Listen to the episode and read the show notes
Topics of Discussion:
- Breakin’ Down the Law – Kyle Rittenhouse Missing
- D.C. Statehood Bill
- Former President Trump’s Impeachment Brief
- T3BE Question
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 462. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I am fantastic, Thomas, how are you?
Thomas: Oh, I’m tired. I was up late last night.
Andrew: [Laughs]
Thomas: This is a real 2021 night. I was up late last night because I finally did laundry.
Andrew: [Laughs]
Thomas: That was … [Laughs] Turns out, when you don’t go anywhere you can – I don’t know the last time I did laundry, it might have been in the 90s, I don’t know.
Andrew: [Laughs]
Thomas: No, it’s not been that long.
Andrew: What is this REM shirt doing here?
Thomas: [Laughs] Yeah!
Andrew: [Sighs]
Thomas: Anyway, it was kind of funny, I was like man, I’m up really late all because my laundry wasn’t dry yet and I had to fold it. That’s my life. How’re you doing? [Laughs]
Andrew: [Laughs] There’s a lot of stuff going on, we’ve got a ton of things to cover and, you know, I had to push back to next week some of the breaking news from today because, you know, we’re sort of trying to prioritize which stories we can cover in what kind of depth.
Thomas: Yeah. Well, we have a fantastic couple episodes ahead.
Andrew: Oh man.
Thomas: I can’t even believe it. We’ve gotta find out what’s going on with Kyle Rittenhouse-
Andrew: Yup.
Thomas: He’s missing and plus all the – allegedly lied about where, all that stuff. D.C. Statehood, all that, and then Trump impeachment and that’s just today!
Andrew: Yup.
Thomas: I don’t know how we’re squeezing all that in, Andrew. [Laughs]
Andrew: [Laughs]
Thomas: But wait, there’s more! Next, on Tuesday, we’ve been looking forward to this for a long time, we’ve got Morgan Stringer, ace associate, over to explain GameStop and a lot more of a legal angle than merely a [Laughs] trying to tell what a short is for an hour.
Andrew: [Laughs]
Thomas: Can’t wait for that. All that is to say, so much stuff to talk about, we’d better get to it. Just first, real quickly, how is Aisle 45 this week? What went on there?
Andrew: Uh, Aisle 45 weas super ranty this week. I talk about the Biden commission, bipartisan commission on reforming the judiciary and the poison pill that Joe Biden – I think his chair, Bob Bauer, coauthored a book with Jack Goldsmith and so I think he was like “oh yeah, I know a Republican, I’ll bring on Jack Goldsmith,” and it’s just, it’s designed to make sure that the commission goes nowhere. Lots of fun if you enjoy me talking about jurisprudence and originalism and swearing for, like, most of the time, then-
Thomas: See that’s why I listen to this show.
Andrew: [Laughs]
Thomas: I think we’ve got a real John Fogerty situation here, Andrew. I think we need to sue Aisle 45 to stop them from-
Andrew: [Laughs]
Thomas: -ranting about originalism. [Laughs] It’s a real Credence Clearwater Revival situation.
Andrew: It could be. Yeah, I do sound very similar to the guy who, uh-
Thomas: Knowing Andrew, too, he would like work really hard on each side of the case against himself and do a full [Laughs]
Andrew: [Laughs]
Thomas: “Your Honor, what the other side is alleging is pure garbage,” and then like “objection!” and then do all that. It would be fun. Okay-
Andrew: Yeah, it would be great.
Thomas: [Laughs]
Andrew: And Thomas, talk to me about the latest SIO.
Thomas: Oh, I had to yell about filibusters for a minute.
Andrew: See?
Thomas: Yeah, that’s fair.
Andrew: [Laughs]
Thomas: But I stayed in my lane which is kinda trying to explain what they are but really just yelling, you know. I can’t believe – look. We all know, I know most people know this, but just in case they don’t, on Serious Inquiries Only I talked about the filibuster and I talked about my little secret plan for Kyrsten Sinima to not have to go back on her word, so tune in to that.
Andrew: [Sighs] Oh.
Thomas: But, Andrew, the filibuster.
Andrew: Yeah.
Thomas: I know we’ve covered it. It’s an accident! It shouldn’t even exist! It’s all because Aaron Burr was like “oh, we don’t need this one Senate rule that never seems to get used.” That’s it! That’s why there’s a filibuster! It’s not some founding fathers created it because oh, they wanted to, you know, protect the voice of the minority. It’s the Senate, it’s the blah blah blahbity blah. All that is garbage, they didn’t mean for it to exist!
Andrew: It’s not the cooling saucer of history or whatever-
Thomas: God.
Andrew: -the hell they use to describe it.
Thomas: They didn’t even know they accidentally created it for like 50 years! They didn’t even know until someone finally was like “wait a minute,” and then they used it in like 1830 or something. It’s garbage, it shouldn’t exist. [Sighs] Ugh.
Andrew: I have so many thoughts but, uh, they’re gonna have to be confined to SIO. So, everyone go check that out.
Thomas: Maybe we should do an Opening Arguments on it, there’s so much to talk about.
Andrew: [Laughs]
Thomas: Anyway, finally we had a very fun Stereo Q&A last night on that Stereo app, make sure you hop on for next week, it’s every week! Every Wednesday at 5 pm Pacific, 8 pm Eastern. It was a lot of fun, thanks for everybody who asked questions and we didn’t even get to a fraction of them, as usual. [Laughs]
Andrew: Yeah! But we do, you know, you get to ask those live, you get to hear your voice.
Thomas: Yeah.
Andrew: If we’re unmoderated again you’ll get to hear 12-year-old boys trolling us.
Thomas: It was fun, actually. I enjoyed it.
Andrew: Yeah.
Thomas: We got to hear from some 12-year-old British kid yelling at us for something, I don’t even know what. Good times. Anyway, let’s get to our show.
Breakin’ Down the Law – Kyle Rittenhouse Missing
[6:29.5] [Segment Intro]
Thomas: Okay, Andrew, domestic terrorist murderer Kyle Rittenhouse doesn’t feel to strongly that he needs to abide by the stipulations of his bail and all that, what’s going on there?
Andrew: Okay, so, this is amazing. And not in a good way.
Thomas: In like a white privilege way?
Andrew: In like a white privilege way that you can’t possibly imagine. Disclaimer, I have minimal experience in white collar criminal defense. I will tell you; I have never ever ever ever seen anything like this. Kyle Rittenhouse, released on $2 million dollars bail, right?
Thomas: Boy, how did that kid come up with all that money, Andrew?
Andrew: Uh, raised it online through a GoFundMe.
Thomas: Wow, yeah. People throw money at a terrorist murderer just to support him and what he does.
Andrew: Then when you are released to your own custody, particularly when you don’t live in the State in which you are required to report in connection with your crimes, the Court will occasionally try and send you mail.
Thomas: Hmm.
Andrew: They’ll say “hey, we’ve got a hearing coming up, and you’ve got to show up,” because that’s one of the conditions of the release. The whole point – I should say, there are really two points behind pretrial detention. One of them is to protect the public against violent offenders, and the other is to ensure that criminal defendants of exceptional means do not flee the jurisdiction and fail to show up for their hearing. You know, you can imagine if Bill Gates were indicted for murder-
Thomas: Mm-hmm.
Andrew: -a federal judge might be like “you know what? Um…
Thomas: Or when Jeff Epstein was arrested. You wouldn’t want to be like “yeah, you’re free to go out on bail.”
Andrew: Right.
Thomas: I know you have a private jet and an island.
Andrew: And a private island, and a private security force, and you can-
Thomas: Yeah.
Andrew: -you know, shoot down enemy aircraft if we tried to retrieve you.
Thomas: Probably has a satellite, yeah. [Laughs]
Andrew: Yeah, right. So those two things are coming into play here. They both seem to favor, you know, not releasing Kyle Rittenhouse, but in any event, Kyle Rittenhouse, released, and then the Court tried to send him mail and that was returned to sender.
Thomas: [Laughs] Oh.
Andrew: One of the things that you 100% definitely cannot do is lie about your address to the Court that has jurisdiction over you for your murder charge. The notice got sent back to the Court with a mark on it that said there was no forwarding address. So, as you might imagine, prosecutors in that case immediately – and we talked about this as this story was breaking yesterday on our Q&A – immediately sought a bench warrant for Rittenhouse’s arrest and asked the sitting judge to increase the bail amount by an additional $200,000 dollars. Now, why they picked that number when he’s already out on $2 million, I don’t know.
Thomas: Yeah.
Andrew: Now I need to tell you what the defense has done. They’ve admitted to perjury.
Thomas: Wow.
Andrew: Which is a weird defense strategy.
Thomas: Is that a good strategy? [Laughs]
Andrew: It’s, generally speaking, not considered good defense strategy to concede to perjury before the court.
Thomas: [Laughs]
Andrew: Remember, by the way, that Rittenhouse’s initial team consisted of the Lin Wood team. It was Lin Wood and John Pierce and another guy who got together-
Thomas: Andrew, how many lawyers are there in this country? Are there only seven?
Andrew: [Laughs]
Thomas: Am I – I guess there’s only 7 when it comes to right wing terrorist defendee insurrection type lawyers, maybe that’s what it is. [Laughs] When it comes to insurrection/terrorism/overthrowing the government there’s only a handful that have that specialty.
Andrew: [Sighs] There are hundreds of thousands, yeah. So, Kyle Rittenhouse fired Lin Wood and that little cartel as being too crazy for him.
Thomas: [Laughing] Wow!
Andrew: Which, you know, that’s a fun one. Now his remaining attorneys, which include Mark D. Richards and counsel from a separate firm who was hired to kind of take the burden off of Richards, an attorney by the name of Corey Chirafisi, they have conceded, okay, yeah, the Court asked us for Kyle Rittenhouse’s address and instead of actually giving them the address we gave them a fake address. Why did we give them a fake address? Because, and I’m gonna quote directly from their pleading in objection to the State’s motion to increase bond, this is paragraph number 4. (Quote) “Attorney Pierce was directly informed” – and that Attorney Pierce is the former counsel, John M. Pierce, the Lin Wood associate guy.
Thomas: Mm-hmm.
Andrew: When you hear “Attorney Pierce” I want you to think “somebody who has partnered with a certifiably crazy person.” Okay. “Attorney Pierce was directly informed by a high-ranking member of the Kenosha Police Department not to provide the address of the Rittenhouse Safe House because of numerous threats made against Kyle and his family. See attached Affidavit of John M. Pierce.” I pulled, and have read, the attached affidavit of John M. Pierce and this is the weirdest affidavit I have ever seen in my entire life, and here’s why. When you sign an affidavit and you sign it under penalty of perjury you are attesting to personal facts that are known to you. Okay?
Thomas: Okay.
Andrew: An affidavit is not subject to the Federal or State Rules of Evidence.
Thomas: Okay.
Andrew: What that means is-
Thomas: You can just say whatever. You just say what you think.
Andrew: Yeah.
Thomas: So, when people ask me about what happened when you porked the test, I’m gonna give my version of events, the was one thing and then Andrew porked it and now it’s impossible, that kind of thing.
Andrew: Right, right.
Thomas: Yeah.
Andrew: And you can say – you can give your lay opinion-
Thomas: I can exaggerate a little bit? [Laughs]
Andrew: Well, you can’t exaggerate-
Thomas: In all my years of practicing law I have never encountered questions so unfair.
Andrew: [Laughs] Yeah, you can’t lie. But look, what you can do is you can relay your feelings. You can say “in my opinion Andrew is trying to bring down my bar exam scores because he’s jealous.”
Thomas: Good, good I’m writing this down.
Andrew: Yeah.
Thomas: [Laughs]
Andrew: You can say “I overheard-
Thomas: Oooh!
Andrew: -Andrew after one of our recordings-
Thomas: [Laughs]
Andrew: -and Skype didn’t disconnect. I overheard Andrew talking to somebody who I believe to be his sister-in-law, and he cackled gleefully and said ‘ha ha ha I’ve really got that bastard Thomas now.’”
Thomas: Oh, I thought it was gonna be the black market T3BE test maker that like makes it impossible. [Laughs]
Andrew: Right, could be! Could be. Look, my point is, is that in an affidavit you testify as to the things that you know and believe.
Thomas: Right.
Andrew: It can be hearsay, it’s then up to the Court. You then argue whether that provision – because all an affidavit is, is essentially witness testimony when you’re not on the stand.
Thomas: Mm-hmm.
Andrew: Because you’re not at the trial stage yet. It’s like a direct testimony, it’s like being on direct on the stand. Imagine my surprise that paragraph 1 of the response and objection begins with “On information and belief, Kyle Rittenhouse and his family have received numerous death and other threats based on the events of August 25, 2020 in the City of Kenosha, Wisconsin. Some of these threats were delivered via social media within hours of the shootings in this case.” And when I turn to his former attorney’s – again, and attorney would know this – when I turn to that affidavit-
Thomas: Okay.
Andrew: -I see “I, John M. Pierce, being first duly sworn upon oath, depose and state the following.” Paragraph 5 – and the first four are just who he is.
Thomas: Gotcha.
Andrew: “I’m an attorney authorized to practice law; I was a lead member of Kyle Rittenhouse’s defense team until he fired me.”
Thomas: [Laughs] Got shit canned, yeah.
Andrew: “I have no professional affiliation,” you know.
Thomas: [Laughs]
Andrew: “I personally posted the bond for Rittenhouse.” Then we get into the actual facts, paragraph 5.
Thomas: I’m off to find some other terrorist to defend-
Andrew: Yes. [Laughs]
Thomas: -because I’ve been fired.
Andrew: “Through information and belief, I am aware that prior to November 20th, 2020, Kyle Rittenhouse, as well as his immediate family, had received numerous death threats from members of the general public. Because of these threats, arrangements were made for the Rittenhouse family to reside at a safe house in an unidentified location.”
Thomas: What?
Andrew: This is – yeah, right!
Thomas: Wait, I thought it was gonna be a police officer affidavit, told them to do it. I thought that’s what they said. Wasn’t that their excuse?
Andrew: That is their excuse. That is what, uh-
Thomas: But the affidavit is just like “I saw some bad posts after the murder that he did? So, therefore, I’m lying to the Court.” Is that it?
Andrew: It later contains an example of what you can do in an affidavit. It later contains the allegation that I led off with, paragraph 10, paragraph 9, “I spoke with a Kenosha police captain;” paragraph 10, “the Kenosha police captain told me that I (quote) ‘absolutely should not provide the address of the physical location of the Rittenhouse safe house on the form-
Thomas: Hmm.
Andrew: -but instead provide his home address in Antioch, Illinois. His home where his family has moved, and they no longer live.” Notice that that is hearsay. Pierce has no problem, and he shouldn’t, putting hearsay into an affidavit, so what the hell is this “through information and belief?” You plead on information and belief in a complaint when you don’t have the facts, but you expect to develop those facts. I hear rustling in my backyard at night, I look down the next day and I see a footprint and I really, really think that it’s yours, Thomas.
Thomas: Hmm.
Andrew: Because I know what your shoes look like and also there’s, you know, a Fleet Foxes CD wrapper.
Thomas: [Laughs]
Andrew: And I’m like okay.
Thomas: Audio cables left everywhere, yeah.
Andrew: Exactly. So, I plead “on information and belief Thomas Smith broke into my backyard on the night of January whatever.”
Thomas: [Laughs]
Andrew: That’s when you use “information and belief.” You cannot – I’ve never seen a person put this in an affidavit before! It’s not a thing that you do in an affidavit, which is supposed to be a recitation of the facts that you know.
Thomas: Huh.
Andrew: So, my supposition is this is a lawyer being overly cautious knowing that they are treading upon perjuring themselves.
Thomas: Yeah.
Andrew: Now, let me be very clear, and again, I do not have evidence that John M. Pierce has perjured himself in this affidavit, that is not what I’m saying, so when you sue us, and bring it on, baby, you know.
Thomas: [Laughs]
Andrew: Opening Arguments Media, LLC.
Thomas: Opening Arguments Media, LLC, yeah. A Maryland Limited Liability Corporation.
Andrew: Right. I am not accusing you of having perjured yourself in this affidavit. I am saying this is a bizarre and unusual affidavit and appears to be written by an attorney who has written and viewed hundreds, if not thousands, of affidavits in his career, and the immediate reason, and if you were to ask me why would somebody write their affidavit in such a way – in the passive voice in such a way as to disclaim personal knowledge of something that you’re supposed to testify as to is your firsthand knowledge, that would be to avoid later being brought up on charges of perjury. Now, are there other reasons? Yeah, sure. It could just be incompetence.
Thomas: Yeah.
Andrew: There are other bad reasons for this affidavit to be written this way, but there are no good ones.
Thomas: [Laughs]
Andrew: Also attached is the one – so, you’re asking yourself, is it possible that Rittenhouse received complaints? We have one email, this email was sent January 25th, 2021, which you may recognize as two months after attorneys for Kyle Rittenhouse falsified his-
Thomas: Yeah.
Andrew: -whereabouts to the Court. It is from – I’m actually gonna give the address here on the air, there’s no reason not to, it’s part of public record, mlucky99, the email address being glynch999@gmail.com, could that be a sock puppet? Could be. Might not be, we don’t know. That says “A Message for your Client” and the email says “Tell Mr. Rittenhouse that prison rape is a real thing and he will likely be attacked by several very large men with, well, large equipment, shortly after his conviction. They’ll offer him protection, he’ll fall for it, and he will be their B-word until he can’t provide a tight enough orifice for him anymore. Being a cocky little A-hole with a ‘Free as F’ shirt on will make him into a sad little man with a very large A-hole soon enough. Have fun with that trial.”
Thomas: Eli! [Laughs]
Andrew: Don’t that.
Thomas: No, that’s stupid.
Andrew: Right?
Thomas: But also, I didn’t hear anything in there about “I know where your safehouse is-
Andrew: Yeah!
Thomas: -so I hope you perjured yourself in a court of law.” I didn’t hear any of that.
Andrew: This is the only piece of evidence that is attached-
Thomas: Wow, really?
Andrew: -to their motion of how they were terrified for the life, and part of the indicia-
Thomas: That’s terrible.
Andrew: -that this is probably an email that they actually received is they received it a week and a half ago and it says “I can’t wait for your client to get raped in prison.” Now, look, nobody who thinks Kyle Rittenhouse deserves to go to prison should be sending letters like this, but no, this is not “I’m showing up at your house” and whatever.
Thomas: Yeah.
Andrew: This is I can’t wait for your client to be convicted and then raped in prison. That’s a gross thing to say, but absolutely does not support any of the inferences or arguments. There is zero evidence and I think we can assume-
Thomas: And that’s the best they could do.
Andrew: Yeah.
Thomas: That’s the best the Rittenhouse lawyers could do.
Andrew: This their objection, yeah.
Thomas: Wow. It’s almost like people on the left largely are like “well, we’ll let the law take care it. I shouldn’t say that-
Andrew: Yeah.
Thomas: It’s amazing that there wasn’t something better they could waive around as evidence, you know?
Andrew: Absolutely.
Thomas: Weird.
Andrew: There you go, important lesson, don’t send threatening emails to high profile scumbags because you may-
Thomas: I don’t think that person listens to our show, Andrew.
Andrew: Yeah, I sure hope not. But look, it’s always a terrible thing to do and here it is, it’s being attached to the defense’s objections.
Thomas: Yeah. Well, I mean that’s not in the top thousand reasons why it’s a terrible thing to do.
Andrew: Yeah, yeah.
Thomas: But okay, what’s going on here? So, they get to lie, this is terrible evidence. Is he actually missing? Is that all it was? That a letter bounced back? It wasn’t that he’s actually on the run or anything that we know of?
Andrew: As far as we know he is not on the run, but we have the admission that they deliberately did not provide the address of where Kyle Rittenhouse lives to the court of law with jurisdiction over Kyle Rittenhouse before whom he is supposed to stand trial. That’s definitely not a good thing.
Thomas: The white privilege is staggering.
Andrew: It is.
Thomas: Who will suffer what consequence for this, if anything? Lawyers?
Andrew: We need to see, yeah. There are several layers of potential consequences here. Number one, we need to see, and I could not find this by recording, what the new arrest warrant looks like.
Thomas: Okay.
Andrew: That new arrest warrant will mean that there will be a second bail hearing. That second bail hearing, I expect prosecutors to say-
Thomas: Hey, remember that time? [Laughs]
Andrew: When we released this kid and he lied about where he lives? Maybe let’s not do that again. So, second crack at the apple with respect to that. It is supported – that is separate from the request to increase the bail on the first arrest warrant. That’s a separate jack. Then the third issue is I would expect the court to sua sponte raise sanctions against Mark Richards and/or hold him in contempt in connection with admittedly perjuring himself before the court. I do not know of any judge that would just be like “oh, I get it-
Thomas: Water under the bridge, yeah.
Andrew: A cop told you to lie in my courtroom, so that’s fine, Mr. Richards.” No, that’s definitely not fine. There’s a side issue that you’re gonna see, it’s gonna be on Hannity and Tucker Carlson of “oh, they tried to get a stipulation that the address would be redacted and the prosecutor wouldn’t grant it, that’s why they had to do that.” That was the first attachment to all of this. That’s true but not relevant.
The DA said “Wisconsin has a proud history of open records and government transparency and I am reluctant to make an exception to the normal practices. Unless you can provide me with specific, tangible, an imminent threat or threats, that would justify secrecy, I am not willing to agree to redact your client’s address from the public record. Of course, you are certainly free to file a motion with the court and it will eventually be the court’s decision in any case, but I will oppose any such motion unless there is a specific, tangible, and imminent basis for it.” That’s how you practice law! [Laughs]
Thomas: Yeah. Well, not only that, they clearly have all kinds of Republican terrorist support money, so why not just give them your address but go stay somewhere else and pick up your mail?
Andrew: Well [Laughs] except that saying “I am living at X,” even if you are – even if X is a mail drop is still technically a violation of the terms of your release.
Thomas: Ah, yeah, but the whole thing is that a letter bounced back, that’s why this mattered.
Andrew: Right. They could have evaded that, but yes.
Thomas: Assuming he’s gonna actually show up for his trial and all that crap, you know?
Andrew: Right. Here’s the thing, as you hear Tucker Carlson and Sean Hannity spin this as “well, he was in fear for his life blah blah blah,” the lawyer never responded to this. The attorney, Corey Chirafisi, (I think I’m saying that correctly), never responded to this. Their response was rather than produce proof to the DA or independently move the Court, those are the two things you can do. You can come forward with specific instances of tangible and imminent threat to your client and put it before the Court, or you can separately move to seal the proceedings. They didn’t do either of those, they just decided “oh well, okay.”
Thomas: Yeah.
Andrew: “Rather than let the Court know-
Thomas: On your own!
Andrew: -we’re just going to lie.” That’s not how you practice law. As this unfolds, we will continue to watch but, again, you know, what began with a staggering display of white privilege, hopefully we will be able to circle back very quickly and the Wisconsin Courts will hold Mr. Rittenhouse on the second arrest warrant and we can avoid all of this.
Thomas: Wow.
Andrew: We’ll keep watching.
D.C. Statehood Bill
[26:56.0] [Segment Intro]
Thomas: Time for our next topic, hopefully a little more cheerful. [Laughs] Was this just a question from the Q&A that’s making it on the prime time here?
Andrew: Yeah.
Thomas: I think so.
Andrew: I thought it was great.
Thomas: Yeah, someone asked if we make D.C. a State, which hopefully we will here, how soon would they get the two Senators? Would they cash in right away? Would they have to stagger ‘em? What would the scenario be there?
Andrew: There are two specific answers to this question. One you’re gonna like and one you’re not gonna like, and the one you’re not gonna like is the one that controls, but let me walk you through all of it. It is possible to expedite this and get two new Democratic Senators seated right away.
Thomas: Wow.
Andrew: Congress’s power to admit new States into the Union comes from Article 4, Section 3, Clause 1 of the Constitution that says new States may be admitted by Congress into this Union, but no new State shall be formed or erected withing the jurisdiction of any other State. Okay, that makes sense.
Thomas: Yay.
Andrew: Or any State formed by the junction of two or more States or parts of States without the consent of the legislatures of the States concerned, as well as of the Congress. That’s it. That doesn’t say a whole lot, it says Congress can admit new States into the Union, and then gives restrictions if those are coming out of existing States, which it’s not. D.C. is a territory.
Thomas: Yeah.
Andrew: I looked then to past practice, March 11th 1959 is when the Senate passed the Hawaii Statehood Bill, our most recent State.
Thomas: Mm-hmm.
Andrew: Then the House approved the Bill the next day. It was signed into law by Dwight Eisenhower on March 18th, then went for a referendum in Hawaii on June 27th and then they voted yes, and then by Presidential Proclamation Hawaii became the 50th State on August 21st, 1959 and Senators were seated on August 24th. You know, that was five months beginning to end, that’s pretty quick.
Thomas: Nice.
Andrew: Then I looked at the Bill that Tom Carper, Senator from Delaware, introduced to make D.C. a State and it is a very comprehensive bill. It was fun for me to read, and it responds to the two arguments that are going to be raised that challenge D.C. Statehood, because yes, as soon as we make D.C. a State the Republicans will be in court to argue in front of their newly politicized judiciary that it’s invalid to make D.C. a State. These arguments are not good, but I’m gonna walk you through them, and I’m gonna show you how this Bill, it avoids the thorniest problem, and then the remaining problem is one that is kind of funny when you look at the folks who are making it.
Here’s what’s gonna happen. Under this Bill [Laughs] and just as a side note, if you’ve ever heard me talk about a “metes and bounds” description for real property and you want to read what metes and bounds looks like in actual law stuff, read this bill. It’s got like six pages, because what it does is it says okay, the existing District of Columbia shall become the new State of Washington D.C., and instead of standing for “District of Columbia” it will stand for “Douglas & Columbia,” over the abolitionist. In other words that it is no longer being defined as the Capital District.
Thomas: I think they’re missing an opportunity to just choose a really badass new name entirely, but okay, fine.
Andrew: Yeah, like the mongooses, that would be-
Thomas: Yeah, or the football team or whatever.
Andrew: [Laughs] Oh my gosh, if they became the State of Football Team?
Thomas: [Laughs] Or no, they do the same thing and it’s just “we’re The State.” [Laughs]
Andrew: That would be amazing. What it does is take the existing D.C. and says okay, you’re now a State, and then it carves out with these metes and bounds description, it’s like “and thereby proceeds Southwesterly along Pennsylvania Avenue-
Thomas: Yeah.
Andrew: -for, you know, 11.5 feet before turning 30 degrees.” What that does is, that complies with Article 1, Section 8, Clause 17 of the Constitution which holds that Congress shall have the power to exercise exclusive legislation in all cases whatsoever over such district not exceeding 10 square miles as may, by the cessation of particular States and the acceptance of Congress, become the Seat- these are all capital letters, although, you know, it’s the Constitution and it’s the 18th Century, so every other word are capital letters. “Become the Seat of the Government of the United States.”
In other words, the capital area, the Capitol building and various other stuff around that in which no one lives, now becomes the Seat of the Government of the United States and everything else, all the other neighborhoods in Washington D.C. become the State, and that gets you out of one of the two arguments that will be raised against D.C. Statehood.
The other argument I actually view as more of an opportunity than an argument against Statehood.
Thomas: Oh.
Andrew: And it is this. The 23rd Amendment gives D.C. three electoral votes. Here’s what it says: “The District constituting the Seat of the Government of the United States” again, reiterating that same term, “shall appoint in such manner as Congress may direct, a number of electors for President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State. They shall be in addition to those appointed by the States, but they shall be considered for the purposes of election of President and Vice President to be electors appointed by a State and they shall meet in the District and perform such duties as provided by the 12th Article of Amendment.”
In other words, D.C., we know this, gets three electoral votes, because it gets the number it would be entitled to if it were a State, in any event not exceeding the least populous State, Wyoming. If you excise all of the rest of the District of Columbia, you are now left with those three electoral votes being apportioned to the Seat of the Government.
Thomas: Ooh!
Andrew: The Capitol Building!
Thomas: Yeah.
Andrew: Let me point out-
Thomas: Who votes?
Andrew: -if anybody lives in that area-
Thomas: Ooh! Let’s have a dog live there.
Andrew: We could.
Thomas: Dog vote!
Andrew: But it gets better than that. Remember, the first sentence says that the District shall appoint (quote) “in such manner as Congress may direct.” (End of quote).
Thomas: Oh, dog mayor! [Laughs]
Andrew: Not only dog mayor, but no, again, it would be a question of first impression, obviously.
Thomas: Yeah.
Andrew: But my reading of the 23rd Amendment is that Congress could pass a law after D.C. Statehood that says “we also direct that the District constituting the Seat of the Government of the United States-
Thomas: Mm-hmm.
Andrew: That tiny little area that’s just the Capitol, “shall appoint its electors in accordance with the winner of the national popular vote total.” There’s no reason you can’t!
Thomas: Ahh! Okay, I like my idea of dog mayor better? They get a little office, a little fake dog office, and you just say this dog is the elector for D.C. Okay, I went a different direction, that’s fine. Your way is cool too, that’s fine.
Andrew: It would give you three more votes-
Thomas: Or like a little mouse. I’m just saying, there’s a lot we could do here, Andrew.
Andrew: That’s true, but this will give you three more votes for the national popular vote winner.
Thomas: Awesome!
Andrew: It would help restore – so not only would you get the Senators but until the 23rd Amendment is repealed – put a pin in that – you would get three more electoral votes.
Thomas: I like it!
Andrew: That Congress could allocate.
[35:28.3] [Commercial]
[37:08.5]
Andrew: Now, this bill, in order to deal with that problem, fast tracks and expedites a joint resolution to repeal the 23rd Amendment. It says it shall proceed through the Senate without being subject to a vote for cloture with [Laughs] actually with (quote) “with no time for debate” ‘cuz, you know, you don’t really need time to debate getting rid of it. I suspect – so this is the argument that kind of at first blush you would say alright, that doesn’t seem – it leaves kind of hanging out there the question of what to do with the 23rd Amendment, but now notice the kind of argument that right wingers would be forced to make in federal court about the 23rd Amendment. They would be forced to make an intent based argument.
Thomas: Ah.
Andrew: Something that goes the opposite of their literalist, textualist crap.
Thomas: Yeah! I’m reading this text and it’s pretty plain!
Andrew: Yeah, you’d just say “I’m reading it and it says the District constituting the Seat shall appoint-
Thomas: Yeah.
Andrew: -in such manner as Congress may direct.” It does not say how many people have to live in that District, and if that’s zero, yeah.
Thomas: It doesn’t say a dog can’t be an elector- oh, no that was my thing. It’s fine, we don’t have to do it.
Andrew: But no! There are no grounds. You would need an old school conservative or applying the ordinary model of jurisprudence to go right, but look, we all know the reason why the 23rd Amendment was passed, it was a compromise to give people living in D.C.-
Thomas: Yeah.
Andrew: -some say in the Presidency, despite the fact that, you know, they got no say over their own elected representatives. How many times in Court is the textualist, originalist response to that, you know, facts don’t care about your feelings.
Thomas: Yeah.
Andrew: Right? Okay, it was designed to do that, but you know what? Congress clearly anticipated that the size of D.C. might fluctuate, that’s why it says “the District constituting the Seat of the Government in the United States.”
Thomas: Oooh! [Laughs]
Andrew: That’s why it provides for a formula, it says you get the number of electoral votes equal to the number of Senators plus Representatives, and not three-
Thomas: [Sighs] Ah, damn Andrew’s a good lawyer!
Andrew: Yeah!
Thomas: I love it.
Andrew: All of those. I don’t think those are good reasons to strike down D.C. Statehood. Now, let’s come full circle. In this bill, this bill specifically provides upon ratification that the District of Columbia will then hold a special election.
Thomas: Okay. Can you remind me the status of the Bill? Was this in the House? In the Sen- where?
Andrew: This is a Senate Bill; this was introduced by-
Thomas: Dog mayor! [Laughs]
Andrew: By Tom Carper, the Senator from Delaware. You may have heard, I’ve inveighed against Chris Coons, the Senior Senator from Delaware before.
Thomas: Ah.
Andrew: Who, you know, sort of has these like needlessly centrist tendencies that come up from time to time. Tom Carper appears to be a good dude. He’s introduced this, it is still in committee at the moment. We will see when it clears committee and comes up to the Floor and how Democrats proceed, but again, this is one of the very first pieces of legislation and if it passes in its current form it says that immediately upon passage, not more than 30 days after receiving certification of the enactment of this act from the President, the Mayor of the District of Columbia shall issue a proclamation for the first elections for two Senators and one Representative in Congress from the State. Again, as I’ve pointed out before, you don’t need to do that, you could just accept, because D.C. has elected two shadow Senators, Paul Strauss and Mike Brown. By the way, this is what Alaska did for a very long time while Alaska was lobbying to become a State, and we don’t have time to go through it, but from a historical perspective I recommend reading up on that.
Thomas: Huh.
Andrew: Because the arguments against Alaska Statehood were very, very similar to the same political arguments we get right now.
Thomas: Really? Huh.
Andrew: Uh, racist southern Democrats were like “yeah, if we admit Alaska, we’re gonna have two more votes for civil rights legislation, so we’re not a big fan of that.”
Thomas: Well, what the hell happened?
Andrew: Yeah.
Thomas: Now look at it. Now look at it.
Andrew: Yup. The history over, the disputes over admitting Alaska as a State, very, very parallel to the disputes over admitting the District of Columbia. Really an interesting historical comparison if you’re a total geek like I am, which, you know, you’re listening to this show so you probably are. Oh, I should also add, Eleanor Holmes Norton has been the non-voting delegate representing Washington D.C. in the House of Representatives for the past thirty years. She has been reelected 15 times, and is – she really is the icon, the hero, of D.C. Statehood. She’s been working for that longer than anybody. You know, I certainly hope that if she wants to become the Senator, the Senior Senator from the District of Columbia from Washington D.C. the State, that she gets you know, kind of her first pick of whichever race.
Thomas: But doesn’t it kind of feel like we could just do – the Senators are appointed and then elections are scheduled after that, right?
Andrew: Yeah, you could. This Bill specifically says that the order of operations is it gets signed into law by the President and then the Mayor of D.C. has 30 days to call a special election, must include both a primary and a general election. You’re talking at least three months from the date of whenever this is signed into law. I think one of the questions to kind of wrap up the segment, I think the thought process was “well look, if we manage to get through D.C. Statehood how quickly can we seat those two Democratic Senators? Have a 52-50 Democratic majority and not need to worry about any of all this?” and the answer is 2022 at the earliest, and that would be if we had breakneck pace to expedite passage of this Bill, which, without blowing up the filibuster that’s not gonna happen.
Great question, I thought it was worth it for a deep dive into how D.C. would become a State and looking at the two sort of constitutional roadblocks and everything else. I love seeing this high on the Democratic agenda because, you know, I lived in D.C.! [Laughs] Those people really ought to be adjudged worthy of-
Thomas: Yeah.
Andrew: -governing themselves.
Thomas: Taxation without representation.
Andrew: Yup, yup. Most popular D.C. license plate.
Thomas: Yeah. Alright, well nice mini dive. Can we do – do we have time for our wildcard?
Andrew: I think so!
Former President Trump’s Impeachment Brief
[44:33.4]
Thomas: It’s not exactly a wildcard, but it’s President Trump’s impeachment brief.
Andrew: [Laughs]
Thomas: You know, I’ve seen stuff like his lawyers quit, you’ve seen the memes over his lawyers quitting. Now we just saw as we’re recording that, you know, someone wants him to testify, which doesn’t seem like it would happen, but what’s going on with this mess?
Andrew: Yeah, the President’s chief impeachment counsel, as of a week ago, a guy named Butch, resigned, and the speculation is that he resigned because the President wanted to put a full-on defense of yes, they did steal the election from me, and Butch was like-
Thomas: This is a Wendy’s. Yeah. [Laughs]
Andrew: [Laughs] Yeah, exactly! So, the President got two new guys, he got David Schoen and Bruce Castor, and again, we’re using our “read pleadings backwards.” You start at the signature page. David Schoen is just a guy. And when I say just a guy, I mean his firm is half the size of mine. [Laughs]
Thomas: Wow!
Andrew: We’re gonna have Morgan on next week, I’ve got an associate, David Schoen it’s just him! He just has a sole practice, and again, I just want to illustrate that. If Joe Biden were impeached and he were to call me up and go-
Thomas: [Laughs]
Andrew: “Andrew, I want you to steer impeachment.”
Thomas: Yeah.
Andrew: I would say sir, this is a Wendy’s! [Laughs]
Thomas: I’m honored, but like, maybe? A firm with more than two people in it?
Andrew: Morgan and I can work our asses off, but-
Thomas: Don’t get me wrong! [Laughs]
Andrew: Yeah.
Thomas: I’ll bring in Thomas, he’s an ace at the bar! But still, maybe go with somebody else?
Andrew: Maybe. So that’s Schoen. Bruce Castor, I was shocked. I’m gonna link the Philly Inquirer article, because the national news media has said, and you’ve probably seen this, he was the prosecutor that declined to prosecute Bill Cosby in 2005. It was the first instance of serious complaints came up. This Philly Inquirer article shows how much that is being soft peddled by national media. I’m gonna read from it. It is true, he was District Attorney for Montgomery County, Pennsylvania, from 200 to 2008. In 2005 police fielded a report that comedian Bill Cosby had sexually assaulted a woman in his home in Cheltenham, which is within Montgomery County, a year earlier.
Castor, in a 2016 hearing, because eventually Cosby was indicted and convicted, Castor said “I didn’t think at the time that the case was winnable,” and that “I cut a plea deal with Bill Cosby.” That deal was I would decline to press criminal charges on the assurance that Cosby would not plead the fifth during any civil suit by the woman. The Inquirer then notes, “There was no evidence of any written or oral agreement presented, which didn’t sit well with the judge [in that case], who determined Castor’s testimony to be [not] credible and inconsistent.”
Then Bruce Castor, the President’s impeachment lawyer, later sued Cosby’s victim, survivor, claiming, as he was running for various offices, that she was trying to interfere with his bid for reelection, and that case, The Inquirer notes, (quote) “went nowhere” (end of quote).
So, not just the DA that declined to indict Bill Cosby, but somebody who it is reasonable to infer lied about having cut a deal to protect the victim, and then later when the victim contradicted him in the midst of one of his perennial campaigns – he’s run for office like a dozen times, he loves the spotlight – Castor sued Bill Cosby’s victim. That seems way more scumbaggy than you get out of your national media reporting.
Thomas: That seems exactly as scumbaggy as I would expect for somebody defending Trump at this time.
Andrew: Fair enough, yeah.
Thomas: Precisely that amount of scumbaggery. [Laughs] I’m not countering your point, I’m just saying! [Laughs]
Andrew: Yeah, I wanna point out, Chris Murphy, Senator Chris Murphy of Connecticut, in describing Donald Trump’s defense, says “if they do try to bring into evidence these conspiracy theories it’s gonna happen in an adversarial setting where the House Managers can rebut. I think it’ll be really embarrassing to have a real time rebuttal of all this nonsense. My guess,” continued Murphy, “is that his defense is gonna be an S-show, and the only question is what kind of S-show it will be.”
Thomas: [Laughs]
Andrew: It is rare that I cannot quote a sitting U.S. Senator on this show-
Thomas: Yeah!
Andrew: -for fear of jeopardizing our clean rating on iTunes, but-
Thomas: How many different kinds of S-shows are there?
Andrew: [Laughs] Yeah!
Thomas: I didn’t know there are different vintages.
Andrew: Yeah, apparently there are.
Thomas: Varietals of S-show. [Laughs]
Andrew: So, what kind of an S-show is this? Let me go very quickly, there are – the single count indictment was short, so the President’s answer is 8 pages long and it’s terrible! It’s bad for defending the President. The first paragraph denies that the impeachment is valid because Donald Trump is no longer the President. (Quote) “Since the 45th President is no longer ‘President,’ the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity-
Thomas: Checkmate, lawyers!
Andrew: -that runs patently contrary to the plain language of the Constitution.” There are only two problems with this argument. The first is the Senate’s already voted 55 to 45 yes, it is, and the second is it does not run contrary to the plain language of the Constitution. Let me read that language for you. Article 1, Section 3 says “judgment in cases of impeachment shall not extend further than to removal from office,” (comma) “and disqualification to hold and enjoy an office of honor, profit, or trust under the United States.” That’s a conjunction. It’s not an if/then statement, that says there are two things that we can do in judgments of impeachments, we can remove and we can disqualify you. There is absolutely nothing in the text that says we have to remove you in order to disqualify you, and as we’ve talked about on previous episodes of Opening Arguments, the fact that they have pursued impeachments against officials no longer in office-
Thomas: Yeah.
Andrew: -strongly suggests that that reading is not tenable.
Thomas: Yeah, you have a great argument as long as no one’s ever been impeached after they were out of office again. Let’s just check that real – oh! They have been, okay. So, you have no case, got it.
Andrew: Exactly, yup. Paragraphs 2 and 3 say – so paragraph 2 was about Section 3 of the 14th Amendment, and again, they just reiterate he’s not the President so there’s no jurisdiction. Paragraph 4 is about inciting violence, and the response by the President’s legal team is “It is admitted that … the 45th President [after the November election] exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic (quote) ‘safeguards’-
Thomas: [Laughs]
Andrew: I am not, this is 100% Bruce and Joe wrote this.
Thomas: First time I’ve heard COVID referred to as “convenient.”
Andrew: Yeah.
Thomas: It’s been anything but convenient.
Andrew: Yeah. Bruce and David wrote this. So, “under the convenient guise of Covid-19 pandemic (quote) ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures.” Slight rabbit trail on that, OA 460 points you to the myriad Court cases in which the Trump administration tried to make these arguments and lost. These are terrible, terrible arguments. We read to you at length from the Pennsylvania Supreme Court that said “um, I dunno? Maybe we should have lots more safeguards, but that’s a job for the legislature to figure out and guess what? They did, and the fact that you don’t like it does not mean we get to rewrite them for you.”
Going back to Bruce and David, they say “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.”
Thomas: What?
Andrew: Yeah. That says you cannot prove that the election wasn’t faked.
Thomas: [Laughs]
Andrew: That the election wasn’t stolen. I am thinking we can prove that. So yeah, paragraph 4 right there, right after saying, the first three paragraphs just repeat the legal argument that says you don’t have jurisdiction to bring this case. The first argument the President raises is “oh and by the way, I really did win the election, I won it in a landslide and I can’t prove I didn’t.” Uh, yes, we can.
Thomas: Sorry, I’m not a lawyer. If I whip up an angry mob that goes and kills several people and storms The Capitol, is the burden of proof on the State to show that election wasn’t stolen? Is that really legally how that works?
Andrew: We are gonna get to his specific response to that one, but [Laughing] that’s part of the argument that they are making, yes.
Thomas: Okay.
Andrew: “A reasonable jurist would not have sufficient evidence to conclude that those statements were accurate or not.”
Thomas: Yeah, again, he led an insurrection.
Andrew: [Laughs]
Thomas: It doesn’t – even if he were right, the Court is where you would solve that. You go through the legal process; you don’t start an insurrection.
Andrew: Then we double down, because paragraph 5 repeats the President’s claim of “we won this election, we won it by a landslide,” that’s in actual quotes. The response, one sentence, “To the extent Averment 5 alleges [that Trump’s] opinion is factually in error, the … President denies this allegation.” Okay. You’re welcome to deny objective reality, but not sure how far that’s gonna get you.
Paragraph 6 was about his statement of “if you don’t fight like hell you’re not going to have a country anymore.” Bruce and David say “It is denied that [that] phrase had anything to do with the action at the Capitol as it was clearly” [Laughs] Psh, it was clearly, “about the need to fight for election security in general.”
Thomas: Yeah.
Andrew: That’s what they’re saying, that’s how they’re saying you interpret that. Not “if you don’t fight like hell and run down the street and burn shit and steal a podium you won’t have a country anymore.” No, that would be, you know, an impermissible inference to draw from that statement. Then there’s a bit that I do kind of like of throwing Ted Cruz under the bus, that’s like “and you know, I mean Congress was the one that challenged some of the certification, so this is kinda on them.” And I’m like well? This is the first good point that you’ve made, Bruce.
Thomas: [Laughs]
Andrew: Paragraph 7 is about Brad Raffensperger and the response is “It is admitted that Trump spoke … with Raffensperger and other parties … Secretary Raffensperger or someone at his direction (quote) surreptitiously recorded the call and subsequently made it public.” That’s true? Georgia’s a one-party consent State, so surreptitiously is a needlessly prejudicial adjective, anybody can record a telephone conversation in Georgia.
And I would love for them to call Brad Raffensperger so he can say “yeah, I recorded this because I was worried the President was gonna do exactly what he did, which was come out in public and lie about having talked to me the next day, so I told him, and I told the guy who recorded it that we weren’t gonna release this unless the President started attacking us, which he did in Twitter the very next day.”
Then substantively they say it is denied that the word “find,” as in you’ve gotta go out and find me the votes, was inappropriate in context, as President Trump was expressing his opinion that if the evidence was carefully examined, one would (quote) “find that you have many that aren’t even signed and you have many that are forgeries.”
Thomas: [Laughs]
Andrew: “It is denied the President Trump threatened Secretary Raffensperger.” Then paragraph 8 is some legal stuff, then they raise some legal defenses at the end. This is kind of like an affirmative defense section, and again these are legal arguments that they’re trying to throw at the wall. There’s the “no jurisdiction,” there’s “this is a bill of attainder,” which is a truly repulsively stupid argument. Yeah, bills of attainder-
Thomas: That’s like sovereign citizen level stuff? What are you talking about?
Andrew: This is almost sovereign citizen level stuff. A bill of attainder is if I go to Congress and I say “okay, I want you, Congress, to pass a law preventing Thomas Smith-
Thomas: Oh right, yeah.
Andrew: -of Sacramento, California, from doing X” that’s a bill of attainder as pertains to you particularly. Bill of attainder law, I have looked this up in other contexts, even when it has been the case that a particular bill has had the effect of only effecting one party, courts have declined to strike that down as a bill of attainder. This is a terrible argument.
There is an argument that everything he said whipping the crowd up into a frenzy was protected speech, and then the fifth argument, this is the last one I’m gonna talk – there’s other stuff. There’s a bit about how if the Chief Justice doesn’t sit then it’s not a real impeachment.
Thomas: Yeah.
Andrew: We’ve already talked about why that argument’s nonsense. But paragraph 5 is hilarious. Because remember, their argument is you brought this too late and he’s no longer in office anymore, or in the alternative, paragraph 5, (quote) “The House of Representatives deprived the Trump due process of law in rushing to issue the Article of Impeachment-
Thomas: [Laughs]
Andrew: -by ignoring it[s] own procedures and precedents going back to the mid-19th century. The lack of due process included, but was not limited to, its failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article, as well as the failure to conduct any full and fair discussion by allowing the 45th President’s positions to be heard in the House of Representatives.” This is – again, I cannot stress this enough, I am reading this word-for-word from Bruce and David’s brief.
(Quote) “No exigent circumstances under the law were present excusing the House of Representatives’ rush to judgment.” (End of quote). I mean, I can’t parody that any better than it is. How dare you bring this against the former President and so soon, too.
Thomas: [Laughs] I feel like that’s not a good legal argument, Andrew.
Andrew: No! I’m used to arguing in the alternative. You can say – you can do that all the time, I wanna make that clear, but the “you have no jurisdiction because he’s not the President” and also “why didn’t you wait six months?” is just – all I can say is I would not want to have to defend that position in front of the United States Senate.
There you go, by the time you hear this we will be teeing up for a trial next week, we’ll get to see how that unfolds. I think Brad Raffensperger’s gonna be a witness, other folks, Daniel Goldman thinks there won’t be witnesses. I know there’s kinda a rush to get this done as quickly as possible and get on to the business of governing the country, but I think it’s really important to get this right and I think it’s worth reminding people that, you know, not only do we have a President that doesn’t care at all about the rule of law or democracy, but his actions resulted in people being killed and that ought to count for something.
There you go, there’s your guide to the President’s answer and impeachment, you can’t prosecute me because I’m not the President and also you did this, you rushed to judgment, it was too fast, and I was just saying words, and by the way the election really was stolen from me. [Laughing] In the words of one prominent Connecticut Senator, Chris Murphy, this is gonna be an S-show.
Thomas: Yeah, just waiting to find out which varietal of S-show it is.
[1:01:39.1] [Patron Shout Outs]
T3BE Question
[1:04:05.0] [Segment Intro]
Thomas: And now it’s time for T3BE, and we’ve got a special guest on for the final question of the porked test. Now Andrew will still, I’m sure, find another porked test to use to continue the porking, but for now [Laughs] the final question of this porked test. We’ve got Morgan Stringer, ace associate! How’re you doing, Morgan?
Morgan: I’m doing good, I’m dreading the bar exam again.
Andrew: [Laughs]
Morgan: I’m having flashbacks, uh, yeah. Nightmares.
Thomas: Look, either you get it right and that’s great, or you get it wrong and we move forward with our legal proceedings against Andrew for porking the test. It’s a win/win for you!
Andrew: [Laughs]
Morgan: Hoo, yeah. I don’t see this as a win/win because I know I’m gonna get this wrong!
Andrew: [Laughs]
Thomas: Alright, well, this is a little preview for Tuesday’s episode when you’re gonna come on and talk about Robinhood and GameStop and all that stuff, but for now we’ve got to face this final question. Andrew, here we go!
Andrew: Alright Thomas and Morgan, a woman was walking across the street when she was struck by a vehicle traveling at a high rate of speed. As she was laying on the pavement dying-
Thomas: Jeez.
Andrew: -she told a bystander who was at her side, (quote) “’I know I am dying. I want to tell you before I die that I saw my neighbor steal the Madonna painting from the museum.”
Thomas: Wow!
Andrew: The woman then died.
Thomas: Wow!
Andrew: In a civil suit by the museum against the neighbor for conversion, is the woman’s statement to the bystander admissible? A) Yes, as an excited utterance; B) Yes, as a dying declaration; C) No, because it would violate the neighbor’s Sixth Amendment right of confrontation; or D) No, because it is inadmissible hearsay.
Thomas: This is at least a short question. [Laughs] So it’ll be easy to be wrong faster.
Andrew: [Laughs]
Morgan: [Laughs]
Thomas: But no, I think I should be able to have a chance at this one. A, yes as an excited utterance, no. I’m eliminating A, that doesn’t seem right. B, yes as a dying declaration. That’s – honestly that’s frontrunner for me. C, no because it would violate the neighbor’s Sixth Amendment right of confrontation. I mean, that’s an argument against – so that would be an argument against any kind of hearsay like thing where the person dies, and we know that that’s not sustainable, I don’t think.
D, no it is inadmissible hearsay. I think this is pretty solidly between B or D. I’m pretty confident that it’s either a dying declaration or it’s not going to be admissible because it’s hearsay. The C, no because it would violate the neighbor’s – I think that’s, yeah, it’s an attractive distractor. I think that’s kind of the reasoning behind it. I’m pretty solidly between B and D and I am pretty sure that Andrew has told me that a dying declaration is a hearsay exception, so I’m going B, final answer! Alright Morgan, how do you think I did? [Laughs]
Morgan: So, as I recall from evidence class and from my many studying of the hearsay exceptions, a dying declaration, which you know, I have never had this come up before [Laughs] in a situation ever, but I believe it has to be related to the circumstances of the person’s death.
Thomas: Ah.
Morgan: So, you know, if she had been hit by a car and she was laying on the pavement dying-
Thomas: Yeah.
Morgan: -and then she had said “oh my god that guy with the Nevada license plate just ran me over”-
Thomas: Right.
Morgan: -and then you die, then that would be a dying declaration. But I would say yeah, this is inadmissible hearsay, because Sixth Amendment right of confrontation? That deals with, yeah, criminal matters, and excited utterance, it’s never an excited utterance.
Thomas: [Laughs]
Andrew: [Laughs]
Thomas: Alright, that’s your official attorney giving me tips for the future. It’s never an excited utterance, got it.
Morgan: No, even though they do love to – I love this detractor in the bar exam? This is something that you would see is they put in an exclamation point-
Thomas: [Laughs] To make it exciting?
Morgan: And then they’re like “oh yes, that’s an excited utterance, this person was excited when they said this!”
Andrew: [Laughs]
Morgan: Yeah, so it’s one of those.
Thomas: Okay, so you’re going with D.
Morgan: Yes, I’m going with D.
Thomas: Alright, yeah, I was trying to be fast because we’re out of time, but I agree with your – okay, now that you’ve said that, I mean I was worried that, like, if it needed to be about the guy who hit her with a car versus the just testimony about a neighbor. So that’s, yeah, okay. I think I probably got this one wrong and this test is still porked, and either way you come out ahead, I think.
Andrew: [Laughs]
Thomas: [Laughing] But my answer’s B, final answer for you is D.
Andrew: Okay, and if you wanna play along with Thomas and Morgan, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE; include the hashtag #porkthestreak, that’s how I know you’re still listening, and share your guess, your reasons therefore. Do you agree with Thomas, do you agree with Morgan? Do you disagree with both of them? That would be hilarious. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Tune in on Tuesday to hear Morgan explain GameStop and Robinhood and all that stuff, and find out, uh, that the test is still porked. And that’s our show, oh I can’t wait for Tuesday. You’d better come listen. And actually, patrons get it Sunday night, ad free, the shoutouts are last. Be a patron, it’s a good idea. And of course, also that Stereo Q&A every single Wednesday, Andrew. 5 pm Pacific, 8 pm Eastern. I’m excited. It was a little weird to have two this week, but next week that’ll be the only one, there’ll be plenty of questions, plenty of great questions, plenty of great answers. So, everybody, get that Stereo app, come hang out with us every Wednesday.
Andrew: Yeah, it’s a lot of fun. It’s very interactive in real time, so if you haven’t given it a try, give it a try! Go enjoy it.
Thomas: Yeah, follow @Torrez and @Seriouspod, or just search Opening Arguments, either way. Alright, that’s our show, thanks so much for listening, we’ll see you next time.
[Show Outro]