Transcript of OA446: Republicans Obliterate the Constitution in Texas v. Pennsylvania

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 446.  I’m Thomas, that’s Mr. Fantastic, Andrew Torrez, how’re you doing sir?

Andrew:         [Laughs] Well?  I kinda feel boxed in here, but fantastic, Thomas!  How are you?

Thomas:         [Laughs] Yeah.  You know, Mr. Fantastic would be a great name for one of the boxers that I would have to face in Mike Tyson’s Punchout.

Andrew:         [Laughs]

Thomas:         From 1980-whatever, that Andrew was kind enough to guest on on my channel.  I’m going right into it, if you haven’t seen me already say this on social media, sorry.  I’ve got a Twitch channel where I’m playing old NES games and also various other things from time to time.  Andrew was kind enough to hop on last week after the Q&A.  I guess it was earlier this week, I dunno what time is.

Andrew:         [Laughs]

Thomas:         Anyway, played some Mike Tyson’s Punchout, it was amazing, and I think Mr. Fantastic would be your name.  You would take people out with amicus briefs, you know?  Or something.

Andrew:         [Laughs]

Thomas:         You have documents, the little shot between rounds would just be documents everywhere.  You’d just be, you know, all over your face, just throwin’ documents everywhere.  It’d be great!

Andrew:         My weakness would have to be, you know, easily distracted by minutia or something?

Thomas:         [Laughs]

Andrew:         I dunno.

Thomas:         Yeah, it would be like “look over there at that awful brief that Sidney Powell filed!”

Andrew:         [Laughs]

Thomas:         That’s when I’d give you the uppercut.

Andrew:         That’s when you hit me with the star punch, yeah. 

Thomas:         [Laughs]

Andrew:         Yeah, no, that was super, super fun and I love that as we are, you know, get close to the holidays and still in pandemic lockdown, this is a great way to recreate that experience-

Thomas:         Yeah.

Andrew:         Of like waiting for your older sibling to stop using the Nintendo so you can-

Thomas:         Yup.

Andrew:         You can play.

Thomas:         Well holiday time back in the day, though, that was serious Nintendo time.  That was – oh I didn’t even throw out the name of the channel or where to go.  So, go to if you wanna check that out, it’s a lot of fun and actually as you’re listening to this, I’m gonna be streaming – not NES, Portal 2 with my friend-

Andrew:         Oooh.

Thomas:         -Aaron Rabinowitz over for Philosophers in Space, we thought it would be a perfect fit because there was a lot of philosophy in that, so that’ll be fun.  Thanks for letting me do a plug, Andrew.

Andrew:         Yeah, of course!

Thomas:         Please come back any time on the channel, that was a ton of fun.  By the way, you got to interact with the listeners and they asked some questions, some law questions.  You can go hear that Q&A still or you could – sorry, you can go watch that stream still if you are an OA fan and you wanna hear Andrew talk about – we talked about how we met, we talked about a certain armature, there were – a lot of questions were asked.

Andrew:         Yeah!

Thomas:         It was fun.

Andrew:         Yeah, it was a little bit spicy too.

Thomas:         Alright, now that we have that out of the way, there’s an even more important announcement.

Andrew:         [Laughs]

Thomas:         You wanna go ahead and uuuuh, spill the beans?

Andrew:         Yeah, I am really, really excited about this.  After, thanks to your generosity, listeners, after we raised collectively more than an eighth of a million dollars for the Warnock and Ossoff campaigns, I reached out to those campaigns to say “hey, can you help us out?”  A bunch of other shows reached out to me, and the upshot of all that is we do have time to support Get Out The Vote efforts to do one more fundraiser, and that is going to be nine days from today – that is Sunday, December 20th.  Same timeframe.  4 pm Eastern, 1 pm Pacific, figure it out if you’re in the middle.  For three hours we are gonna have other podcasters, some podcasters that couldn’t quite make it last time, our friend AG over at Mueller She Wrote-

Thomas:         Yeah.

Andrew:         Plus a whole bunch of other special guests that we are busy lining up.  We are going to have support from the Warnock and Ossoff campaigns.  Now, let me temper your enthusiasm a tiny, tiny bit.  I really, really, really wanted to get in particular Reverend Warnock to come on our show on a Sunday.

Thomas:         [Laughs]

Andrew:         I was informed that if we raised $100 million dollars that that was not possible?

Thomas:         [Laughs]

Andrew:         So I kind of understand that.  Look, it is – I don’t wanna characterize what we might receive from the campaigns because we are still sort of pushing them-

Thomas:         We’re playin’ hardball, we’re in talks.

Andrew:         Yeah!

Thomas:         Smoke filled rooms.  I was gonna say, it’s actually a good argument against money being an influence.  We raised – and sidenote, I wanna hear from the listeners, do you think it sounds better to say an eighth of a million or $136,000?  Because I think $136,000 dollars sounds way higher, so that’s what I choose to say.  I like to go with that, but I’m curious, Andrew, I think, thinks an eighth of a million sounds more impressive.  I dunno, I’m not criticizing, I’m just saying I wonder which one sounds bigger.

Andrew:         That’s a great question.

Thomas:         But anyway, the point is there will always be these scandals where it’s like “oh, did you know Hillary took $3,000 dollars from this guy who works at an oil company?” or something, and you’re like yeah, okay.  Do you think that means Hillary personally called that person?  Because we raised $136,000 dollars and it didn’t do anything.  They’re not like ready to do our bidding in the Senate, you know?  [Laughs]

Andrew:         I so wish they were.

Thomas:         I know, yeah! [Laughs]

Andrew:         But no, we’re just trying to save democracy here, so we’re gonna take another swing at it.  Look, I know.  We asked and you guys walked up to the plate, took a huge swing.  In our segment alone we raised nearly $40,000 dollars.  We raised a huge chunk of that.  Not quite the biggest chunk, thanks Puzzle in a Thunderstorm, but you guys did amazing.  If you’re tapped out, we totally get it, but if you missed us the first time around or if you’ve got a little bit left to make a donation it will be split equally between the Ossoff and Warnock campaigns.  I love doing this because we have – this is our overhead; we are donating it.  100% of what we raise will go directly to the candidates.  You can’t do better than that, right? [Laughs]

Thomas:         [Laughs]

Andrew:         We’re not takin’ a cut out of any of this, we are donating again, Thomas and I both personally.

Thomas:         Yeah, it’s straight through ActBlue, it’s nothin’ to do with us.  Yeah.

Andrew:         But we will have-

Thomas:         We’re only interested in helping the candidates.

Andrew:         We’ll have some bonus stuff and some support from both campaigns.  I’m really, really excited, and again this is one of those – we’re talkin’ about it on the show, it’s really important to be all in for democracy and I wanted to take another swing if it was possible for us to make a difference-

Thomas:         Yeah.

Andrew:         -before the end of the campaign.  I have been told that it is, and they are very, very excited to have us.

Thomas:         Plus we’re gonna have so many cool people on to hang out with.

Andrew:         Yeah, yeah!

Thomas:         It’ll just be a great live show.

Andrew:         Special guests like you wouldn’t believe.

Thomas:         [Laughs]

Andrew:         [Laughs]

Thomas:         Alright, well we’ve gotta get onto the show!

Yodel Mountain – Final Disposition of the Flynn Case

[8:35.5] [Segment Intro]

Thomas:         This is a Yodel segment.  This is still part Yodel, right?  This is Flynn.  What’s the update in the Flynn?  Little more chance at yodeling here.

Andrew:         Yeah, this is a bittersweet moment for me, but I wanna go through and I wanna talk about the final disposition of Michael Flynn’s case.  A lot of you who follow the show, particularly if you follow us on social media, you know that earlier this week Judge Sullivan formerly dismissed the case out as moot in light of the full and unconditional pardon issued to Michael Flynn.  What you may not have known is that was a 42-page order from the bench.

Thomas:         Wow!

Andrew:         It was incredibly comprehensive and in it he says it was a close question, gives the analysis on the Rule 48(a) Motion to Dismiss.  In other words, the thing that we said-

Thomas:         Oh, on the original issue?

Andrew:         Yeah.

Thomas:         Okay.  I just don’t know how to close call on like whether the pardon mooted the thing, I’m just trying to clarify.

Andrew:         No, no, that’s an excellent clarification.  Yeah, the pardon stuff appears right around page 39.  It basically says that the presidential pardon power is expansive, it is a political power, it is (quote) “largely unqualified.”  Sullivan’s view of the President’s pardon power is roughly similar to my own.

Thomas:         Hmm.

Andrew:         You look at it and he says, you know, not quite this directly but that there would be some role of the judiciary taking a look at a pardon to make sure that the pardon is appropriate in this context.  I’ve given the example of, you know, if you’ve got a forged pardon [Laughing] for example.  There is some review. 

There’s also this section I wanna read you from page 42, in which Judge Sullivan says “Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to (quote) ‘any and all possible offenses’ that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation.” 

Then it says, “However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case.” Then says “that’s a valid pardon,” which it is.  It is clearly, however corruptly in intent within the President’s purview to be able to pardon Michael Flynn for the 18 U.S.C. § 1001 offense to which he was about to be sentenced by Judge Sullivan.

I think that language of “this is incredibly broad,” suggests in dicta that courts can take a look at the kind of pardons that Donald Trump is going to continue issuing between now and January 20th.  That’s the status with respect to pardons.  I think the significance is – we said this at the time that Opening Arguments was drafting its amicus brief.  Yeah, if what we have done is prevented the Department of Justice from covertly arranging corruptly to dismiss the case and force Donald Trump into the public act of saying “okay, this guy is guilty but I’m gonna pardon him anyway.”  Yeah, that is a victory for the rule of law.  That says the President cannot coopt the Attorney General to then lean on line prosecutors to dismiss a meritorious case.  That really does have value.

Thomas:         Yeah.

Andrew:         There’s a couple of other things that I continue to be really, really proud of.  One, with respect to the legal argument that I just can’t underline highly enough.  First thing that we can be proud of?  Our amicus brief was accepted.  A whole bunch of denials-

Thomas:         Yup.

Andrew:         -came through today.

Thomas:         Oh!

Andrew:         Not everything got rubberstamped in! [Laughs]

Thomas:         Oh, wow!

Andrew:         Ours was accepted.  We get a shoutout in the opinion on page 12, footnote 5.  Folks are already suggesting some OA merch that says-

Thomas:         [Laughs]

Andrew:         “Opening Arguments, we’re not just footnote 5”

Thomas:         [Laughs]

Andrew:         Which I like.  Yeah, I mean I think the other two major things that we did in our brief are we distinguished a case called U.S. v. Fokker Services B.V.  If you’ve been with us since the drafting of the Opening Arguments amicus brief, you will recall that this was the case that I was most concerned about.  The reason for that is it’s a D.C. Circuit opinion.  One of the things that smart district court judges tend to do is value pretty heavily not getting reversed by the court that immediately sits above them.

Thomas:         Hmm, yeah.

Andrew:         This case, Fokker, had some really bad language in it that suggested that judges, that district court judges like Judge Sullivan, did not have the discretion to review Rule 48(a) motions for anything other than the question of whether this was unduly burdensome to the criminal defendant that they could not otherwise look behind the merits of why the government wanted to drop the case.

We talked about that unduly burdensome part if the government repeatedly brings charges against somebody that it knows it can’t convict, goes all the way up to the edge of trial, drops the case, starts back over again, indicts him again.  You can imagine how that could be serially harassing of a criminal defendant. 

The question was, is that the only thing that you can do as a court under Rule 48(a)?  That is look to see “are we harassing the defendant?  No?  Does the defendant consent?  Then okay, court, get out.”  The Fokker case had some language that seemed to suggest that.

Thomas:         Hmm.

Andrew:         I wanted to make Judge Sullivan comfortable with the idea that even though the court directly sitting above him [Laughs] seemed to say X, that it didn’t really mean X.  The minute you took a look at the case you thought “oh, okay, yeah, I see what they’re saying but the law doesn’t constrain me in the way that this simple quotation might lead you to believe.” 

Here’s what I want you to do, I want you to compare page 21 of our brief with page 21 – that’s just a coincidence that it lines up that way.

Thomas:         Sure.

Andrew:         [Laughs] Of Judge Sullivan’s order.  Here’s what we said.  We said “Finally, the government also summarizes the dicta from Fokker as suggesting that this Court should not ‘second-guess’ the government’s decision to dismiss charges at this late date.  This reliance is misplaced; a careful evaluation of the D.C. Circuit’s summary of Rule 48(a) suggests that is not the actual rule the court would have adopted had it been carefully analyzing and actually applying Rule 48(a) in a case such as this.

Fokker’s discussion of Rule 48(a) begins with Rinaldi and correctly recognizes that the (and here we underlined it for emphasis) ‘principal’ object of Rule 48(a) is ‘to protect a defendant against prosecutorial harassment,’ that a federal court ‘reviews the prosecution’s motion primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment.’  So far, so good.  Unfortunately, (we said) the court in Fokker then somewhat aggressively summarizes those quotations as implying that the Supreme Court has determined that Rule 48(a) gives ‘no power to a district court to deny a prosecutor’s motion’ which elides the distinction between a ‘primary’ or ‘principal’ on the one hand, and a sole or exclusive role on the other.  Neither Rinaldi nor any case in this Circuit stand for the latter.”  Rinaldi is the governing Supreme Court precedent.  That’s what we told Judge Sullivan.

Here’s what Judge Sullivan said in his opinion.  First, he quotes from Fokker, then he says “But Fokker does not address this Court’s authority to consider an unopposed Rule 48(a) motion; it involved a deferred prosecution agreement rather than a guilty plea.  Fokker does not suggest that courts may only review opposed Rule 48(a) motions for prosecutorial harassment— the case simply quotes language from Rinaldi, stating that preventing harassment is the (and here in italicized) principal object of the rule.”  Then it quotes from Rinaldi at footnote 15, and our citations I read over them as well, were to Rinaldi at footnote 15. 

Thomas:         Oh yeah, baby!

Andrew:         That seems – yeah!

Thomas:         We’ve had an impact! 

Andrew:         [Laughs]

Thomas:         And I say “we” because I very much was involved in the drafting of this one.

Andrew:         Absolutely!

Thomas:         I mean, I’ll give you credit if he cites mine as well.

Andrew:         [Laughs] I appreciate that.

Thomas:         To be fair.

Andrew:         That’s how we distinguished Fokker, and the court very much seemed to adopt that position.  We also explained in plain language why we were doing that.  This is page 22 of our brief.  We said “Thus, while Rule 48(a) is primarily concerned with protecting a defendant from overzealous prosecutorial misconduct, it also reserves to the judiciary (that is to Judge Sullivan) the authority to protect the public from prosecutorial misconduct that we might term ‘under zealous’ —such as where a motion to dismiss is brought because the prosecutor ‘appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial.’

Thomas:         [Laughs]

Andrew:         Then we cited to a particular authority.  Well, on page 23, Sullivan explains, “The government argued that ‘the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’  This Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the ‘considered view of the Executive Branch as a whole’ could be contrary to the public interest.” 

Then they drop down to a footnote 7, and footnote 7 says “At oral argument during the en banc mandamus proceedings,” (and by the way that was two months after we submitted our amicus brief, so this was a question Judge Sullivan asked of the government) “the government took the remarkable position that even if, hypothetically, it was undisputed that the Attorney General of the United States accepted a bribe in exchange for dismissing a case, a district court would have no authority under Rule 48(a) to deny the government’s motion-

Thomas:         Wow.

Andrew:         -once the court ascertained that the government stood by its decision to dismiss the case.”  Again, is it possible that Judge Sullivan could have come up with these arguments on his own-

Thomas:         No.

Andrew:         -in consultation with his clerks?  100%.

Thomas:         [Laughs] I’m here to say it’s not possible!

Andrew:         Could, absolutely could have.

Thomas:         Only the crack taint team with the van delivering the amicus brief are the only ones who could’ve saved the day.

Andrew:         But I feel good, I feel good.

Thomas:         For the nonlawyers listening, this was a victory lap, it just was a lawyer victory lap.

Andrew:         [Laughs]

Thomas:         Very erudite and made a good point.

Andrew:         Yeah.

Thomas:         Essentially, TLDR, we think Judge Sullivan listened to your brilliant brief and used the reasoning, right?

Andrew:         I think we made a difference, yeah!

Thomas:         That’s awesome.  Congratulations, you guys did such a good job.  That truly is amazing to see Opening Arguments cited in the official documents and stuff.

Andrew:         We’re in print, baby! [Laughs]

Thomas:         Yeah, yeah.  I was also thinking, I don’t know how many Yodel Mountain segments we have left, but you were saying this is like a bittersweet yodel? 

Andrew:         Yeah.

Thomas:         I was thinking, is there a bittersweet yodel?  [Laughing] Are there any sad yodel ballads?

Andrew:         [Laughs]

Thomas:         How’d you even do it?  I think yodeling is all party.

Andrew:         [Laughs] You could mix a yodel track with the sad piano from The Incredible Hulk.

Thomas:         Yeah.  Try to autotune it so it’s more minor sounding?  I don’t know how you would do it!

Andrew:         There you go.

Thomas:         Okay, crowdsourcing.

Andrew:         Major to minor yodel, there you go.

Thomas:         [Laughs] Is there any sad yodeling?  Or is it all just happy good times?  Alright.  [Laughs]

Andrew:         I hope “is there sad yodeling?” becomes the “are there serious ventriloquists?” of this podcast.

Thomas:         [Laughs]

Andrew:         There we go.

Texas v. Pennsylvania Overview

[22:24.3] [Segment Intro]

Thomas:         Oh boy!  Let’s talk about this Texas Lawsuit.

Andrew:         [Sighs]

Thomas:         It’s so hard, Andrew.  It’s so hard, because I’m old enough to remember a time when Barrack Obama signing a single executive order meant he hated the constitution, was a secret Muslim who was trying to destroy democracy.  The Republicans were so up in arms, they care about that Constitution, they’re crying over it, they just love that Constitution so much, Andrew.  Do you think this lawsuit is in line with their patriotic outward appearance?  That they love the Constitution and care about the rule of law and all that?

Andrew:         I want to breakdown this lawsuit on the main segment not because it has the slightest bit of merit, it does not.  In fact, as we are recording this at 3pm on Thursday the 10th the State of Pennsylvania will be submitting its opposition to the State of Texas’ Motion for Leave to File Bill of Complaint.  By the time this show airs the Supreme Court will have denied Motion for Leave.  It is not that this argument is meritorious, and people have been asking me about this.  The best analogy I came up with, again given my age, on Twitter was “yeah, no, this is the one meritorious lawsuit that the Trump campaign has.  They filed those first 63 terrible ones to lose.”

Thomas:         [Laughs]

Andrew:         Kinda like in Voltron where it’s like “first we gotta throw the lions at that, then-

Thomas:         Yeah.

Andrew:         It’s only in the last 30 seconds when you can form the blazing sword that just cuts through everything and you win.

Thomas:         [Laughs] I thought you were gonna make the comparison, it’s like The Lamb with Keanu Reeves where he mansplained-

Andrew:         [Laughs]

Thomas:         Mansplained the rope-a-dope for an hour to a girl who probably already knew about it but he didn’t bother to inquire.  But anyway, [Laughs] Yeah, the idea is you throw just so many terrible lawsuits at them that the Supreme Court justices, they get really tired, Andrew, and then they can’t.  They’re just “oh, I’m so tired, the next one is a yes.  I’m too tired.  [Laughing] Next lawsuit is just an automatic yes” and then they win.  That’s their strategy.

Andrew:         You know, we joke about that.  The rope-a-dope absolutely will not work in this Supreme Court, even this Supreme Court there is zero chance that they are gonna grant Motion for Leave for the State of Texas to file this Complaint.  I’m gonna talk about why it’s presented as an original – I’m gonna talk about all that stuff.  But to the extent that the rope-a-dope worked, there is some outrage fatigue.

Thomas:         By the way, this version would be robe-a-dope, I think.

Andrew:         [Laughs]

Thomas:         No, I’m just trying to think of-

Andrew:         I like it!

Thomas:         Alright.

Andrew:         There does seem to be some outrage fatigue because this is, as I called out on social media, this is lower case “t” treason.  It is not the official crime of Treason, it’s almost certainly the official crime of sedition, but I’m not sure sedition should be an official crime?

Thomas:         Hmm.

Andrew:         Here’s – when I say that this is treasonous, and people that advocate it are traitors to the Republic, I mean that in the political sense.  I mean what they want to do, what the State of Texas, Ken Paxton, Texas’ Attorney General – but notable not Texas’ Solicitor General who typically signs these sorts of things.

Thomas:         Oh, interesting.

Andrew:         What the Texas Attorney General and the Attorneys General of 17 states, all Republican states, states with Republican governors and Republican state legislatures, what that gang of people want to do is take the person who lost the 2020 election and find a way, no matter how the votes went, to keep that person in power.  When you want to take the loser of an election and have them stay in power you cannot claim to be a patriot; you cannot claim to love the Constitution; you cannot claim to love democracy.  What you love is Donald Trump.  What you love is authoritarianism, and it is – I’m as angry as I’ve ever been-

Thomas:         Oooh!

Andrew:         -reading this pleading.

Thomas:         I like you when you’re angry.

Andrew:         [Laughs] I do think that it is – there has been the kind of Voltron outrage fatigue, that all of these are so – each one is more galling than the last, literally, that we’re sort of out of emotional outrage.  This is the one you should be mad about.  This is the one that everybody who’s name is on this piece of paper or on the Motion to Intervene or on the Amicus Brief supporting this nonsense, you should live in infamy.  Our kids, our grandkids, should have to read about you as traitors to this country.

Thomas:         Yeah.

Andrew:         What is this case?

Thomas:         Let’s explain, yeah.  [Laughs]

Andrew:         Yeah, first let me explain what this case is not, because there were two filed at the same time that were both kind of high profile.  This is not Kelly, that was Pennsylvania congressman Mike Kelly, v. Pennsylvania which was a direct petition for certiorari.  That was the one that Ted Cruz-

Thomas:         Oh yeah.

Andrew:         -magnanimously said he would be happy to argue at the Supreme Court.  The Supreme Court denied cert in that case.  Well actually [Laughing] Here’s what they did.  That entire petition was wrapped up in – it was styled as a petition for emergency injunctive relief, which is what you need to do because you have a hostile ruling below and Pennsylvania has already certified its electors so it was “come in, give us emergency injunctive relief, and by the way if you don’t give us injunctive relief, in the alternative you should treat this as a petition for cert and you should grant cert and you should rule on the merits and you should give us a puppy-

Thomas:         [Laughs]

Andrew:         It was … it had a huge set of all of this relief in the alternative contained in the last paragraph of page 40 of the petition.  The White House, by and through what’s remaining of the last person with at (quote) “JD,” that’s connected to the White House-

Thomas:         Who’s not in the hospital fighting COVID.

Andrew:         Yeah.  [Laughs] Well, Jenna Ellis from the hospital with COVID.

Thomas:         Oh, okay.  You don’t wanna let a little illness get in the way of toppling democracy, Andrew.

Andrew:         No.

Thomas:         That would be weak. 

Andrew:         So Jenna Ellis got on Twitter to say “Ugh, the press is so badly misreporting this, they just denied request for injunctive relief, our cert petition is still pending.”  No!  No it isn’t, Jenna!

Thomas:         [Laughs]

Andrew:         When you file an omnibus package that requests relief and the Supreme Court denies that relief, it’s it!  It’s done.  It’s over, it’s ruled, you do not have a separate cert petition, you had a separate paragraph that said “by the way you should treat this as a cert petition.”  I suppose for clarity’s sake the Supreme Court in its one-line denial of injunctive relief – by the way garnering not even a howler monkey dissent.

Thomas:         Yeah.

Andrew:         Nobody wants to take this case.  They probably should have also said “to the extent that this request for injunctive relief is also a petition for certiorari, it is denied,” but they don’t have to!  And you know why they don’t have to?  Because you have to ask the Supreme Court to do stuff and there’s nothing left for you to ask the Supreme Court to do and the proof of that is – I’m gonna link the docket in the show notes.  Keep refreshing, Jenna, because it’s not gonna change!

Thomas:         [Laughs]

Andrew:         They’ve done everything that they are gonna do.  So not this case.  Instead, this is an interesting follow-up.  We did our live Q&A on Monday, if you’re on Patreon you can get the audio from that live Q&A.

Thomas:         Yeah.

Andrew:         If you show up live it’s open to everybody, but we were talking about jurisdiction stripping, we were talking about could Congress require Supreme Court decisions to be unanimous?  I mentioned that in Article 3, Section 2, Clause 2, the power of the judiciary is vested in Article 3 in a Supreme Court and such inferior courts as Congress may from time to time ordain and establish.  Then the federal judiciary is granted appellate jurisdiction subject to regulation by Congress. 

In other words, that’s how we can engage in jurisdiction stripping, say the Supreme Court just can’t hear certain kinds of cases; or in response to a listener question, I think – again, no precedent for this, but I think the plain language of the constitution makes it clear that Congress could pass a law that says “all Supreme Court decisions must be 9-0, must be unanimous.”  “Must be 8-1, supermajority.”  We could do all of that because their appellate jurisdiction is subject to regulation by Congress.

It leaves open the question of what’s in the Supreme Court’s original jurisdiction?  What’s in the Supreme Court’s original jurisdiction – that’s the Article 3, Section 2, Clause 2 – are disputes between the states. 

Thomas:         Hmm.

Andrew:         That makes sense.  Those cannot be regulated by Congress, there’s no where else you can go.  You can only go to the Supreme Court.  When the State of Texas sues the states of Pennsylvania, Georgia, Michigan and Wisconsin you go immediately to the Supreme Court to their original jurisdiction.  Now the Supreme Court still gets to decide whether they’re going to listen to your nonsense or not.

Thomas:         [Laughs]

Andrew:         They still get the right to decide whether to grant that motion for relief.  The reason we know this is that states don’t sue each other very often, but they do from time to time.  In 2019 Arizona sued California.  That case – I’m gonna link it in the show notes – is the exact same procedural posture as this case.  Now the underlying merits were way, waw different.  Arizona was challenging the way – you will appreciate this, Thomas.

Thomas:         Yeah, I don’t know what this is about.

Andrew:         The way California imposes taxes on foreign companies that do business within the state of California.

Thomas:         Why does Arizona care about that?

Andrew:         Because if you’re an Arizona business-

Thomas:         Oh.  Competitors?

Andrew:         -that does business in the state of California but are not registered as doing business in the state of California.  Say you sell stuff on the internet and a handful of buyers come from California.  Your typical procedure is not to register as a business authorized to do business in the state of California, you’re an Arizona company, whatever, let ‘em figure it out.  California in some instances has held that those businesses are effectively doing business in the state of California and imposes a tax-

Thomas:         Yeah.

Andrew:         -that is a flat $800 dollar tax on LLC’s, on limited liability companies-

Thomas:         Got – yeah, I know about this.

Andrew:         Yeah, and a floating tax on corporations.  You could see how Arizona might have an argument there.

Thomas:         Sure.

Andrew:         They said look, it’s potentially detrimental to Arizona based businesses that California wants to impose this tax on them, so therefore we are suing under the original jurisdiction of the Supreme Court to say we want you to take this up and invalidate California’s tax laws.  This was the 2019 lawsuit.  The Supreme Court, after receiving briefing on it, said no. 

Thomas:         Oh wow.

Andrew:         We’re not getting involved.  California taxes, California gets to decide.  Again, we just have to imply their reasoning, they said no without issuing an opinion.  There was of course a dissent.  A dissent penned by Clarence Thomas, joined by Samuel Alito.

Thomas:         Oh.

Andrew:         Which made the preposterous argument – this is going to be important in about five minutes, so put a pin in this one.  That made the preposterous argument that the Supreme Court does not have the discretion not to hear lawsuits between the states.

Thomas:         [Laughs]

Andrew:         The reason is – yeah.

Thomas:         That already sounds stupid!  I mean, how – wouldn’t that just mean that people could file countless lawsuits and then they’re just committed to hearing every single one and inevitably-

Andrew:         Correct.

Thomas:         Okay. 

Andrew:         Correct.  If the Supreme Court ever reverses itself on this then that would be the play.

Thomas:         And we will be nuisance lawsuit filers.

Andrew:         Yeah, well it’s gotta be filed on behalf of the state.

Thomas:         I will.  I’ll do it just all by myself on behalf, it’s my pleasure.

Andrew:         [Laughs]

Thomas:         I will do it, I’m gonna sue some of the Dakotas, however many there are, and sue them for being more than one of them.

Andrew:         [Laughs]

Thomas:         Because there should only be one.

Andrew:         I’m with you!

[36:53.8] [Commercial]


Andrew:         Here, and literally this is the extent of that argument, is that Thomas says “the Constitution establishes our original jurisdiction in mandatory terms.  Article 3 states that (quote) ‘in all cases in which a state shall be a party the Supreme Court shall (and that’s italicized) have original jurisdiction.’” (End of quote).  Literally his argument is just “shall” means we have to. 

There’s a super easy response to that, which is having original jurisdiction does not mean that the court does not have discretion over whether to hear a case.

Thomas:         Gosh.  Hey, he should go to law school.

Andrew:         Yeah, I think I’d be good at it.

Thomas:         Or he should listen to Opening Arguments so he could learn something about the law, this Clarence Thomas.  I’m just suggesting, maybe he’d be better at his job.

Andrew:         I would be happy to privately tutor-

Thomas:         And Sam Alito – oh, tutor them!  Yeah.  It’d be a real sitcom situation there! 

Andrew:         Yeah.  So, in 2019, the Supreme Court reaffirmed, although [Laughing] Thomas and Alito dissented and said they want to revisit the question of whether the Supreme Court’s jurisprudence over suits between the states is discretionary or mandatory.  You can see all the reasons why having it be mandatory would be unbelievably stupid, but nevertheless that’s what happened in 2019. 

Now, back to the (quote) “merits” of this lawsuit.  You asked exactly the right question with respect to Arizona v. California, which was why does Arizona care how California conducts its LLC taxes?  The answer in that case was, well, you could come up with a scenario in which an Arizona business, two different Arizona businesses both set up the exact same way, they both incidentally do business on the internet.  California decides they’re gonna tax one but not the other, could that differentially advantage two otherwise similarly situated businesses in Arizona?  Maybe.  It’s a little tenuous.  The Supreme Court was like “yeah, that’s not enough for us to take up this case.”  That’s the standard I want you to think about in the back of your mind.

Thomas:         Right.  Well, I just wanna ask quickly, it does seem like it could be unfair if it’s like – again, I don’t know if I have the details right, but if California’s like oh they’re taxing us, but if a foreign company comes in and does business, they don’t have to face the same pressure so competitive disadvantage.  Could an individual business in Arizona sue California over that and that might be a different story rather than the whole state?

Andrew:         Nope.

Thomas:         Okay.

Andrew:         If you were an individual business you would have to sue California in federal court in California in the ordinary course.

Thomas:         Right.  Yeah, I didn’t mean – I was just saying that would be where you might get some relief, not this one.

Andrew:         Oh, yeah yeah yeah.  Sorry. 

Thomas:         Yup.

Andrew:         I mean, yeah, but in terms of whether you could go straight to the Supreme Court-

Thomas:         Right.

Andrew:         It must be a suit between states, exactly.  Once again – sorry, now that I understand your question, [Laughs] You will provide the answer on the merits to this case. 

Thomas:         Oh, cool!

Andrew:         Which is the thesis of this lawsuit, we’re gonna talk about the counts, but the thesis of this lawsuit is that Pennsylvania, Georgia, Michigan, and Wisconsin screwed up how they conduct their elections. 

Thomas:         Oh, so they must have a bunch of evidence and, you know, exhibits, and …

Andrew:         Yeah, but they don’t and it’s all nonsense, but before we even get to that-

Thomas:         Okay.

Andrew:         You would ask the question “why does the State of Texas-

Thomas:         Why does Texas get to sue for that?  [Laughs] Yeah.

Andrew:         Yeah!  Exactly right.  Why do they have standing?  The answer is they 100% – they definitely, obviously, clearly, do not have standing to bring this lawsuit.

Thomas:         If anyone had standing it would be like the candidate suing in that State.  They’d be like “Pennsylvania screwed me, I’m gonna sue.”

Andrew:         Yup.  That is exactly right, and that is exactly where you would go for relief.  You would go to the specific states themselves and you would say “yeah, hi, I’m a Georgia voter, Georgia screwed up its elections, fix them.”  You know what the Trump campaign did in these states?  Georgia, Pennsylvania, Michigan, and Wisconsin?

Thomas:         [Laughs] They tried that.

Andrew:         They went!  Yeah!  They went to those states, they filed 63 separate lawsuits alleging some version of that.

Thomas:         Yeah!

Andrew:         The only relief they won was in Pennsylvania, which we’ve covered, which allowed them to move within sneezing distance.  That was it!  Their one victory was-

Thomas:         That’s like in baseball a batter goes one for 63 and the one you find out was like they swung, they accidentally missed the ball but it bounced off the catcher and then hit their bat and they ran and somebody dropped the ball.  They accidentally got some sort of hit, that’s the one.

Andrew:         Yeah, yeah.  That is exactly right.  The three counts that are raised are very, very clearly not the law.  That is – so count 1 is the electors clause.  Because again, think about what all of this means.  All of this means that the State of Texas is saying – the State of Texas is not saying it was unable to conduct its elections, or even that its presidential electors don’t count.  They do!  What they’re saying is the election has come out differently because these other states ran their elections differently. 

Even if that – this is what I what I wanna emphasize because it’s really, really important to understand from a legal perspective.  Even if that were true that isn’t something that the State of Texas has an interest in.  Texas voted for Donald Trump.  Its electors met two days ago and certified their results for Donald Trump.

Thomas:         End of story!

Andrew:         And by Monday the 14th, yeah, go ahead.

Thomas:         No, end of story!  That’s what they get to do.

Andrew:         Yeah!

Thomas:         Texas gets to do that, right?

Andrew:         Yes.  Exactly.

Thomas:         Congratulations Texas, you suck, but you did that, you’re done.

Andrew:         [Laughs] You did!  For example, the electors, count 1 the elector’s argument, ends with “electors appointed to electoral college” yes it uses that grammar, “in violation of the elector’s clause cannot cast constitutionally valid votes for the office of President.”  Texas has no standing to claim that.  Count 2 is equal protection, and they correctly state the law.  They say “the Equal Protection Clause prohibits the use of differential standards in the treatment and tabulation of ballots within a state.” 

Thomas:         [Scoffs]

Andrew:         [Laughing] Now, they then say that the actions set out above in Georgia, Michigan, Pennsylvania, and Wisconsin, violated the one-person, one-vote principle in defendant states Pennsylvania, Georgia, Michigan, and Wisconsin.  Entirely missing is why Texas cares, why they’re allowed to care.  Again, remember, the remedy is for voters in those states to prove it in those states.

Thomas:         Yeah.

Andrew:         They deliberately misquote the law in the third and final count, which is due process, which says “when election practices reach the point of patent and fundamental unfairness the integrity of the election itself violates substantive due process.”  That’s true … in the state.  Again, all of this is to say – and look, I’m not sure that what we have is the best system.

Thomas:         Yeah.

Andrew:         But what we have is a federal system in which even for national elections the administration of those elections are left up to each individual state.  That’s how Republicans want this, remember?  That way they can impose crazy voter restriction, voter ID laws, purge people from the voter rolls.  All of their suppression efforts are predicated on the fact that states get to run their own elections.  Now all of a sudden Texas gets to tell Georgia, Pennsylvania, Michigan, and Wisconsin how to run their elections.

Thomas:         Hm.

Andrew:         But it is more than that.  This is where we come around full circle to why should be so angry.  I just told you, this lawsuit is nonsense, it’s designed to try and backdoor your way into the Supreme Court, the Supreme Court is going to tell all of these participants to go clownhorn themselves.  This is also fundamentally undemocratic.

Thomas:         Yeah.

Andrew:         The relief that they want is not to stop the counting, is not to order recounts, is not to change the certification.  It is to remand – how the Supreme Court could do this I don’t even know – but to remand to those four states: Pennsylvania, Michigan, Wisconsin, Georgia, to the state legislatures of those four states, which are all four Republican, to have those State Legislatures issue a slate of electors.  In other words, to replace voting with having Republicans certify who the next President would be.

Thomas:         [Sighs]

Andrew:         Which, presumably, would be Donald Trump.  There is no other way in which you can read this complaint as saying “we’re done with democracy.  We’re done with elections.  We just want Republicans to pick who gets to rule.”

Thomas:         Wow.

Andrew:         I can’t – again, we know what happens when this situation is reversed, ‘cuz the situation was reversed in 2000.  [Laughing] I did a four-part series on it, it kicked off the show.  Democrats did not ask the Supreme Court to certify that Al Gore would be President.  They did not say “can we turn this over to a Democratic legislature somewhere to appoint some new electors?”  There was a much easier path, they could’ve done that in West Virginia.  The West Virginia Governor and State Legislature in 2000 was Democratic.  I know that seems weird now, but it was!  They could have engineered this scheme and said to the Supreme Court “yeah, democracy doesn’t matter anymore, we just want Democrats to start ginning up some votes for Al Gore so that he’s President and not George W. Bush.” 

Thomas:         I mean, granted it’s a whole different scenario when it came down to 500 votes and a BS thing that should have gone-

Andrew:         Yeah, yeah.

Thomas:         This is a little bit different, but yeah, I take your point.

Andrew:         But- right.

Thomas:         I thought you were gonna compare it to 2016, which is – I mean, it’s a little tough comparison, which is a lot of people did want to find some way to make Trump not be the President.  You know, would’ve saved at least 300,000 American lives probably, or more.  So, you know, could’ve been, maybe it was worth it.  Maybe the principle wasn’t worth all those lives, I don’t know, but still, the point is there weren’t a bunch of states where Democrats are in high positions of power that like officially tried to sue to have the Supreme Court overturn a democratic election.  That didn’t happen.

Andrew:         Yeah.  We have been in the opposite show, and in fact when – one of our most popular episodes.  Episode 23 in which we said you should not give money to Jill Stein’s recounts.  This is – this is not… we like to call out when there’s a thing that both sides do.  This is not a both sides.  I will tell you, go to page 40 of this motion and read, that’s the request for relief section.  Start at page 39 and paragraph E says, after enjoin all the states from certifying, paragraph E: “If any of the Defendant States have already appointed Presidential Electors to the Electoral College using the 2020 election results,” which they all have, “direct such State’s Legislatures to appoint a new set of Presidential Electors in a manner that does not violate the Electors Clause in the 14th Amendment or to appoint no Presidential Electors at all.”

Thomas:         Wow.  So you just don’t even get a vote.

Andrew:         Yeah.

Thomas:         Cool.

Andrew:         That is what the State of Texas, joined by 17 additional States, has asked the Supreme Court of the United States to do.  It is galling, appalling, profoundly undemocratic, and again, small-t treasonous, traitorous.  These are not people with whom we are dealing in good faith, they are people who would rather have an autocracy, a monarchy, a fundamentally undemocratic government.  There is no other way to spin this.  I’m gonna include the links in the show notes.  We’re running late in this segment so I can’t get through all of it, but yes.  Joined, in Amicus, by the States of Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.  All of those States had States Attorneys General that decided to sign on and go “yeah, this seems like a great idea to us.” 

The State of Arizona didn’t just file [Laughing] a brief.  Remember I told you to put ap in in that Arizona v. California decision?  They moved to intervene and they filed what is possibly the dumbest pleading I have ever seen?

Thomas:         Oh wow.

Andrew:         The most bizarre.  This is the most evil proceeding I have ever seen.  Arizona’s Motion to Join, keeping in mind, by the way, you know, a year ago is when the Supreme Court told them hey, we’re not listening to your lawsuit against California.

Thomas:         Also, Arizona went blue. 

Andrew:         Yeah.  I get it. 

Thomas:         Huh.

Andrew:         Arizona says “As a preliminary matter, it is the State of Arizona’s consistent position that this Court’s jurisdiction over actions between states is exclusive and nondiscretionary.”  That is “you have to take it.”  Then they cite to the case that they lost!  “See Arizona v. California, 140 S. Ct. 684, 684-685” in parenthesis “(Thomas, J., dissenting).”  Look, I get that not all of our listeners are lawyers, but when your citation is “see X Case,” parenthesis, “(dissent)”-

Thomas:         [Laughs]

Andrew:         That means that’s the side that lost!!  Yeah!

Thomas:         [Laughs]

Andrew:         Then they say “The State recognizes, however, that the Court’s current jurisprudence is that its jurisdiction over such matters is discretionary.”  Current?!  That was a year ago!!

Thomas:         Is that like saying because ACB. Amy Coney Barrett is in there it’s like we know that this is gonna be a different story?  Is that what they’re saying?

Andrew:         Yeah.  The only way – the charitable way – you can only read this in one of two ways.  Either it was assembled by a very, very clever monkey-

Thomas:         [Laughs]

Andrew:         Or saying, well, yeah, but [Laughing] that was 2019!  The entire landscape of the Supreme Court, everything’s up for grabs now!

Thomas:         Yeah, that’s pre- Marbury v. Madison.  Who knows what’s happening now that it’s been a year?

Andrew:         Yup.  It is terrible.  I did not get to go into the (quote) “merits” of this argument, which is the same repackaged stupid conspiracy theories over and over again.  I will tell you; I did some fun … (question mark) looking.

Thomas:         [Laughs]

Andrew:         One of the things that lawyers use when we are padding out citations is a signal.  You’ve seen us do this before.  If say the Supreme Court has the power of judicial review and then I have a citation that exactly says that – Marbury v. Madison, you just put the case name directly after the sentence.

Thomas:         Uh-huh.

Andrew:         That means that the holding of that case is the sentence that you just said.  It is as clear, black letter law, it is indisputable, it’s a correct holding.  Then you have lesser signals after that.  If I have a case in which it seems like it’s the holding but, you know, it’s arguable dicta then I would say See Marbury v. Madison.

Thomas:         “Arguably Dicta,” new patreon name.

Andrew:         [Laughs] It would be.  I would use the signal “See” S-E-E.  If it’s slightly more attenuated than that, if it’s clearly from dicta but it’s also a good – I would use the “See also” and presumably you use “See also” after you’ve established a stronger argument.  You’re like “yeah, yeah, this case clearly supports it and this one’s not bad.”

Thomas:         Is there a level of citation that’s like “please don’t read this.”  [Laughs]

Andrew:         Yes!  That level of citation is-

Thomas:         “I hope you don’t actually look into this citation that I’m giving.”

Andrew:         So, sort of. 

Thomas:         [Laughs]

Andrew:         That level, and it stands for something in Latin that I forgot 23 years ago.  It’s the letters “Cf.”  Capital C, lowercase f.  You use a “Cf.” cite when there’s something out there that sort of talks about the thing that you’re talking about, but neither supports nor opposes it.

Thomas:         Huh.

Andrew:         You use the signal of Cf. and it’s just a way of saying “look Judge, we looked through, there are lots of different cases.  You’re probably gonna find this case and it’s kind of weird but it definitely doesn’t oppose what we’re saying.”  By the way, when you find something that opposes what you say, you go the signals back the other way.  “But See” or “Contra.”  Cf. is kind of that in the middle “meh?”  You know, you might find X but it doesn’t weigh in either way.  That’s how I use Cf. in my briefs.

Thomas:         Yeah, me too.  Definitely.  Same thing.

Andrew:         This brief, in 40 pages, uses Cf. as a citation 20 times?

Thomas:         Wow!

Andrew:         Which is by far the largest I have ever seen in a density base.

Thomas:         I feel like I could just write anything I want, you know, given that I’m not a lawyer, and just make arguments that I think are right and I’ll just do Cf. for everything.

Andrew:         Yeah.

Thomas:         Whatever the case, just make up random-

Andrew:         Cf. Constitution Article One, Amendment One.  [Laughing] Yeah, exactly.

Thomas:         [Laughs]

Andrew:         It’s curiously written, I will say that, and that leads me to my last bit which I discovered only this morning, and that is as Donald Trump has now moved to intervene personally in this case, because of course he has.  You might recall Rudy Giuliani is decomposing and melting-

Thomas:         [Laughs]

Andrew:         -and dying of COVID.

Thomas:         I do remember that, yeah.

Andrew:         Jenna Ellis has COVID, is also 17 and appears not to understand the very basics of law.

Thomas:         Wait, talk about super spreader.  You know, Giuliani is spreading COVID from every orifice that a person could possibly spread it.  He’s an X-Files episode where’s – what’s the one where there’s like a fungus that infects your lungs and you like cough it out and there’s spores?  Every fluid that can come out of a person, Giuliani – and every gas that can come out of a person-

Andrew:         [Laughs]

Thomas:         It’s just, he couldn’t be a bigger super spreader of COVID, now that I think about it.

Andrew:         I really, really want an epidemiological paper on-

Thomas:         [Laughs]

Andrew:         -spreading COVID via farts.

Thomas:         He should be like the model!  Like you have, you know, anatomy models or whatever.  You should be like “here’s the super spreader archetype” it just has a diagram, “it comes out from this orifice, it comes from this orifice, it drips off of his head, it just comes out of everywhere!”

Andrew:         [Laughs]

Thomas:         [Laughs] All the med students are like [Shivers] oh my god!  Oh, we’ve never seen anything like it!

Andrew:         In any event, having liquidated Giuliani and Ellis and fired Sidney Powell, you wanna take a wild guess?  You might actually be able to come up with this name.

Thomas:         Wow.

Andrew:         It’s a little bit obscure.

Thomas:         I just don’t know.

Andrew:         It’s not Dershowitz-

Thomas:         G. Zachary Terwilliger!

Andrew:         G. Zachary Terwilliger’s a great guess, but no.

Thomas:         Okay.

Andrew:         The answer is John C. Eastman.  And if you’re thinking “that sounds kinda familiar but also obscure,” that’s exactly correct.

Thomas:         [Laughs]

Andrew:         He is the racist clownhorn law professor who wrote the Newsweek article that claimed that Kamala Harris was not eligible to be President.

Thomas:         Oh, cool.

Andrew:         Because she was born in Oakland, but you know, her complexion is darker than 50% of the American public.  He is an unapologetic, unabashed, racist.  Is 100% not qualified to teach law, has everything he has ever written from the legal community has been a joke.  He thinks the 14th Amendment does not enshrine birthright citizenship, even though that’s what it says.  His positions are not to be taken seriously.  He should not be teaching law.  I don’t know that he’s ever represented anybody before the Supreme Court, but you know, why not start now with the President of the United States in the-

Thomas:         Sure.

Andrew:         -one State that’s gonna overturn democracy as we know it.  But yeah, that’s the company our President keeps, the guy who thinks that, you know, the woman born in Oakland can’t be President because wink, wink.

Thomas:         It’s hard because he already had Rudy Giuliani.  [Laughs] Anybody you say, oh.  Yeah, I mean it’s bad, but it’s not worse than the melting racist that he already had. 

Andrew:         [Sighs]

Thomas:         It’s hard.

Andrew:         Fair, fair.

Thomas:         I know you tried to make a big point with that and yeah, he’s a racist, but sorry Andrew.  He’s already jumped the shark in terms of legal representation. 

Andrew:         Fair.  Alright, well, that’s my angry rant and your guide to Texas v. Pennsylvania.  Do not be led astray by, you know, dumb individual claims about X, Y, or Z, and let me just kinda summarize the bullet points.  The lawsuit is nonsense, there is zero chance that the Supreme Court is gonna take it up.  Even the howler monkey contingent is not gonna wanna touch this.  The arguments are beyond meritless.  If they were true, they’re the kind of things that you would bring up in those States.  Which, oh, by the way, they’ve brought up and lost 63 consecutive times and the “if true,” what’s super dangerous about it is if true the results they want are for us not to live in a democracy anymore.

Thomas:         Yeah, you know I know I’ve made some jokes, but this truly is an outrage.  These are States putting their names to a thing.  I mean this is almost like cessation in a way.

Andrew:         Yes.

Thomas:         It’s like we-

Andrew:         Yes!

Thomas:         I wonder if there’s a little overlap in the States.  Hmm.  I haven’t done any, haven’t looked at any maps, but I wonder if there’s any commonality in that.  But yeah, it’s saying we don’t like what the people have decided in this country.  We’re going – officially!  I mean, it’s one thing if you have people in comment threads or, you know, crappy personal- Rush Limbaugh’s or something.  You know, it’s bad, but it’s one thing if you have them saying we should cheat and steal this election even though the people decided otherwise.  It is just absolutely disappointing and disheartening and just insulting to the country to have this many A’s G, as Noah would say, signing onto something like this!  I mean, come on! 

Andrew:         Yeah, I couldn’t say it any better myself.

Thomas:         Fake, clownhorning, patriotic crocodile tears during Obama!  I mean it’s just so pathetic.  God. 

Andrew:         Yup, yup.

Thomas:         Alright, well, sorry.

Andrew:         [Sighs]

Thomas:         I wanted to channel a little bit of the anger that I know is somewhere in your brain but, you know, you’re so nice you still sound happy to me?  But I just wanted to [Laughs]

Andrew:         [Laughs] I appreciate that.  So, let’s name and shame these people on the way out.

Thomas:         Ooh, yeah.

Andrew:         We’re gonna miss being able to do my Section 230.  I had a really good medium dive-

Thomas:         Some day.

Andrew:         -on Section 230, we’re gonna get there.  So, special dishonorable mention to: Mark Brnovich, the Attorney General of Arizona that filed separately to intervene and took the idiotic position that a dissent is controlling law. 

Filing an amicus brief in support of overturning democracy are:  Eric Schmidt, Attorney General of Missouri; Steve Marshall, Attorney General of Alabama.

Thomas:         Hmm.

Andrew:         Leslie Rutledge, Attorney General of Arkansas; Ashley Moody, Attorney General of Florida; Doug Peterson, Attorney General of Nebraska; Wayne Stenehjem, Attorney General of North Dakota; Mike Hunter, Attorney General of Oklahoma; Curtis Hill, Attorney General of Indiana; Derek Schmidt, Attorney General of Kansas; Jeff Landry, Attorney General of Louisiana; Lynn Fitch, Attorney General of Mississippi; Tim Fox, Attorney General of Montana; Alan Wilson, Attorney General of South [Carolina]; [Jason] Ravnsborg, Attorney General of South Dakota; Herbert Slatery III, Attorney General of Tennessee; Sean Reyes, Attorney General of Utah; Patrick Morrisey, Attorney General of West Virginia.

These individuals are, again, small-t, traitors to the United States of America.  They are people that do not care about democracy and may their names forever live in infamy.  They should not be allowed to practice law.

Thomas:         Oh, yeah.

Andrew:         They should not be allowed to represent a State in the Union when they think the Union does not matter.

Thomas:         Well said, Andrew.

[1:06:11.7] [Patron Shout Outs]

T3BE Question

[1:08:47.8] [Segment Intro]

Thomas:         And now it’s time for T3BE.  I need too – you know what I need to do, Andrew?  I need to pork this T3BE streak.

Andrew:         [Laughs]

Thomas:         I’m on a bad streak and I need to pork it right now.

Andrew:         [Laughs] Well I’m feeling good about your chances of porking, here.

Thomas:         [Laughs] Commence porking

Andrew:         So here we go, Thomas.  A man was flipping through a manufacturers catalogue one day-

Thomas:         [Sighs]

Andrew:         -and noticed that the manufacturer produces deck chairs. Interested in a set of four for his house, the man called the manufacturer and spoke with the salesperson.  The parties orally agreed that the man would purchase four standard chairs for $600.  

Thomas:         Hmm, nice chairs.

Andrew:         The man said he might be able to come pick them up, and the salesperson replied that they would (quote) “make the necessary arrangements with a shipping company.” (End of quote).

Thomas:         Huh.

Andrew:         Nothing else regarding delivery was mentioned.  The manufacturer immediately began work on the chairs. The next day, the man found different chairs that he liked better from another source.

Thomas:         Ooh.  Jeez!

Andrew:         He sent an email to the manufacturer, stating the following: (quote) “I am no longer interested in purchasing the four chairs from you that we agreed upon yesterday. I am sorry for the inconvenience.”  (End of quote).

Thomas:         Hmm.

Andrew:         He signed his name at the bottom of the email.  While the manufacturer saw that he had an email from the man, the email was not opened before the chairs were completed.  

Thomas:         Huh.  Oh man.

Andrew:         The manufacturer arranged with a local shipping company to have the chairs shipped to the man’s billing address, delivered the chairs to the shipping company, and sent the man a new email stating that the chairs were on the way.  The email from the man was then read, but it was too late as the chairs had already been shipped.

Thomas:         Ah jeez.

Andrew:         Unfortunately-

Thomas:         Oh, dif-

Andrew:         – the chairs were damaged-

Thomas:         Boy, this nice deck chair transaction took a turn!

Andrew:         [Laughs]

Thomas:         There’s just one thing after the other.

Andrew:         When they were delivered to the man, he refused to pay for them.  The manufacturer brought a claim for breach of contract.

Thomas:         Oh man!

Andrew:         Who is likely to prevail? 

Thomas:         Well I’m gonna be mad if the only thing that matters is the last sentence, you know?  ‘Cuz they were damaged or something, and they made us read that five paragraph short story before this?

Andrew:         [Laughs]

Thomas:         But, okay, let’s see.

Andrew:         [Laughs] Well that will be one of the options, Thomas.

Thomas:         Yeah.

Andrew:         So A) The manufacturer, because the manufacturer relied on the man’s promise to buy the chairs.

Thomas:         Hmm.

Andrew:         B) The manufacturer, because the risk of loss had shifted to the man; C) The man, because there is no enforceable contract.

Thomas:         Ooh.

Andrew:         Or D) The man, because the chairs were damaged in transit.

Thomas:         Ah, man!  So we are on yet a third source of bar questions and I’m finding this one to be difficult.  We’ll see, maybe this is the real deal.  I need to pork my streak, here we go!  Hashtag #porkthestreak.  [Laughs] Yeah, this is weird.  So, if you leave out the last part where they’re damaged, I feel like – so there was a situation that was talked about in my one law class that I took which was about, like, when is the contract blah blah blah and it was about someone drops a letter of acceptance in the mail and it’s like the date of the – there’s a whole complicated thing about when in the mail, in the process of making a contract, when is it actually, you know, go into effect?  There’s this whole big thing, and then I know we later had a question on this that was kinda related to that, I think I might’ve gotten it wrong, but anyway, the point is I think this is kind of related to that in the setup, which is well if you send an email, therefore it’s got a date and all that, you can see when it was timestamped and all that, but they don’t read it.  There’s that interesting question there.  But I’m wondering if all of that is sidestepped by this thing being damaged.

So, setting aside the damage I feel like there would be some sort of relief for the fact that they agreed – that he agreed to buy them and then, you know, they started manufacturing, and then he sent the email, but I don’t really see much – you know, I don’t think the relief should be the entire contract or anything, but it doesn’t seem like any of the answers care about what level of relief.  It’s just saying “brought a claim for breach of contract.”  Okay. 

But the fact that the chairs are damaged while in the shipping company’s possession – I feel like that trumps everything.  Especially early in the question it said the salesperson replied that they would make the necessary arrangements with the shipping company.  I don’t really think that that could mean the man is liable for that.  I feel like he would be okay to refuse to pay, and then the manufacturing company would just have to sue the shipping company.  I feel like if I’m going with what’s reasonable it sounds like that’s reasonable.  I mean, it might have been a different story if the man arranged shipping or something else like that, but you know, the salesperson said they would do that.  I kind of feel like that trumps all of it, and so they made us read that – they’re just trying to take up our time so we don’t have as much time to answer later bar questions.  I see what they’re doing here.

So let’s go through the answers.  Who’s going to prevail in the manufacturer’s claim for breach of contract?  The manufacturer, because the manufacturer relied on the man’s promise to buy the chairs.  Yeah, I mean I think that would be true if not for the damagey thing.

B, the manufacturer because the risk of loss had shifted to the man.  Now that’s possible.  I actually think B is a possibility.  There may be some – who knows?  Maybe there’s some rule about when risk of loss – I think there is, actually.  Some rules about when risk of loss shifts.  I think it depends on if you’ve paid ahead of time or not?  Yeah, I dunno, there’s something there, I can’t remember.  But I feel like risk of loss shouldn’t have shifted to the man yet.  Pretty sure.  That’s just going based on instinct.

C, the man because there is no enforceable contract.  I mean, that could be a weird like that might trump the damagey thing because that would be the defense you would bring first?  Like oh, we never had a contract, so then sidestep all the damage thing?  That’s … C is a possibility.  These questions are hard!  Gosh, I’m never getting one right again, I feel like.

Or D, the man because the chairs were damaged in transit.  [Sighs] I’m – I kind a think it’s D.  [Groans] You know?  They arrange the shipping, ignore everything else, the chairs arrived damage.  You know, you don’t think the man could be like “I’m not paying for that, what are we doing here?”  You take it up with the shipping company you arranged.  I feel like it’s D!  I’m going with D, I don’t wanna – you know?  [Sighs] I don’t want to pick something else and have D be the right answer.  I will be more mad about that than if I pick D and then there’s some other weird technicality that makes like B or C. 

I think I’m between – gosh.  You know, actually I said B was a possibility, I don’t think risk of loss.  Huh, I don’t think it shifted.  Hmm, man.  There’s some weird stuff about that somewhere rattling around my brain, though.  Like something about once you ship – I dunno.  I’m gonna go between C and D, and I think it’s D, final answer.

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:         Alright, thanks so much for listening, that’s our show!  We love ya so much, we love our patrons, and we’ll see you next time.

[Show Outro]

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