Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 455. I’m Thomas, that’s Andrew, we’re Misters Fantastic. [Laughs] How’re you doing, sir?
Andrew: [Laughs] Fantastic & Fantastic, Attorneys at Law. There we go. [Laughs]
Thomas: You know, last episode was so happy, so joyous in the end. I wonder, you know, how could we even top it? And, you know, some people may be wondering well that means we’re gonna set up a depressing Tuesday episode, not so!
Andrew: [Laughing] No!
Thomas: We’ve got another, another great episode. We’ve already seen the title that Andrew wants and I’m going with. Donald Trump is going to prison in Georgia. I cannot wait to talk about this. So it’s good news for a whole week, everybody!
Rats Leaving a Sinking Administration
[2:00.0] [Segment Intro]
Thomas: Alright Andrew, but first we have a rats leaving sinking ship update. I don’t know if that-
Thomas: It’s not gonna be a long enough phase for me to make a whole segment about it, but for now it’s kind of a temporary segment. This week in this episode of “Rats Leaving Sinking Ship,” what’s the update?
Andrew: Yeah, this is a crazy story. I wanted to cover it on Friday, it broke right as we were recording, and I had the information then; we could’ve squeezed into last Friday’s show but last Friday’s show was already 70-plus minutes, so we’re doing it now. In one of the 63 election lawsuits filed by the President or his campaign or Sidney Powell, taken together, all of the amazing kraken litigation, attorney Jerome Marcus in the case of Donald J. Trump For President, Inc., (that is the Trump campaign) v. Philadelphia County Board of Elections filed a pleading on Thursday requesting for leave to withdraw as counsel for plaintiff, and the subject line here led yours truly to get Opening Arguments flagged as fake news on Twitter!
Andrew: [Laughs] I don’t know if you saw this.
Thomas: I did, yeah.
Andrew: Yeah, you know, plus one to Twitter for identifying that articles posted in The Federalist are clownhorning garbage and should be censured. Minus several million for not realizing we were making fun of that, but whatever! I took a screenshot and we moved forward and hopefully this does no permanent damage to the @OpenArgs Twitter account.
Here’s the story. Jerome Marcus, sole practitioner in Pennsylvania, represented the Trump campaign in a lawsuit filed on November 5th, that was Wednesday, the day after election day, seeking an injunction. Pennsylvania was one of the “Stop the Steal” States. Stop the count because there is fraud, and how do we know there’s fraud? Because I say there’s fraud!
That injunction was denied later that afternoon, but the allegation filed by Jerome Marcus and a group of lawyers from Porter Wright who have since also withdrawn from the case said that Philadelphia County is aware that they are required to permit Republican poll watchers, but (quote) this is paragraph 4 from the Complaint, “is intentionally refusing to allow any representatives and poll watchers for President Trump and the Republican Party” (end of quote) and that they are then (quote) “nonetheless continuing to count ballots without any observation by any representatives or poll watchers.” That was the argument: “There are no poll watchers in there in Philadelphia.”
That turned out to be 100% false. There was never a time in which any County, any level of resolution, in any State in the Union that we know of proceeded with counting ballots in connection with the 2020 presidential election with no observers from the other party. That. Did. Not. Happen. In fact, when we call Donald Trump one in 63 in litigation, the one order that they did win, the one case that they did win at the Pennsylvania Supreme Court completely contradicts this allegation!
Andrew: That was the case that I call the “we wanna sneeze on them” case.
Andrew: That has to do with, not Philadelphia County, but in another County poll watchers were being told to stand 25 feet back of the count, and the Pennsylvania Supreme Court said “sorry, you’ve gotta let ‘em within 6 feet to sneeze on you, we understand that that’s gross and they’re gonna give you COVID as well as nobody needs people standing that close to them.”
Andrew: But, you know-
Thomas: But they’re crybabies, so they get what they want.
Andrew: Again, I’m making fun of it, but I’m glad that they won that result because these are all bad faith, but if you have a good faith reason to believe that the fix is in you should be entitled to observe that under neutral conditions. So, great, I’m glad they won. We’ve been saying that we’re glad that they won that case since they won that case, but notice you can’t allege in the Pennsylvania Supreme Court that your poll watchers are being forced to stand 25 feet back and also simultaneously that they don’t exist.
Thomas: That they’re not there? [Laughs]
Andrew: Nevertheless that was what was happening. This was filed and then the Motion for Emergency Injunction was denied later that afternoon. The case – remember when you move for emergency relief and the injunction is denied you still have the case on the merits. Why there would be an underlying case on the merits here, I don’t know. At this point there’s no relief that you could get even if any of the allegations are true because the election’s over. Pennsylvania’s electoral votes have been awarded, Donald Trump is not gonna be President, there’s no – this would be ripe for the Philadelphia Board of Elections to file a Motion to Dismiss for Lack of Standing; but I suspect the County has just taken the position of “well, we’ll wait for you to dismiss this out, plaintiffs, because there’s nothing left.”
Instead of doing that, Jerome Marcus, Attorney for the Plaintiffs, filed a Motion for Leave to Withdraw from the Case. I’ve talked about this before as a duty of a lawyer. Even if you don’t get paid you can’t stop representing your client, particularly in litigation. You have to move to withdraw, and it’s at the discretion of the court, and that discretion is balanced against the harm to you but also the harm to your client.
Andrew: You know, it’s one of the things that attorneys have to take very seriously, and I come down hard on the scumbags and those who kind of come close to the line in our profession who take advantage of clients. I come down pretty solidly with, you know, with my people in terms of attorney retainers and this is the reason. You get in the middle of litigation and the client says “okay, well I’m not paying you anymore but I expect you to still do work,” and that can happen. You can still be required to do work. That is true even in a civil lawsuit, not just a criminal – you can imagine the conditions under which you would not want a three month trial and midway through the trial defense counsel in a quadruple homicide is like “I’m not getting paid so I’m out of here.” You can imagine in the interest of justice why you would not wanna permit that. Anyway, enough of that rabbit trail.
The grounds for leave filed by Jerome Marcus are (quote) “Inasmuch as the client has used the lawyer’s services to perpetrate a crime-
Andrew: -and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement.” That’s really, really strong language! [Laughs]
Thomas: [Laughing] Yeah!
Andrew: I have never accused even my most notorious client of having used my services to perpetrate a crime. That suggests in the past. Since this lawsuit this case is about alleging that there were no observers in Pennsylvania, you might be thinking “oh, so Jerome Marcus is conceding that that was without a factual basis, that in fact there were Republican poll watchers in Philadelphia.” That’s what I thought and I went to go out to Twitter to say you know, here it is, and then I did – I was like well… before I do that, before I break news, let me look up Jerome Marcus.
Andrew: Let me just see what I can find, because you know, the first thing I did was I saw the case number, which was 20-5533, I pulled up all the pleadings, I pulled up the Complaint, the Complaint’s only a page long. I’m like okay, I was ready to tell everybody what I just told you and I’m like “where else does – does Jerome Marcus represent the President in any other lawsuits?” What’s this guy’s deal? As it turns out, this guy’s deal is that he has been a consistent right wing Republican gadfly and wrote an article in the right wing garbage magazine The Federalist contemporaneously with having filed this Complaint called “I was in Philadelphia Watching Fraud Happen, Here’s How It Went Down.” [Laughs]
Andrew: I’m gonna read you the first paragraph and a half from this, I have to read it because I can’t link the article to you-
Andrew: Because when I said “interesting story and if you are thinking hey, Jerome Marcus, that name sounds familiar, it’s because he’s the clownhorn who wrote this,” and then I linked the article [Laughing] and then Twitter instantly slapped me with the Donald Trump.
Andrew: “This Tweet is being locked down because it is perpetuating right wing nonsense,” you know.
Thomas: Fair enough.
Andrew: Good on them for locking it down. [Laughs] Bad on them for not realizing I was criticizing it. Here’s what Jerome Marcus said on November 10th, 2020. Five days after filing this Complaint, which is the only thing to which this allegation can apply because this particular case went nowhere. He filed this motion for an emergency injunction, there was a hearing, it was denied, the case has gone nowhere since then.
He wrote, on the 10th of November, (quote) “Legacy Media” I guess that’s what, when you’re a lawyer and you’re trying to say “lame stream” but you don’t wanna sound like you’re 12? “Legacy Media are lying when they claim that all of President Trump’s allegations of voter fraud are baseless. I know because I argued a case on the President’s behalf in federal court in Philadelphia.” (That’s this case) “At issue was President Trump’s request for an order changing the way Pennsylvania absentee and mail in ballots are being reviewed at the Philadelphia Convention Center. CNN and others claim he lost, that’s false, he won. As I made that argument on behalf of the President’s campaign, I can tell you what really happened.”
Andrew: He says that he observed fraud going on under the nose of the supposed poll watchers. Then, at the hearing, and this was a hearing before U.S. District Judge Paul Diamond, Republican appointed by George W. Bush. You may have remembered, we made passing reference to this back when, you know, two dozen cases were being filed at a time, but the Judge said “are you telling us that nobody was allowed access to the ballot counters?” That’s when Marcus gave that amazing answer of “there’s a non-zero number of observers in the room.”
Thomas: [Laughs] Yeah.
Andrew: [Laughs] Which is just, like, everybody’s favorite parody of what a lawyer would say. Then that led Judge Diamond to say “I’m sorry, then, what’s your problem?”
Andrew: It was just fantastic. I cannot wait, this is a popcorn.gif moment?
Andrew: I cannot wait to see how this plays out. I love that right wing lunatic Jerome Marcus is accusing the President’s campaign of having used him to commit a crime! Not to try and commit a crime, he says “I was used to commit a crime,” which is a weird flex.
Thomas: Well how much do you buy that? That kind of takes the responsibility off of him, or it seems like he’s trying to.
Andrew: Yeah, but it also concedes that a crime took place.
Andrew: If I were about to be accused of a crime, and again, don’t take legal advice from a podcast, but the classic defense is “I didn’t commit the crime,” and “the crime never happened but if it did I certainly wasn’t the one who did it.”
Andrew: You always wanna preserve that first level sort of counterfactual of “no, no crime took place, but if a crime did take place I certainly wasn’t the one who committed it.” To say, to concede that a crime took place is, again, kind of weird. We will be watching this, I suspect this will probably develop sometime in between our taping and this airing, so I wanted to get it out, but it’s another great “Rats Leaving a Sinking Ship.” I will tell you, within minutes [Laughs] of this request to withdraw being filed Judge Diamond issued and order that says one, if he has not already done so, Jerome Marcus shall forthwith serve a copy of the motion on his client; and two, any interested party shall respond to the motion within the time provided by Local Rule 7.1(c), which is within two weeks. By January 21st, in other words, by the first full day of the Biden administration, those briefs will be circulated and oh! I have the case bookmarked on Pacer.
Andrew: We’ll be following, because – I think you were about to ask this question – the judge 100%, even if there is attorney/client privilege and even the Trump campaign decides to object and says “we think all of this is covered by attorney/client privilege and is not crime fraud, no crimes were discussed, a judge can always ask, can always inquire about privilege, can always demand to receive either documents or testimony in camera – that is, to the view only of the Court and not disclosed to the public. Yeah, Judge Diamond can say “okay Jerome, what’s your evidence that a crime was committed?” I suspect that this Judge will say that. I am lookin’ forward to this [Laughs] with as much excitement as I have for just about anything among these Trump cases.
Thomas: So, yeah, what level of crime are we talking about here? We’re always, I think the last four years have taught everybody listening-
Thomas: Where’s the crime? Can Trump pardon himself? That kind of thing. What rides on this?
Andrew: We don’t know.
Andrew: In terms of – that answer has to be an unambiguous federal crime for Trump to be able to pardon his way out of it.
Andrew: To be able to pardon his campaign as an entity, which, you know, again that would be literally unprecedented but, you know, Trump’ll probably do it.
Andrew: There are two things he would not be able to pardon. The first is if it is a State election law crime, that’s gonna transition really nicely into the B segment of the show.
Andrew: Or two, if it is a fraud upon the Court subject to the exclusive jurisdictions – exclusive jurisdiction of the U.S. District Court for the Eastern District of Pennsylvania.
Andrew: You cannot pardon somebody out of contempt. You can’t pardon somebody-
Andrew: -out of criminal sanctions imposed by the Court. Excuse me, out of civil sanctions imposed by the Court. If it’s a separate, ongoing criminal act then you can pardon that, but you can have ongoing civil sanctions until you come into compliance that are meant to restore order in the Courthouse that are non-pardonable and they continue to run.
Thomas: I’m wondering, as we just, as recording we’ve seen reports that Trump is thinking about pardoning himself, seems likely at this point, we’ll see, but a lot of it – there’s a lot to keep track of! [Laughs] You know? There’s a lot of crime-ing that needs pardoning. I know we’ve talked about the pardon power so much and this wasn’t meant to be a pardon power episode, but can Trump just do something that’s so broad it gets him out of anything at the federal level, no matter if he didn’t think of it specifically or whatever? Can he just say “I pardon Donald J. Trump for any possible crime committed at any time between such and such date” or something. You know, or does he need to be specific to the level of “yes, this criminal sanction I might get in a Circuit Court” or whatever. Does he have to go to that level of specificity?
Andrew: Here’s the answer: The broadest application of the pardon power would be something like “pardon any and all offenses then existing as of the date and time that this pardon is issued.” I believe that would stand up. There have been similarly broad pardons that cover everything. But, if there’s any ongoing offense – if there was a conspiracy in existence between Donald J. Trump and the Donald J. Trump for President Campaign-
Andrew: -to conceal information regarding efforts to overthrow the election. Those crimes continue and continue past the date of the pardon. I think when you talk about “of recent crimes” and “of crimes that Trump knows he’s committed,” because that’s the other thing, there may be crimes that Donald Trump-
Thomas: Oh, yeah, I’ll bet there’s a bu- that’s why I’m asking this. I’m sure there’s a ton that he doesn’t even know he’s committed.
Andrew: Right. And so long as he’s committed them with the assistance of intermediaries-
Andrew: Let’s be honest, and again this is gonna tie in nicely with the B segment, that’s how Donald Trump operates.
Thomas: Yeah. He doesn’t do anything himself.
Andrew: He never – yeah! He’s never the – never has dirty hands, never is the bag man, it’s always somebody else. Any ongoing activity by and among the conspirators becomes an offense against the United States not in being at the time of the existence of the pardon.
Andrew: You can’t prospectively say “I pardon myself for this offense and also I allow myself to cover it up indefinitely going into the future.”
Andrew: You can’t do that! Covering it up is a separate crime. I feel – and we should do an episode on this.
Thomas: I feel like – yeah, we should. Okay, I’ll save more questions I already have because we’ve gotta get to this perfect phone call!
Thomas: But it does seem like there’s gonna be a lot of, you know, obviously we already knew there’s gonna be a lot of pursuing [Laughs] charges against Trump and investigations, but it also sounds like there’ll be a lot of, like … possibly … arguments of like “oh well this pardon covers this” from Trump’s side or something and then the court’s gonna have to evaluate that. No, actually, there’s an ongoing conspiracy here, or whatever. Does that sound accurate? Like that battle will take place?
Andrew: That is exactly how I would summarize that, and so I would say, you know, as we are recording this Merrick Garland was formally announced by Joe Biden-
Andrew: -to be the next Attorney General and we haven’t had an opportunity to break down his-
Andrew: -introductory speech, but if you’re on our side – and who knows? Professor Eliason may be on our side now.
Andrew: You know, in the Opening Arguments/Eliason debate about DOJ criminal investigations of Donald Trump and his family and his cronies. I think there was an awful lot from which I would draw encouragement from that Garland announcement. We’ll be delving into all of that and I think the bottom line takeaway is folks who think that Trump will be able to pardon his way out of every possible federal investigation, I think are not thinking about how the pardon is going to interact with how Trump behaves.
Thomas: Hmm. Yeah.
Andrew: So, there we go!
Thomas: That’s interesting. Okay, well, definitely more to come on that, but we’ve gotta get to our last Yodel!
Thomas: We gotta get to another perfect phone call.
Yodel Mountain – Another Perfect Phone Call
[23:09.0] [Segment Intro]
Thomas: I listened to this whole thing and, you know, I avoided Trump for the last like year. He’s a known quantity to me and I avoided listening to him. Obviously we’ve covered him, but I just don’t wanna hear his horrible way of speaking. It actively makes you more stupid as you listen to him, and a good example of that is this phone call, but I listened to this because, you know, it’s a little easier to stomach after he’s lost and is just being a whiny crybaby about it. It’s a little bit, you know, psychologically it’s a little easier to listen to. I actually recommend – find this on YouTube and crank it up to like 1.5 speed because it is just Trump complaining about the – just trying to talk his way out of something that’s just not gonna happen and it is so fun to listen to. [Laughs] But Andrew, what’s going on with this perfect phone call?
Andrew: Let me amend that to add, and repeating the dumbest–
Andrew: Stupidest conspiracy theories. Trump’s filter is “oh, is this a thing that somebody said that might-
Andrew: -potentially help me? Okay, I believe that uncritically.
Thomas: Yeah! Well, and-
Thomas: He thinks – Trump thinks, because he was born with a silver spoon and all that stuff, he thinks that if he says something enough he makes reality change. What the phone call is, if you don’t wanna listen to it, it’ll be ten minutes of him saying “we won, we won Georgia, we won Georgia by a lot, okay?”
Andrew: By 400,000 votes!
Thomas: By 400,000 votes and there are bags of ballots – all this stuff for ten minutes, he’ll do his thing, and then when he finally stops talking for a second somebody in the room on the other side of the phone call will say “so Mr. Trump that’s just not accurate.” Then the minute he hears not “yes” then he’s like “well clearly I haven’t said it enough.” [Laughs]
Thomas: Alright hold on hold on.
Andrew: And we’ll say it again!
Thomas: And he’ll say the same stuff. “Okay, clearly I didn’t say things enough before” and he’ll say the same things for ten more minutes and you just repeat that for an hour! It’s remarkable. He is unable – it’s actually hard to ascertain if he knows he’s full of crap or not. It’s really hard to tell if he knows he’s full of crap or if he just thinks he has magical powers that if he says something enough it’ll become true. Ooph, what a listen!
Andrew: Yeah. [Laughs]
Andrew: It’s a hard listen, and I think – I’m really glad that you sort of provided that gloss because I think the fact that the President is so stupid and self-centered and single minded and simple minded put together, it just has caused a lot of legal commentators to sort of lump that under the, what we jokingly called the Donald Trump Jr. is too stupid to have committed election fraud.
Thomas: Right, right, right.
Andrew: I think, like – I was very, very surprised that the initial takeaway of this phone call was a lot of lawyers going like, yeah, it’s probably a crime but, you know, who knows? It’s an hour and a half and it’s kind of rambly. To me, this so cleanly violates the law.
Thomas: Ah! Yeah.
Andrew: I’m gonna prove that to you here. The arguments to the contrary, I think, illustrate just how much everybody has kind of given up because we’re in the last month and I wanna deconstruct that. Let me emphasize that. If you still have an Uncle Frank in your life [Laughs] and this show hasn’t already kinda convinced you that maybe you should-
Thomas: Cut that Uncle Frank outta your life!
Andrew: Cut that tie! If you’re still on good terms with Uncle Frank, ask him what his explanation is for this phone call. I promise you, I can tell you what you will get, because all of right wing media converges and amplifies the story.
Andrew: You’re gonna get “well, yeah, how could Brad Raffensperger release a settlement conversation?” and I’m gonna give the answer to that, because that’s such palpable nonsense that you don’t even need to be armed with it. Don’t give up. Don’t let Uncle Frank sidetrack you on that. Say “okay, assume that Brad Raffensperger committed a crime by releasing the tape and let’s lock him up. Okay. I still want to know the substance of the tape. We can play it right now. You will hear Donald Trump’s words asking the Georgia Secretary of State to enter an imaginary number on the returns and to, you know, say you recalculated it or whatever. Doesn’t that bother you?” Right?
There has been no answer from the Trump campaign and from any of the sycophants or whatever. Again, I get it, they’re busy fending off questions about, you know, how they engineered an armed insurrection in this country, so maybe encouraging a State to forge election results now seems quaint, but it shouldn’t seem quaint.
Let’s first talk about why this is a slam dunk, easy crime to prove under Georgia State law, and then I will deconstruct our friend, George Washington University Law professor Jonathan Turley writing just … clownhorn this if you want, but just a steaming load of bullshit in terms of why this was a privileged conversation and whatever.
Thomas: [Laughs] Yeah.
Andrew: We’ll get to that pile in a minute. I wanna start with the law. Again, this law could have been written and described as the crystal ball telling us that Donald Trump will be President Act of 1963 or whatever.
Andrew: It is Georgia Code 21-2-604. It says “a person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony… he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”
Let’s break down their three components to that statute. The first is did President Trump solicit, request, command, importune, or otherwise attempt to cause Brad Raffensperger to change the Georgia election results? Yes.
Andrew: I mean, I can read [Laughs] that is line number one. “Hey, I’m asking you – I dunno Brad, I got” – I have to find this, page 14. “I have to find 12,000 votes; and I have them times a lot, and therefore I won the State. That’s before we go to the next step which is in the process of right now. Over and over again, “so what are we gonna do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes.”
Thomas: Yeah, so the defense would be he believes that there’s fraud and what he’s actually saying during those phone calls – it’s a slight difference, but what he’s saying is the fact is, in Trump’s mind the fact is I won by 400,000, is, in his mind, the fact. Then he says “but you only need to correct 11,000 (number).” He says it wrong a bunch of times. He says 17,000 and then he says 11,000, but anyway, it’s 11-thousand-something-77, right? And he says “I only need that many” of the thing in his mind he’s taking as a given that he actually won by 400,000.
Andrew: Right. So now I want to ask you a question that is a leading question to which I know the answer.
Thomas: [Laughs] Sure.
Andrew: It is this: Suppose that Joe Biden were to call brad Raffensperger-
Andrew: -and say “I want you to – look. I’m looking really bad here by having only won Georgia by 11,779 votes. What I’d like you to do, Brad, is I’d like you to enter that I won Georgia by a million votes.” In other words, that would not change the result of the election in any way, but it would be asking Brad Raffensperger, in something that, again, would in zero ways change any legal right owing to any other person. But I just want you to enter in a number that you and I both know is fake. Do you think that is a felony under Georgia law?
Thomas: Well that sounds like yes, but that’s not really what I – analogous to what I was saying.
Andrew: No, no, no. But here’s why it is.
Andrew: In other words, if Joe Biden knows – suppose he says “what I want you to do,” Biden, got, I have the number here, 2,473,633 votes. Suppose he calls up and says “Brad? I just want you to change that first 2 to a 3. I want you to write in 3,473,633 votes.” Why? Eh, it’ll make my life a little easier and in the history books it won’t come down to this quarter of a percent.”
Thomas: You’ve already changed the construction so that he knows he’s getting him to do a BS thing, and I know – I’m not defending Trump, because-
Andrew: No no no no no no no! No, no. I’m glad you did. Even if it’s not the determinative over the mark, at the moment in which you ask – what I’m trying to get at in the hypothetical, and obviously the answer is yes that would be a felony under-
Thomas: Of course, yeah.
Andrew: -Georgia law, and that is Georgia Code 21-2-562, Fraudulent Entry. Let me read that law first, and then let me explain back to why I asked the question in that way that I think plainly covers Trump’s behavior. It says “Any person who willfully: Inserts or permits to be inserted any” and then I’m just gonna read this one out “false figure … or other fraudulent entry in any … tally … or other record or document authorized or required to be made … or preserved for any public purpose in connection with any election shall be guilty of a felony.”
In other words, padding the vote totals, inserting a number that you know to be wrong regardless of its effects falls under that felony, 21-2-562-
Andrew: Fraudulent entries. Donald Trump is asking in this call, Brad Raffensperger to insert a number they both agree to be false.
Thomas: Oh, no, so that’s where we’re disagreeing. I don’t disagree with you in reality, and I believe we should always treat Trump as though he knows what he’s doing and he’s committing a crime and he knows he’s full of crap, because he does and even if you could somehow make the argument that he doesn’t know that, I’m tired of that always being the way that he gets out of everything.
But, because that’s always the way he gets out of everything, what they would present – and again, I’m not endorsing this, but what I imagine the defense will be is “how much crime are you allowed to commit when you believe you’re not committing a crime?” For Trump that’s been quite a lot. You’ve been allowed to commit all kinds of crime when you allegedly don’t believe you actually are, so Trump’s defense will say he absolutely believed that – say, for example, 40,000 dead people voted for Biden and he’s trying to get Raffensperger or whatever, Ben Rothensberger who’s in charge of it, to strike those 40,000 dead people’s votes.
He doesn’t agree – so when you put it that way, like “oh, they’re trying to get him to do a number that they both believe isn’t right,” he would say “no, no, I’m just saying at the very minimum you need to get rid of these 40,000 dead people ballots” or something, for example.
Andrew: That may be an argument that folks make, but when you listen to the audio, and when you look at the transcript, that’s not the request that is being made. The request that’s being made is – because, look, the request is not postpone issuing a number, the request is tell them you recalculated.
Andrew: You’ve got to issue and actual number, but even if you believe – even if you think the President is true in his bluster, he believes that he won by 400,000 votes.
Andrew: In other words-
Thomas: So anything other than that he’s-
Andrew: Is a crime under 21-2-562!
Thomas: Yeah! [Laughs] That’s kinda interesting!
Andrew: It’s – you say “okay, fine.” Yeah, Trump is telling the truth, he believes all of this nonsense. Sure. Then you say, “then I want you to explain why the President says,” and I’m gonna read this word for word. Think about what he says.
Andrew: He says this multiple times. He says, this is page 6 after, there’s a little bit of a back and forth about, you know, Trump repeats the “Dominion took out the guts of voting machines and replaced them with-
Andrew: You know, the Crunch wrap Supreme Makers from Taco Bell. Just bat-guano crazy conspiracy theories, and then as everybody on the call, including Mark Meadows is like “we’re getting a little far field with nonsense here,” Trump says “Mark, I don’t know what’s the purpose. I won’t give Dominion a pass because we found too many bad things. But we don’t need Dominion or anything else. We have won this election in Georgia based on all of this. And there’s nothing wrong with saying that, Brad. I mean, you know, having the correct – the people of Georgia are angry. And these numbers are going to be repeated on Monday night. Along with others that we’re going to have by that time which are much more substantial even. And the people of Georgia are angry, the people of the country are angry. And there’s nothing wrong with saying, you know, um, that you’ve recalculated. Because of the 2,236 in absentee ballots. I mean, they’re all exact numbers that were done by accounting firms, law firms, etc. and even if you cut ‘em in half, cut ‘em in half and cut ‘em in half, again, it’s more votes than we need.”
Then, be more specific. There he’s saying okay, I think I’ve won by 400,000 because of the Dominion, I get it, I’m not gonna convince you of the Dominion, but you should get a lower number, because, you know, even if you just pick a lower number, say you recalculated, it’s still gonna be in the range of what I want. He’s much more specific about this later in the transcript and I want to read that section and put it together. Again, the exact same – you’ll hear him repeating the exact same claim, this is page 17.
“Trump: No, we do have a way” [Laughs] “but I don’t want to get into it. We found a way … excuse me, but we don’t need it because we’re only down 11,000 votes so we don’t even need it. I personally think they” (and this is back to Dominion) “are corrupt as hell. But we don’t need that. All we have to do Cleta is find 11,000-plus votes. So we don’t need that” (meaning Dominion).
Andrew: “I’m not looking to shake up the whole world. We won Georgia easily. We won by hundreds of thousands of votes. But if you go by basic simple numbers, we won it easily, easily. So we’re not giving Dominion pass on the record. We don’t need Dominion, because we have so many other votes that we don’t need to prove it any more than we already have.”
Then Kurt Hilbert jumps on and says “yeah, we want you to change it by 24,149 votes.” That’s a number, that 21,149, the way I would get at this would be in a deposition of either the President or his representatives to say what number did you want Brad Raffensperger to enter when you made this call?
Andrew: If the number is 21,149, by the President’s own words, he knew that that was a fictitious number. He says “yeah, look, I’ve won by 400,000. I get it, I’m not gonna convince you of the Dominion, but I’m not looking to mean a big deal. The real truth is, I won by 400,000 votes, at least, that’s the real truth, but we don’t need 400,000, we need less than,” and he says 2,000 but he means 20,000.
Andrew: “We need less than 2,000 votes, we need less than 20,000 votes.” Very, very clear and nobody has seemed to focus in on it’s not changing the results of the election that constitutes a fraud in Georgia. It’s telling somebody to put a number they know to be wrong on an official certification form, which I would put that in front of a jury.
Andrew: You wanna say he’s gonna make an argument? Let him! But I would certainly put it in front of a jury.
Thomas: No, that’s a great point. Yeah, that’s really interesting. I didn’t think about the fact that, like, if he’s just saying, you know, sure, the truth is winning by 400,000 but just put whatever. [Laughs] You know, put any number that makes me win. Even if you grant his conspiracy mind, and okay, he really believes this, he is trying to get them to just write any number that results in him winning.
Andrew: Absolutely. That’s my open and shut case. Are there other? Yeah. This clearly violates federal election laws, but the President is gonna pardon himself for that. Conspiracy, criminal solicitation to commit election fraud is a felony in Georgia, punishable by imprisonment not less than one, not more than three years. When I say Donald Trump is going to prison in Georgia, I mean if there are prosecutors in Georgia listening to this show, you’ve got a real good case, give us a call.
Thomas: I’m not trying to always be the Negatron-
Andrew: Yeah, no.
Thomas: But Georgia does have a Republican Governor, sooo I wonder. I mean-
Andrew: Could Brian Kemp, whom Donald Trump has been calling out as-
Andrew: -scum of the earth for the past 2 months? Could he pardon Donald Trump?
Andrew: Yes. Yes he could. And boy, I would love to see-
Andrew: It would be worth Donald Trump being pardoned for criminal offenses in Georgia to see Donald Trump have to crawl on his hands and knees because, you know, look, right now he’s the kingmaker and he’s been-
Andrew: You know, “I’m gonna come in.” You read that transcript, I mean I’m not gonna read it out to you but the “I came in and I endorsed Brian Kemp and what a dummy that was and how stupid I was.” It’s not the kind of person [Laughs] It’s not the kind of conversation I would wanna have on record for somebody that I later have to go to to seek a pardon. How about that?
Thomas: Yeah. Yeah, that’s interesting. I take your point that obviously – I’m not saying this will happen, but you know, it could be true that Kemp would pardon him and could use some BS rationale like just to try to prep for the next election. “Ah, these charges are trumped up, they’re totally fake, I’m not gonna let the radical left blah blah blahbitty blah, deep state arrest Trump for this so I’m pardoning him.” But yeah, that possibility is out there, but who knows.
Andrew: It certainly is out there! But I deliberately went down this path because if you were to ask me is it very, very weird that the day after this call came out the Assistant U.S. Attorney in Atlanta, in the Northern District of Georgia, Byung Jin Pak, resigned and that instead of his First Assistant, who is a career prosecutor, succeeding to the job, Donald Trump by personal written order from the White House moved in a guy named Bobby Christine from the Southern District of Georgia to become Acting U.S. Attorney for the Northern District-
Andrew: Yeah! That seems weird!
Andrew: You know, I don’t know what’s gonna happen federally. I know Trump is worried about this, and I would offer that as evidence. I have done my best to figure out who Bobby Christine is.
Thomas: [Laughs] Yeah, real G. Zachary Terwilliger situation on our hands!
Andrew: [Laughs] G. Zachary Terwillerger resigned; did you see that?
Thomas: Yeah, yeah.
Andrew: I wanted to do a whole episode on G. Zach, but-
Thomas: And we would have to call it “Yes, G. Zachary Terwilliger is real… and he resigned” is what we’d have to call it.
Andrew: [Laughs] I don’t know that much about Bobby other than he is, of course, a member of The Federalist Society.
Andrew: That was the first thing I checked. You know, this goes back to the question you asked in the A segment, which is, is Donald Trump orchestrating the conspiracy to try and cover up and in a blanket way make sure that he never faces a day of reckoning for any of his crimes? Absolutely! Is the act of doing that, itself, possibly going to lead him, you know, into that catch-22 situation? You know, maybe. If we were having that debate with Randall Eliason again, I would add, because I hadn’t quite formulated it at the time, the more robust, the more overlapping, grand juries’ potential state and criminal investigations going on at the same time, the more you expose where those strategies may be at odds with one another. Conspiracy to cover up at the federal level may involve ongoing crimes that are not subject to pardons in being, and the only way in which you find that out is by bringing him up on federal crimes. I feel even more strongly today than I did, you know, during our debate. Again, in fairness, we can have Randall back on. I suspect [Laughing] his mind may have been changed on a couple of things as well.
I wanna do very, very quickly. I was gonna fisk Turley’s stupid article, I’ll link it in the show notes. It’s just the same garbage again. It does not sufficiently show intent because, in any criminal case Trump would argue that he was restating the point and as part of a settlement negotiation that the election was not fair and that a review could easily flip, blah blah blah.
Thomas: Just kind of making the arguments I was making? [Laughs]
Andrew: Yeah, kind of making the arguments you were making.
Thomas: What an idiot!
Andrew: With the gloss on top of it that this was a settlement conversation.
Thomas: Oh, right, yeah.
Andrew: That’s what Uncle Frank is gonna say, and let’s go revisit that. 100% this was not a settlement conversation, and anybody who argues that it is is being disingenuous. Let’s start from the top, because this is the easiest way out. This is in fact the way that the D.C. Circuit has gotten out of a number of Trump related questions, and that is, as you know from taking the bar exam, the attorney/client privilege does not apply, it cannot be confidential settlement communications, if you have third parties present in the room.
Andrew: And, at the very beginning – this is, again, I don’t know that this is the best-
Thomas: [Laughs] This phone call starts, like “hey, uh, who are the third parties who are in the room that makes this definitely not a settlement call?”
Thomas: It’s pretty much that.
Andrew: It does! Let’s read what Mark Meadows says. Number one, Mark Meadows, okay, maybe he’s arguably an agent of the President? But he doesn’t say that. He says “this is Mark Meadows, the Chief of Staff.” He is not a representative of the Trump campaign-
Andrew: -and not a party to any settlement communications. Just so we are all aware. On the line is the Secretary of State, the person that they’re trying to extort, and two other individuals, Jordan and Mr. Germany with him. Mr. Germany is the attorney. You also have the attorneys that represent the President, Kurt and Alex and we never figure out who Alex is, he never says a word, and Cleta Mitchell. With respect to Cleta Mitchell, who has been identified as an attorney that represents the President, Mark Meadows asks, “who is not the attorney of record but has been involved – myself and then the president. So, Mr. President I’ll turn it over to you.”
Okay, if Mark Meadows is an agent of the President then you don’t have a third party involved here. But that depends on Cleta Mitchell being and attorney for the President. When this call came out, Cleta Mitchell’s then firm, Foley & Lardner LLP, issued a press release. That press release said the firm, Foley & Lardner, for which Cleta Mitchell was, at the time, a partner and holding herself out as, made a blanket determination in November that it would not be involved in any election litigation cases. That was when we drew attention to – and not just us, our friend Devin Stone, Legal Eagle, went after these big law firms that were representing the President in nonsense cases. Foley & Lardner said look, yeah, we don’t want people to start lumping us in with Jones Day, we’re not taking on any of these cases. Then a day later Cleta Mitchell resigned from Foley & Lardner.
If it is the case that Cleta Mitchell was under instructions by her partnership not to take on these cases then any – then she fraudulent – there are only two possibilities. Either there’s no engagement letter and no representation between the President of the United States and Cleta Mitchell, at which point she’s not a lawyer for the President, she’s just some random person on the call.
Thomas: [Laughs] Yeah.
Andrew: By the way, that’s what the Foley & Lardner press release says.
Andrew: It says you could be – the caveat – it was we’re not gonna take on any election litigation, but if you want to be involved you can be involved in election activities, like poll watching or volunteering, but not as a lawyer. That’s black letter what it says in the press release, not as a lawyer. The other option is that Cleta Mitchell signed a fraudulent engagement letter with the President. Held out either you’re hiring me as an individual; or said you’re hiring me and my firm, Foley & Lardner, without getting that cleared with Foley & Lardner.
You may have noticed our Twitter account has gone after Foley & Lardner pretty much once a day for the past week.
Andrew: We’re gonna continue to do that because we need to know, did they ever get a client engagement letter from Cleta Mitchell? If they did not, Cleta Mitchell can and should be disbarred for holding herself out as representing a party without – because she cannot. She’s a partner at a law firm. I can’t – I don’t have any other partners, but if I bring in ace associate Morgan Stringer a couple years from now, makes partner, it becomes Torrez & Stringer, which I would love to have happen, she’s amazing. I go and get a million-dollar client and I have ‘em sign a retainer letter and I’m like “well, why don’t you just make that to Andrew Torrez. I’m trying to cut Morgan out of the million bucks.” She can absolutely file a bar grievance and sue me personally and have my ass disbarred, and as well she should. Because once I – when I am a partner of the law firm, I have a fiduciary obligation to my other partners not to poach their clients.
Either Foley & Lardner is covering it up, which we need to know about; or Cleta Mitchell either represented the President not as a lawyer, not having an engagement letter and was consistent with the terms of the Foley & Lardner description, at which point none of this is privileged; or had a fraudulent engagement letter, at which point none of this is privileged. Even if there is – now suppose Foley & Lardner is lying, suppose there was. A, we would wanna know that, if Foley & Lardner was legitimately engaged in this case. Then, you would move to the next level of arguments which is you can’t offer to settle a lawsuit by criming.
Thomas: I was just going to – I’ve been waiting to say!
Thomas: Okay, let’s give ‘em all this. We’ll grant, okay, cool, confidential settlement, whatever. You’re allowed to commit crimes during a-
Andrew: Nope! No!
Thomas: Oh, no, you’re not allowed to commit crimes during that. Oh, okay. What do you know?
Andrew: Also, all of the restrictions on publishing the results of a confidential settlement agreement – of confidential settlement negotiations – are restrictions on using the contents of settlement negotiations – think of this as analogous to the hearsay exceptions.
Andrew: You can’t use prohibited hearsay for proving the truth of the statement, but you can use, even prohibited hearsay, for other purposes. For example, classic example is you want to prove that a witness was faking being deaf.
Andrew: You could say “and what did you say to the witness?” And I said, “yeah, I’m gonna, you know, whatever.” “And what did she say to you?” And the other side will say “Objection, that’s hearsay,” and you would say “Your Honor, we’re not seeking to admit the matter for the truth of the proposition, we’re seeking to prove that she heard my client ask the question.”
Andrew: And the judge would say “overruled, you may answer.” That’s the case here. I’ve actually filed and attached settlement communications to public documents before, to briefs submitted in court because I was not arguing – let me do a tiny bit of a side bar. The reason to prohibit settlement communications is people will often say things in settlement communication for purposes of compromise that are inconsistent with what they would later argue in litigation.
Thomas: Suppose someone says “hey, I’m planning to kidnap your wife unless you cow to my demands in this negotiation.” “What?! Oh! It’s a settlement conversation, you can’t!”
Andrew: Exactly right. There is the Trump-Raffensperger Perfect Phone Call #2.
Andrew: It’s clearly a crime! We got him. Hoist the banner.
Thomas: What are the odds that someone had two perfect phone calls?
Andrew: I know!
Thomas: That’s hard to do.
Andrew: [Laughs] It sure is!
[57:18.8] [Patron Shout Outs]
[1:08:31.6] [Segment Intro]
Thomas: And now it’s time for Thomas Doesn’t Pork the Streak – don’t worry, we won’t be playing that same music, I’ll change up the music – but Andrew, let’s find out what impossible way this answer I gave was wrong this time!
Andrew: [Laughs] Alright, so, Thomas, this was a contract question. The kind that, you know, you’re usually pretty good at.
Thomas: Mm-hmm. [Laughs] Yeah, usually.
Andrew: This was about a fireworks company, and they engage with a manufacturer of explosives for 100 fireworks. First 50 delivered on June 1st, second 50 delivered on July 1st. Unsaid in the question, but presumed background knowledge, probably necessary for July 4th.
Thomas: Right. Although in my neighborhood you need them every single day. Every night.
Andrew: Oh my god. Yeah, don’t get me started. June 1st, the manufacturer delivers 49 of the 50 fireworks and says “oh yeah, dude, the 50th got a little bit wet, I didn’t want to bring you something that sucked, I promise you’ll have the 50th in a day – within 2 days.” What can the fireworks company do at that point? A, B, C, D ran from A, the fireworks company can tell the manufacturer to go to hell. Is entitled to accept any of the 49 fireworks, meaning-
Thomas: They could accept zero, yeah.
Andrew: Reject the rest, and cancel the contract for all the remaining fireworks due on July 1st. Okay. B, they could accept any of the 49 and reject the rest, so they could reject all 50, but may not cancel the contract for the ones that are due on July 1st.
Thomas: Which is weird because it’s all one contract, right?
Andrew: We’re gonna talk about specifically what kind of contract this is when we get to the answers. C, the fireworks company must accept the 49 fireworks, but it may cancel the rest of the contract for the remaining fireworks due on July 1st; or D, the answer you picked, yeah, they’ve got to accept the 49 and you can’t cancel the rest of the contract. Your reasoning was back to classic Thomas common sense. Yeah, there was a little tiny thing that was wrong, they promised to fix it super-fast, seems weird that you would be able to legally retaliate against that. By the way, you made the correct distinction. Whenever the bar asks, you know, “entitled to,” they mean as a legal defense.
Thomas: Yeah yeah yeah.
Andrew: Yeah, no one’s gonna force you at gunpoint to abide by the contract, but the question is would they have a cause of action. I wanna skip the suspense. Thomas, you porked the streak, man!
Thomas: I porked the streak!! Oh, this calls for a whole new song! I better get working!
Thomas: We recorded this early, so of course I have some days to figure it out, but I need a new porking song!
Andrew: I – you absolutely do!
Thomas: Songs you can pork to! [Laughs]
Thomas: By Barry White or something.
Andrew: Barry White! Or you could play Marvin Gaye’s “Lets Get it On.”
Thomas: Oh yeah! Okay! Let’s go, future Thomas, hit it with “Songs you can Pork to!”
Thomas: Alright, wow. I wanna thank the academy-
Thomas: What happened is they did one of the ones that’s an obvious question is what happened. I didn’t do anything different.
Andrew: [Laughs] Here’s the way that it breaks down, and where it almost porked you.
Andrew: This is a contract for the sale of goods. That means it’s governed in the absence of anything to the contrary by the Uniform Commercial Code.
Thomas: Right, yeah.
Andrew: Under the Uniform Commercial Code, I want you to remember this because this may come up later. The general rule, and this is super effing stupid, the general rule is called the “perfect tender” rule.
Andrew: It means what it says, that the seller has to deliver-
Andrew: Perfect goods.
Thomas: Oooh, okay.
Andrew: If they fail to conform in any way the buyer can reject all of them-
Andrew: Accept all of them, or decide whatever.
Thomas: Oooh! So, this was trickier than I thought!
Andrew: Yup. However, this is a subset of contracts. This is an installment contract.
Andrew: That is, you have 50 coming at one time-
Andrew: -50 coming at another time. That’s a very standard sale of goods contract, so there’s an ongoing relationship. In an ongoing relationship the UCC recognizes, alright, we’re not gonna say you can invalidate – because imagine this was a 20-year contract.
Andrew: A year in one arrives damp.
Andrew: And you get a billion.
Andrew: It’s a ball bearing, and one is dented. Under the perfect tender rule, if you order a billion ball bearings and one is dented you can be like “nah, not taking any of these.”
Andrew: You brought me a dented ball bearing; all of these could suck in ways that I can’t detect. But the idea is in an installment contract you have an ongoing relationship, you have some expectation of ongoing reliability, and so you can only reject an installment when the non-conformity substantially impairs the value of that installment-
Andrew: And cannot be cured. We’ve talked about cure before, that is fixing the problem.
Andrew: Getting that extra firework within two days in a contract that doesn’t otherwise specify seems like that cures the defect, and it doesn’t seem like the nonconformity of one fire- if it’s for a fireworks show the idea that you end a second early or the grand finale is 1% less spectacular doesn’t seem to be substantially impairing the value of the contract. In that situation if the defect is minor, if it doesn’t substantially impair the value of the contract and cannot be cured, then the buyer has no ability to cancel the contract. Then the common-sense rule that you described applies. Congratulations on porking the streak, Thomas!
Thomas: Wow. I, uh, phew! I can’t believe I porked it! I guess now there’s a new streak to not pork!
Andrew: There you go!
Thomas: A streak of one, going forward. Next time I’ve gotta reverse all this music. I wanna not pork.
Thomas: We’ve gotta get rid of the Barry White! [Laughs]
Thomas: Alright, well, I’m excited. I got one. I got one!
Thomas: Very lucky, and, you know, it was a little harder than I thought and that makes me worry this test that you’re doing is all impossible questions but I happened to, you know, luck my way into one here so we’ll see. But anyway, why don’t you hop in your pork machine and tell us- [Laughs]
Thomas: Who else porked my streak with me?
Alex: Hi! This is Alex Torrez and I just won my first invitational debate tournament, so I’m milking my 15 minutes of fame. But, for never ending fame and fortune, you have to win T3BE. This week, nobody on Twitter trusted Thomas to #porkthestreak, but he did, so our winner comes from Patreon, where a bunch of people guessed right but nobody for the correct reasons. I chose Katie H., who writes “I’m going with D, substantial performance, but man, I’m starting to think these questions really have become tougher.” Maybe they have, Katie, but there you have it! Everyone, congratulations Katie for being this week’s winner, and may your fame last longer than mine.
Thomas: And that’s our show. What a show it was! Oh, what a week. Feeling good, porked the streak, Trump’s going to prison in Georgia, we still won Georgia. Oh, it’s just so great, so thanks everybody and we’ll see you on Friday!
Andrew: We’ll never be this happy again! [Laughs]