you in its entirety right now.  “Plaintiffs” (that is the Trump campaign) “voluntarily dismiss this action under Federal Rule of Civil Procedure 41(a)(1)(a), the Wayne County Board of County Canvassers met and declined to certify he results of this Presidential election, see attached affidavits.”

Thomas:         What?

Andrew:         [Laughing] “What?’ is the right answer!  Yes, this is attached – you are allowed in the Rules of Federal Procedure, to withdraw your complaint.

Thomas:         Mm-hmm.

Andrew:         To take that back.

Thomas:         Oh wow! 

Andrew:         Yeah.

Thomas:         They’re trying to form like a singularity of take-backsies.

Andrew:         [Laughs] To say, you know what?  I don’t wanna go forward with this case anymore.  As you might imagine, those motions are liberally granted.

Thomas:         Yeah.

Andrew:         Even if – and look, I have opposed once in my career, practicing law for almost 25 years now, and once in my career I have opposed a motion to voluntarily dismiss a case in court and that was against – it’s actually a pending case – someone whom I believed was a serial litigator, who would bring a case, I would file a motion to dismiss, then they would say well we’re gonna voluntarily dismiss this but then we’re gonna refile.  I laid those facts out to the judge and I said look, this kinda feels like gamesmanship, and the judge was like yeah, you know what?  If it is gamesmanship that’s not a huge burden on you, you gotta remove the case, you’ve gotta file an answer, but you’ve already done that work already anyway so on the balance I’m gonna let them voluntarily dismiss out their case, so I lost.  I’m not surprised that I lost, that’s the standard in the interest of justice.

But think about this.  And this is what I alluded to at the beginning.  What the President’s lawyers are saying is “we no longer want any relief from the courts.” 

Thomas:         [Laughs]

Andrew:         There is nothing that this federal court judge can do-

Thomas:         Yeah.

Andrew:         They could say yeah, okay, great.  We’ll dismiss.

Thomas:         Tell me what you want me to – yes?  No?  Denied, granted?  I dunno.  I think the judge can just send the big Facebook thumbs-up button in reply.  You’re like “I don’t know what that means.”  [Laughs]

Andrew:         I have been refreshing the docket all day while we’ve been here because I am dying to figure out what the Michigan court is gonna do here.  Look, yeah, the judge could issue a minute order, that is something that shows up on the docket, that just says, because this is ECF no. 33.  This is entry no. 33, Notice of Voluntary Dismissal.  The judge could very easily just enter a minute order that says “notwithstanding the factual inaccuracies contained in No. 33, Notice of Voluntary Dismissal, and noting that this court is not agreeing that the Wayne County Board of County Canvassers declined to certify the results of the Presidential election, this motion is granted.”  That’s what I would do if I was this judge.  By the way, it’s what I think this judge will do.

Thomas:         Well what is granted? 

Andrew:         The Notice of Voluntary Dismissal.

Thomas:         Oh, gotcha.

Andrew:         Then the case is closed.

Thomas:         Okay, case closed.

Andrew:         Yeah!

Thomas:         Then will Trump say “yeah, we got what we wanted, we won!” [Laughs]

Andrew:         Trump will say-

Thomas:         2 for 29!

Andrew:         But he will have lost because Wayne County did-

Thomas:         [Laughs] He filed a motion that says “can you agree we lost this one?” 

Andrew:         [Laughs]

Thomas:         Then the judge is like “yes, I agree you lost this one.”  We won!

Andrew:         Yeah! 

Thomas:         Victory!

Andrew:         That 100% this confirms that this is just a stunt, because Wayne County has met, they have certified their results, and look, it’s a nontrivial argument.  It’s not supported by facts, but if that certification was precured under duress?  Absolutely you could get judicial relief.  You could get injunctive relief overturning the certification, that’s what they filed this complaint to do in the first place!  But they want to dismiss it!  They’re like alright.  It’s like Vietnam circa 1973, declare victory and withdraw.

Thomas:         As our favorite movie “A Fish Called Wanda” says, “Vietnam was a tie!”

Andrew:         Yeah! [Laughing] That is what they have said!

Thomas:         [Laughs]

Andrew:         Let’s explain this in mathematical terms.  Once this notice is entered, once Trump is allowed to voluntarily dismiss out this case, there will now be no case pending in Michigan-

Thomas:         Wow.

Andrew:         -which can give him the relief in Wayne County that he wants.  The State case is about stopping recounts.

Thomas:         As big of pieces of crap as these people were who are like trying to not certify the results and ooh, curiously the most racially diverse county in the state.  It’s all horrible, but I wonder if this was intentional to be like “oh, man!  I meant to not certify.”  Maybe to get Trump off their back?  I dunno, it’s really funny.  “Oh, the lawyer told me I had to ‘cuz you know, obviously I have to, but I didn’t know that I could’ve not.”  Then they try to do a takes-backsies lawsuit.  Is it all because of the baby in the White House that we’ve just been hostages to for four years?  Like that Twilight Zone episode with the kid?

Andrew:         Yes, is the answer to your question.

Thomas:         [Laughs]

Andrew:         We have evidence, it is widely reported in the news, that the Trump campaign contacted Monica Palmer at least.  That is a very, very – the first part of what you asked is “is this all just theater?”  Yes.  And “is it all just a temper tantrum from the giant baby in the White House?”  Yes.  The second part is, is it plausible that these folks are trying to seek some kind of cover from undo pressure from the giant baby in the White House?  Again, we can’t prove that part, but we can say it certainly seems plausible.

Thomas:         That’s the last – there won’t be any pending litigation in Michigan?  There’s nothing to worry about, are we all fine?  Is everything fine, Andrew?

Andrew:         Well that was the aperitif to the litigation in Pennsylvania, which has been dominating the news cycle and in which we had our own intrepid associate, Morgan Stringer-

Thomas:         Hmm.

Andrew:         -listen to five hours-

Thomas:         Wow!

Andrew:         -of Rudy Giuliani arguing in open court in the Boockvar case. 

Thomas:         You’re not gonna be sued for that, are you?  I mean, you made somebody listen to five hours of Rudy Giuliani?

Andrew:         [Laughs]

Thomas:         Surely there’s some employment law that-

Andrew:         I paid her for that! [Laughs]

Thomas:         I know! 

Andrew:         That is hazard pay.

Thomas:         That doesn’t make it better!  [Laughs]

Andrew:         [Laughs]

Thomas:         You tortfeasor!  Oh good, I snuck that one in!

Andrew:         [Laughs]

Thomas:         Andrew’s a tortfeasor! 

[43:08.0] [Commercial]

Trump Election Lawsuits Update – Pennsylvania with Morgan Stringer


Thomas:         And we are joined by, I’m assuming, a very disgruntled Morgan Stringer! [Laughs] How’re you doing, Morgan?

Morgan:         I’m doin’ alright, how are y’all?

Thomas:         Good.  Andrew, is it – are we okay to talk to someone who’s obviously suing you for intentional infliction of emotional distress?

Andrew:         [Laughs]

Thomas:         Is that normal?  Can we talk to her?  Can we say-

Andrew:         She’s, by appearing on this show, she has waived all rights in perpetuity throughout the universe.

Thomas:         Oh good. 

Morgan:         I knew this was a trap!

Andrew:         [Laughs] Of course it was!  So, Morgan, we just went through the Michigan lawsuit and the absolutely bonkers procedure that happened there today.  You have been following the extant lawsuit, parallel lawsuit, in Pennsylvania, the Boockvar case, in which Donald Trump is seeking to have Pennsylvania not certify its electors.  Why don’t you tell us about that lawsuit and tell us about Rudy Giuliani’s fantastic oral argument skills?

Morgan:         Okay, well, it was also a very normal and very cool time [Laughing] attending that hearing.  Basically, what the Pennsylvania lawsuit is, it’s very weird.  They’re claiming – essentially there’s two voters, and they are claiming that basically they – I’m assuming they are Trump voters, right?  They are saying when they went to vote, this is Lancaster County and some other rural county up in Pennsylvania, they went to go vote, but they forgot to put their ballots into the secret ballot envelope, then they went ahead and mailed it, but they’re saying that their votes were not counted.

Basically, what they’re trying to do now is say okay, well, our county did not tell us that we could go and cure our ballots.  The Pennsylvania code says we can’t cure our ballots, but then the Pennsylvania Secretary of State has been saying you know, you can cure your ballot, and we would’ve been able to cure our ballots had we lived in Philadelphia or Pittsburg, in those counties. 

They are suing under the theory of Equal Protection, which is an interesting one.  [Laughs]

Andrew:         The remedy they’re seeking for equal treatment, though, is “don’t allow any of these ballots to count?”

Morgan:         Yes.

Thomas:         What?

Morgan:         Yeah, basically.  Also, the Trump campaign is suing, saying that they are also basically being denied equal protection under that same theory, which there’s very clear case law that campaigns can’t just allege that.  You have to show – especially when it’s dealing with a state statute, so in this case that would be the Pennsylvania Election Code.  There was also some confusion where the judge was even asking these two – not the two voters directly, but the attorneys, you know “well, why not sue their counties that did not count their vote?” 

Andrew:         Seems like a good question. [Laughs]

Thomas:         [Laughs]

Morgan:         That’s essentially where your dispute lies.

Andrew:         What was the answer to that?

Morgan:         Well basically it was well – Giuliani responded by saying “well, they can’t sue their counties because their counties followed the law.”

Thomas:         [Laughs]

Andrew:         [Laughs] That seems like not a great admission when you want judicial relief, am I wrong on that?

Thomas:         Yeah…

Morgan:         Well they’re saying “oh no, these rural counties, they all did great.”  He even said this in his oral argument, he talked about how, he’s talked about how these Democrat-run cities have this tradition of voter fraud and I’ll just go ahead and talk about, I guess, Giuliani’s oral argument, which was completely divorced from his claim.  They already acknowledge at the beginning, they said okay, all we’re gonna talk about today is this equal protection claim and this motion to dismiss.  Then Giuliani gets up there and goes on a – I mean, it sounded like I was listening to somebody read out Q-drops.  It was bonkers. 

He started saying “these Democrat controlled cities, they have this long tradition of voter fraud, there’s no way this was an accident.”  He said that COVID-19, the pandemic provided cover for Democrats to, you know, perpetuate this scheme all across the country to elect Joe Biden.

Thomas:         At this point were the judges wearing those glasses that make it look like your eyes are open while actually you’re catching a nap underneath?

Morgan:         [Laughs]

Thomas:         How did they deal with this?

Morgan:         Maybe that’s why they wouldn’t let video happen.

Andrew:         [Laughs]

Thomas:         Oh, I see! [Laughs]

Andrew:         So, let’s get this straight.  The oral argument was over the equal protection count, which is the sole remaining claim in Trump’s first amended complaint that is actually before the court.  The equal protection clause claim, that was the one for which Rudy Giuliani, when asked what level of scrutiny applied said “the normal one,” is that right?

Morgan:         Yes.  So, this was a literal exchange where the judge said “okay, what level of scrutiny do you think I should apply here?”  Then Rudy just goes, “uh, the normal one.”  You can kind of almost hear the sigh in the judges’ voice.

Andrew:         [Laughs]

Morgan:         You know, then the judge is obviously trying to lead him to an answer, like a law school professor would a first-year law student.  He says “are you saying that I should apply rational scrutiny?  Then Rudy Giuliani goes into this tangent, which I did not see widely reported on, about how it’s not “rational” to have all this fraud going on, and it’s not “rational” to-

Thomas:         [Laughs]

Morgan:         Not count these guy’s votes but to count everybody else’s vote.  That is, as listeners will know, that is not at all what “rational” scrutiny means!  It’s not “was this action a logical thing that someone would do?” 

Thomas:         Is Rudy Giuliani a lawyer?  Is he a lawyer?

Morgan:         I honestly don’t know!

Thomas:         [Laughs]

Morgan:         I did laugh because I saw on his, as they were trying to amend the complaint, that Rudy Giuliani filed what he called his “Second Amendment Complaint,” and I was like yeah, it’s probably about to be a “Second Amendment Complaint” because I’m sure this clerk would like to shoot you because you’ve been trying to file these motions like five times now?  I keep seeing “Plaintiff will refile, plaintiff will refile” and yeah, it’s clear he has no idea what he’s doing.  I mean, he hasn’t entered a federal appearance since I was literally a fetus. 

Andrew:         [Laughs]

Morgan:         It’s been fine.  But yeah, Rudy was going off about binoculars saying – this is another one that I hadn’t heard before, that these poll watchers, these Republican poll watchers were penned into a pen and there was a big fence and he went off into some weird aside saying that some big company must have gotten a big contract from the Democrats to build these fences to keep the Republican poll watchers out.  Which was a weird aside.

Andrew:         I have read, yeah, I was gonna say I have read the first amended complaint in this case.  This is a hearing on the motion to dismiss that first amended complaint, and those allegations are not in that complaint! 

Morgan:         No! 

Andrew:         That seems like not a great use of your time as a lawyer.

Morgan:         No, it’s not!  This is exactly why I have no choice but to stan one of the attorneys for the government, Mark Aronchick, who called Rudy out and just said “you’re making despicable claims in a court of law.”  He said “this is disgraceful,” and he even made the claim “I don’t think Mr. Giuliani has read or even understands these past cases that have been coming down in Pennsylvania.”

Thomas:         [Laughs]

Morgan:         Including from the judge who’s presiding to which, you know, Rudy was like “Oh my goodness!  How dare you?” and other people were kinda saying “well, I think Aronchick is- which he had a terrible audio connection, I wish he wouldn’t have because he was tearing Rudy apart.

Andrew:         [Laughs]

Morgan:         Rudy was making theses claims that “oh, these poll watchers, they couldn’t even see the ballots being counted with binoculars!”  He started saying the mob might be involved.  Just completely crazy.

Thomas:         I dunno, I think I would’ve pulled the connection trick if I was a judge. “Oh, I’m going through a tunnel, you’re [Pretend Static] cutting out Rudy!” 

Andrew:         [Laughs]

Thomas:         I’ll email “denied.” 

Morgan:         Yeah, and Aronchick did a very good thing, which I was waiting on somebody to say.  He was like “yeah, Giuliani’s claiming that the concrete injury to the Trump campaign,” because that’s essentially why they were asking to dismiss.  In order to survive a motion to dismiss for this both the campaign and these voters have to show how they, in particular, were injured.  Point A to point B by these defendants.  You know, just a general allegation of “uh, well, maybe they counted these votes and maybe they didn’t count these,” that’s not good enough.

Thomas:         Yeah, do we know how many ballots were cured in these counties that they’re complaining about?

Morgan:         Well that’s the thing!  They’re not even – they don’t even allege that these “provisional cured ballots” were even counted! 

Thomas:         Oh really?  [Laughs] Oh my god.

Morgan:         Yes!  It’s absolutely bonkers!

Thomas:         Okay.

Morgan:         And that’s why Rudy-

Thomas:         What are we doing here?  I don’t know how judges don’t lose their cool more.  I guess that’s why they’re judges.  By the way, sorry to get all political, [Laughs] but you see these clips of judges dressing down Black defendants, oh, they’re caught with marijuana or something, they do all these weird things.  Can we do that with this clown who is wasting everyone’s time trying to subvert democracy?  Can we dress him down a bit?  Can some judges issue some smack downs on this absolute creep weirdo claiming that the mob is involved?  Come on!

Morgan:         That’s what – I would have liked to see that more because honestly, if this had happened even in state court in Mississippi a judge would’ve been like hold up, I’m sorry but what the hell are you talking about?

Andrew:         [Laughs]

Thomas:         Yeah.

Morgan:         It’s like the “sir, this is a Wendy’s.”

Andrew:         [Laughs] Yeah.

Thomas:         [Laughs]

Morgan:         Sir, this is a hearing for a motion to dismiss?  You are not talking about why- then Rudy started saying, he did kind of get – I mean, not really, back on track, but after he was saying “we couldn’t even see through binoculars what was happening, these ballots could have come from Mickey Mouse, we don’t know” he did start saying “we have to get past this motion to dismiss because we just have so much evidence that there’s fraud all across the country.”

Andrew:         [Laughs]

Morgan:         I also did like this moment.  Towards the end when the judge was asking questions, he asked Rudy straight up, he said “well are you alleging fraud?  Because fraud is not alleged in your complaint.”  Rudy Giuliani says “yes, we are alleging fraud.”  Then the judge says “okay, well you’re aware that that has a heightened pleading standard,” which it does under Rule 9(b) of the Federal Rules of Civil Procedure, there are heightened standards that you have to pass through to allege how, you know, the fraud impacted you, how it occurred, different things like that.

Andrew:         Yeah.

Morgan:         You can’t just say “oh, there was fraud.”

Thomas:         [Laughs]

Andrew:         Let’s – I wanna just emphasize that a little bit.  Ordinarily, as we talk about how anybody can sue anybody, under Rule 8 of the Federal Rules of Civil Procedure, you can, it is called “notice pleading.”  That is when you see the phrase “on information and belief, Morgan Stringer broke into my house multiple times.”  I don’t have to prove that you did, I have to say I think you did and then we go to discovery to gather that information.  But when you plead fraud you must plead the particular fraudulent statements with particularity.  You can’t say “there was a fraud,” what kind of fraud?  “Well I don’t know when I get to discovery I’ll prove it.”

Thomas:         It just seemed fishy!  Your Honor, the whole thing seemed fishy!

Andrew:         Yeah.  That’s what – Morgan is 100% correct and accurately describing the law, but that’s the practical difference.  The law lets you say “yeah, you know, my back door, I’m pretty sure I closed it when I went to bed but then it was open and there were size 6 footprints.”  The law enables you to draw inferences when you are filing an ordinary tort lawsuit, but when you allege fraud, when you say somebody has lied to you and fraudulently induced you to do something or other claims that sound in someone making affirmative misrepresentations to you, the law requires you to tell us what those are.

Thomas:         [Laughs]

Andrew:         They have not!

Thomas:         By the way, as we’re recording, right now, this just in, Rudy Giuliani’s hair dye is melting off his face.

Andrew:         [Laughs]

Thomas:         I’m seeing pictures everywhere of this disgusting dye dripping, this guy is melting, he’s literally melting down, having a meltdown.

Morgan:         Yes.  And then Sidney Powell, our dear friend, Andrew.

Thomas:         Oh god.  [Laughing] I don’t think we can take it!  This is too much!  Too much bad law for one show.

Morgan:         She said Hugo Chavez rigged the vote.

Andrew:         Oh, sure!

Morgan:         Who has been dead since 2013.

Thomas:         [Laughs]

Andrew:         I lack words for this clown car.  So, what’s next in the litigation, Morgan?

Morgan:         Okay, so what’s next, the judge did not rule on the Motion to Dismiss, which I am very glad that the motion, I’m glad an attorney did speak up, I think it was the attorney for the DNC basically stood up and kind of gave the judge a little bit of a hard time there and pushed back, was like “times of the essence.”  This guy just got up here and said all kinds of crazy stuff, and going back to the fraud thing when he said yes, we’re alleging fraud and the judge pointed that out, then Rudy said “oh no, Your Honor, we’re not alleging fraud.”  Keep that in mind for when Rudy is holding these press conferences saying Hugo Chavez and Cuba and whatever, Q and everybody else rigged the vote or whatever.  Yeah, just keep that in mind. 

What’s next is essentially Rudy has filed, he eventually figured out how to file online. [Laughs]

Andrew:         [Laughs]

Morgan:         Big moment for him. 

Thomas:         [Laughing] He’s like “woah, we can do this on a computer?  Wow!”

Morgan:         He clearly did not know, and then also to tell you how bad of a lawyer he is, also at the end of the hearing, and you’ll love this, Thomas, Linda Kerns who was the attorney who was dismissed but the judge wanted her there to answer questions?  She withdrew from the case so the judge let her, but he was like “I want you here.”  She was asking about, you know, what is next in this case and things like that and the judge was saying this, and she just said, “well, Your Honor, is this all gonna be in your order?”  And he just responds “Yes, Ms. Kerns, but you should be writing it down anyway because that’s what lawyers do.  They write things down.”

Andrew:         [Laughs]

Thomas:         [Laughs]

Morgan:         Rudy did not understand that he had to file a motion to amend his complaint.  There was a really weird exchange about that where he was just saying “okay, you’re going to grant us our motion to amend” and the judge said “no, I’m not going to say whether I am or am not, you can file that motion.”

Thomas:         Oh my god!

Morgan:         Again, he was just not understanding basic things about procedure, to which I’m just like “was the mob that hard to take down?”

Andrew:         [Laughs]

Thomas:         America’s mayor, everybody!  America’s mayor. 

Andrew:         I guess I wanna conclude this segment, because the universe hates us, we will be getting the resolution to much of this pretty much right as your listening to this show because the courts granted Rudy Giuliani’s one day request for an extension of time.  Again, in any normal case would be routine.  This is moving at breakneck pace and the plaintiff has had three separate sets of lawyers withdraw, which is usually a bad thing.

Thomas:         Naw, I’m in such suspense to find out, though, whether or not they’re gonna rule that Chavez rigged the election or not!  Phew!

Andrew:         Well here’s what we’re waiting for.  We will get this at 5 pm today, literally within about an hour from after we finish this show, we will know what Donald Trump, through Rudy Giuliani, is actually asking the court to do.  I’m 100% serious about this, if they don’t file by 5 pm today in this court a motion for preliminary injunction than all of this is just theater.  The injunction is the request to have the court tell the canvassing board to do something, and right now they don’t have that. 

As Morgan has pointed out, all of these allegations about defects and cures and all of that, never mind that these were all litigated in the various state court proceedings, so when you see Trump is one and 29 in state court proceedings, those were part of the 29.  So, they want a second bite at the apple for something that state courts have already determined, and as of now they are not asking the court to do anything. 

Now, I think they will, and I think this is going to be a delightfully ridiculous motion for injunction.  That’s due Thursday, 5 pm, then opposition briefs by defendants are due Friday at 5 pm and Rudy Giuliani’s reply brief is due Saturday at noon.  When I say this litigation is moving at a breakneck pace, that’s the fastest I’ve ever seen for a briefing schedule.  24 hours then 16 hours to file your reply brief.  We’ll know, of course, after this show is recorded-

Thomas:         Ah.

Andrew:         -exactly what that looks like, but expect the combined brain power of Rudy Giuliani and Sidney Powell to give us something truly amazing to look forward to.

Thomas:         [Laughs]

Morgan:         Yeah, that was – I mean, I have seen, you can imagine, going to law school in Mississippi I’ve seen some bonkers hearings.

Andrew:         [Laughs]

Morgan:         Wild hearings, but this is truly one of the most bonkers ones I have ever seen, where an attorney is just up there making up random stuff and again, it’s just like “Sir, none of this is in your complaint, what are you doing?”  Yeah, I gotta give it up to Aronchick who called him out for it and I wish more attorneys would do that and I wish the judge would do it a little bit more, but I think he’s just kind of exasperated at this point.

Andrew:         Yeah.  In conclusion, Morgan, great day of being employed by The Offices of P. Andrew Torrez, or the greatest day in your employment by The Law Offices of P. Andrew Torrez?

Morgan:         I gotta say, I was enjoying it but then I was getting angry because I was like Rudy Giuliani’s making $20 grand a day, so that shows I need to ask Andrew for a raise.

Thomas:         Yeah, what are you making, like $15?  Yeah.  You gotta get up to the $20 grand level. 

Andrew:         [Laughs] Alright this interview is over!  We’re done!

Thomas:         [Laughs]

[1:04:52.4] [Patron Shout Outs]

T3BE Question

[1:06:28.4] [Segment Intro]

Thomas:         Now it’s time for T3BE, although I feel like any legal knowledge I had, Andrew, I’ve lost after listening to Rudy Giuliani try to be a lawyer!

Andrew:         [Laughs]

Thomas:         I’ve got nothing.

Andrew:         Oh man, these are oppressive conditions under which to have to think like an actual lawyer.

Thomas:         [Laughs]

Andrew:         But I have confidence in you.  Thomas: Police, who had probable cause to arrest a man for a series of armed robberies, obtained a warrant to arrest him.  At 6 a.m. they surreptitiously entered the man’s house and, with guns drawn, went to the man’s bedroom, where they awakened him.  Startled, the man asked “What’s going on?” and an officer replied, “We’ve got you now.”  [Laughs]

Thomas:         [Laughs]

Andrew:         Another officer immediately asked the man if he had committed a particular robbery, and the man said that he had.  The police then informed him that he was under arrest and ordered him to get dressed.  Charged with robbery, the man has moved to suppress the use of his statement as evidence.  What is the man’s best argument for granting his motion?

Thomas:         Huh.

Andrew:         A) The police did not give him the required Miranda warnings.

Thomas:         Oh, yeah.

Andrew:         B) The statement was not voluntary; C) He was not informed that he was under arrest until after he made the statement.

Thomas:         Hmm.

Andrew:         Or D) The police didn’t have a search warrant authorizing entry into the house.

Thomas:         Oh, this is tough!

Andrew:         Yeah!

Thomas:         I don’t know which one of those-

Andrew:         But a great one, I love this question.

Thomas:         Well I think – hold on, I’m gonna use what I learned in the last segment.  I think you just say “fraud” and then you’re like “it’s fraud,” then they’re like “what?” and then you win, right?  Oh, you’re not answering because we’re in test mode!  I get it, you’ll have to tell me next episode whether or not I got that right.  Okay, that’s my answer, fraud. 

Okay, so Miranda warning seems – that’s not nothing.  They have a warrant to arrest him, does a warrant to arrest someone allow you to just go into their house guns drawn?  Probably.  You ask him if he committed a robbery.  A, the police did not give him the required Miranda warnings.  I think that’s good, but also this is weird.  Can you just go and ask somebody like “hey, did you do it?” [Laughs] They already have probable cause; I assume you can’t just do that otherwise it would sort of get around the Miranda stuff all the time.  That would be a one weird trick to be like “well, we haven’t technically arrested him yet.”  Although, I don’t know, maybe it is.

B, the statement was not voluntary.  Got guns drawn?  Saying we’ve got you now, I mean that’s not a terrible argument.  This is gonna be hard.

C, he was not informed that he was under arrest until after he made the statement.  That I don’t think is a good one, I could be – who knows, this is a tough one, but I don’t think C.  So, I’m gonna go not C is so far all I have. 

D, the police did not have a search warrant authorizing entry into the house.   Umm, I know that when you arrest someone, I think you are then allowed to search the area of the arrest, you know, for weapons or something.  But if you have an arrest warrant can you just barge into someone’s home?  I think so, can’t you?  Police can do anything in this damn country, pretty sure you can.

This is tough, I think I’m going to eliminate C and D because they don’t seem like the best ones to me.  I’m gonna – psh, I’m grasping at all the straws I have.  Is it that they didn’t give him Miranda warnings or that the statement was not voluntary?  I’m struggling because Miranda seems good but then they didn’t technically arrest him [Groans] ‘cuz then the police then informed him that he was under arrest and ordered him to get dressed.  What is the Miranda – how does that exactly go?  Because I feel like police can do the thing where they try to talk to you, as Andrew has said, they can just be like “hey, how’s it going?  Hey you wanna tell us blah blah blah?”

Alright, this could be way off.  I think I’m gonna go not voluntary because they arrested him with guns drawn and woke him up.  He’s startled and they ask him what’s going on.  I’m not confident in this, I’m between A and B but I think I’m gonna go with B because it was not voluntary.  That’s all I’ve got; I haven’t been arrested and don’t remember the precise order of how everything has to happen with Miranda rights.  I dunno, B is my final answer, not confident in it at all.

Andrew:         Alright, and if you’d like to play along with Thomas you know how to do that.  Just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         And that’s our show!  Thanks for listening everybody, and nothing to worry about, Andrew says it’s all fine even though all of this nonsense is happening, it seems like it’s all fine.

Andrew:         Yeah!

Thomas:         ‘Cuz they aren’t competent and they lost by a lot.

Andrew:         They’re terrible!

Thomas:         And they lost by a lot.

Andrew:         Yeah, this would be scary if it were closer, but it’s not.

Thomas:         Alright well thanks for that.  I feel better.  Have a good weekend, everybody, see you on Tuesday,

[Show Outro]

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