Topics of Discussion:
- Sanctions Motion Against Sidney Powell
- Follow-Up on John Roberts was Right
- Andrew Was Wrong
- T3BE Answer
Thomas: Hello and welcome to Opening Arguments. This is episode 481, I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I am fantastic, Thomas, how are you?
Thomas: I’m doing great! We’ve got a lot of fun stuff, we’ve got Sidney Powell to talk about!
Thomas: Possibly consequences for Sidney Powell, which is the important part, and follow-up on the case where you said John Roberts was right and everybody else was wrong. I’m very curious to hear if you’re changing your mind on that or not, and some more Banque Worms possibly!
Thomas: A little bit of … Andrew Was Wrong on Banque Worms, and other stuff. We’ll see if we can squeeze all that in, but here we go, let’s get right to it so we get to do all our segments.
Sanctions Motion Against Sidney Powell
[1:56.4] [Segment Intro]
Thomas: Are there consequences ever [Laughs] for Sidney Powell?
Thomas: And/or any other horrible corrupt lawyers that are doing really stupid stuff?
Andrew: The answer is a firm maybe.
Andrew: Here’s what’s happened. In one of the lawsuits, this is William Feehan v. Wisconsin Election Commission. This was the case saying that Wisconsin couldn’t certify its election results because secret reasons. One of the defendants named in addition to the Wisconsin Election Commission was Governor Tony Evers. He has now filed – that case is long since closed, it was ridiculous. You know, in short, it was a Sidney Powell lawsuit, and Tony Evers has now moved for sanctions and attorneys’ fees against Sidney Powell for – well, here. Let me let him describe it!
(Quote) “Plaintiff and his attorneys advanced a lawsuit that, from its inception, was frivolous, dilatory, and without any merit.”
Andrew: “Plaintiff’s Complaint did not outline coherent legal claims so much as it flitted among a variety of fringe conspiracy theories sourced to anonymous declarations submitted by ostensible experts who were later identified and revealed to be extreme partisans with neither experience nor qualification to provide any type of opinion on the subject matter. At least one of the anonymous declarants was revealed not to be a declarant at all, having never agreed-
Andrew: -to the use of her words in this lawsuit. In sum, none of the (quote) ‘evidence’ (end quote)” [Laughing] and look, you rarely see sarcasm quotes in a pleading. “None of the (quote) ‘evidence’ offered by Plaintiff had any relevance to Wisconsin’s 2020 Presidential election and much of it did not meet other standards of admissibility.”
Andrew: “Compounding the-” this goes on! “Through the Looking Glass experience of litigating this action, the arguments plaintiff’s attorneys made during the case’s short pendency were utterly bereft of legal foundation, and in some instances foreclosed by binding precedent.” That’s paragraph one and this motion for sanctions is 30 delightful pages long.
Thomas: I’m just sitting here chewing my fingernails of what does it say about my T3BE answer this week?
Thomas: Did they need to give her a chance to withdraw the motion? Aw, did I blow it! We’ll see. Anyway, tune in later. [Laughs]
Andrew: [Laughs] Absolutely! So, Sidney Powell’s response – this was filed on March 31st, we were gonna cover it last week but ran out of time. She still has until the end of this week to respond. Believe me, we are going to cover her response to this motion because I am positive it is going to be entertaining. The arguments here are really, really good arguments, and they cover the entire landscape. Again, I say this as somebody who has litigated and won sanctions. It’s rare, but it happens. I want to tell you that in the context of that, I would be pleased to sign off on this sanctions motion.
What are the arguments that Tony Evers is making? They really fall into five separate buckets. The first bucket is that they were grossly wrong on the facts. That they introduced into evidence things that were not evidence, and in general were just terrible, terrible lawyers. This is often marked under the headline of “engaged in vexatious and bad faith litigation.” This is the conspiracy theory stuff. I want to tell you, if that’s all this motion were I would feel much less charitably inclined towards it. Not because Sidney Powell’s not a crazy person, not because her arguments weren’t terrible, but because courts give you wide latitude in how you argue your cases. Did it turn out you were wrong about a whole bunch of stuff? Yeah, but you know, we don’t want to-
Andrew: -discourage people from being able to bring meritorious lawsuits in the future that are nevertheless at odds with what the official story is stating. You could imagine that, if there was a legitimate government cover-up of something, and sometimes there are. That happens. You don’t want to set a precedent that says “I want to deter a genuine whistleblower from brining a genuine complaint.” If that’s all they had I would say this is gonna lose. [Laughs] This is not all they have.
Andrew: Category number two are they’re terrible lawyers as a matter of procedure. That is, again and again they did the kinds of things that no first or second year associate should do in connection with litigating cases. The reason for that is Sidney Powell is not a lawyer. I mean, look, yes, she can write “esquire” after her name, she passed the bar in 1874 or whatever.
Andrew: But her job, far more so – you want to level this criticism at me? Go ahead, but I practice daily. Her job is to be an idiot talking head on TV.
Thomas: Yup, and she’s great at that! [Laughs]
Andrew: It’s one of those, I’d say don’t quit your day job, you suck at that too.
Thomas: If that’s her job, she’s incredible at her job, to be an idiot talking head. Yeah, she nailed it.
Andrew: But yeah, the less actual law work you do the more … well, let’s read some of the stuff that fell through the cracks. “Plaintiff’s attorneys made several egregious procedural errors that inflated the time and expense necessary to defend this lawsuit.” By the way, that’s a really good argument for sanctions. Saying “you suck at your job” is not, but “the fact that you suck at your job meant I had to do extra stuff and that cost me and my client money” is a good argument. I shouldn’t have had to do this, so therefore you should have to pay for it.
“They originally included a co-plaintiff who never consented to participating in the lawsuit.” Well, that’s bad. “It was also apparent that the Complaint was a recycled version of a different lawsuit. For example, the requested relief asked for ‘production of 48 hours of security camera recordings of all rooms used in the voting process at the TCF Center.’” The only problem (quote), [Laughing] “The TCF Center is located in Detroit, Michigan, and has no relevance to Wisconsin’s 2020 election.”
Andrew: “These fundamental errors required the filing of an amended complaint, which in turn required review and analysis by defense counsel. But even the amended complaint contained errors, including that it failed to allege that Plaintiff voted in the Presidential election, which is an essential detail to establishing standing. These shortcomings were not limited to Plaintiff’s initial Pleading, Plaintiffs also filed a Motion for Injunctive Relief, but failed to include the Order that it referenced. The Certificate of Service accompanying the Motion failed to list addresses for service, because at that time no Defendant had yet filed an appearance, so CM/ECF” (that is electronic filing) “was not sufficient.” In other words, if the Defendant has not yet filed an appearance when you file it electronically, their lawyers don’t get a copy because the Court doesn’t know who those lawyers are yet.
“And though Plaintiff’s attorneys claimed to file documents under seal, they failed to do so and never requested in camera review with that motion. The mistakes made in the first Motion for Injunctive Relief necessitated the filing of a corrected Motion, which the Court explained was also not complete or correct as to form.”
Thomas: [Laughs] Oh man!
Andrew: “Plaintiff’s attorneys then filed an Amended Motion for Injunctive Relief, which for the third time was not in proper form, but was construed by the Court in the Plaintiff’s favor. Attorney Powell specifically” (Sidney Powell) “filed motions without first filing an appearance and, upon notice from this Court, filed an inaccurate appearance that claimed she still represented the removed co-plaintiff.” (Remember the person who’s permission she did not get before adding to the lawsuit).
Andrew: Then, this goes on!
Thomas: Boy, she is a really, really shitty lawyer.
Andrew: Yeah! “Then, following briefing and this Court’s decision on the matter, Plaintiff’s attorneys mishandled the appeal to the 7th Circuit. They rushed to file before a judgment sufficient for appeal was entered, necessitating the subsequent filing of an Amended Notice of Appeal and a Motion to Consolidate the two separate appeals. Without a doubt, Plaintiff’s attorneys unreasonably taxed the resources of the judicial system with their significant procedural errors.” That’s a really, really strong argument.
Thomas: That’s several really strong arguments! [Laughs]
Andrew: Look, every lawyer I know has filed the wrong thing in the wrong spot.
Andrew: You know, clicked the wrong box on, we work hard-
Thomas: Accidentally filed an age discrimination complaint against a hospital that had actually replaced the 50-year-old, just for example?
Thomas: I’m wondering?
Andrew: We might get to that.
Thomas: We’ll get to that? Okay, sorry.
Andrew: A Court will give you a mulligan. They’ll give you a second mulligan.
Thomas: Really. [Laughs]
Andrew: This was so bad that ultimately the Court was like “Sidney Powell, we have tried to get you to file this pleading correctly twice in a row.”
Andrew: “Just … whatever this thing is here, we’re gonna construe this as if you’d filed it correctly.” The third category of events are – and again, if the second category is tied into-
Thomas: Wait, we haven’t finished all the categories of why Sidney Powell sucks? [Laughs]
Andrew: Oh, no! Oh, no, we’re not halfway through!
Thomas: Oh god! [Laughs]
Andrew: Yeah. It gets better. If the previous category helped explain why sanctions, why monetary sanctions are appropriate remedially-
Thomas: I really hope I never do my job so badly that we have different volumes and categories of why I suck at my job! [Laughs] Oh, reasons you suck at your job A through F, G through, you know. I hope there aren’t like an Encyclopedia Britannica of all the ways I can’t do my job. I hope there’s just, you know, a handful.
Andrew: [Laughs] Yeah. If we’ve established why sanctions are appropriate because everybody else had to spend more money because of how terrible they were at their job, this is the moral backbone for that. That is, they lied about the law. This is not just me saying that, this is, the header is “Plaintiff’s Briefs Misrepresented the Law,” which is accusing you of lying. The text is no less scathing. It says, “Briefs submitted by Plaintiff’s attorneys were riddled with egregious errors. They fabricated a quote and attributed to it an opinion by Judge Stadtmueller,” (and then there’s a citation to where it is in the docket) they argued this one particular case established standing (quote) “to challenge State laws that collectively reduce the value of one party” (end of quote) “without noting that the Supreme Court expressly overruled that case on that rational.” That’s real bad! I can’t explain to you how bad, that is a Travis Wester level error.
Andrew: “And they recklessly distorted governing law by relying on outdated precedent to argue noticed based pleadings standards, without acknowledging that the legal pleading standards changed drastically since 1987.”
Andrew: This … this seems – and I just need to do a little marginalia here. Morgan Stringer, Ace Associate, will be nodding along. If you are engaged in federal practice, you know that the Supreme Court’s opinions in Iqbal and Trombly.
Thomas: Of course.
Andrew: In Iqbal and Twombly, it’s a hard word to say, completely changed the landscape of how you plead appropriate standing in federal court. It made it more robust. It made it easier for defendants to move to dismiss because what you must do to survive a Motion to Dismiss in light of the Supreme Court’s opinions in Iqbal and Twombly is that you have to plead at least some facts that suggest a right to relief that is (quote) “beyond the speculative level.” In other words, pre-Iqbal and Twombly, the courts would construe your pleadings as broadly as possible, then in the early 2000s the Supreme Court was like “okay, we’re gonna narrow this down a little bit. Everybody who practices in federal court knows those two cases like the back of your hand. You would not – it is a mistake – it’s a fireable offense to say “we meet the standard here because,” and then cite to a 1987 case, because you know the Supreme Court intervened in Iqbal and Twombly. That’s not something that you might necessarily know, you know, as a nonlawyer, but every lawyer here is nodding along going yeah, that’s super terrible.
Andrew: “This gross misstatement of law along with the fake quote, the misleading citation to Whitford, evidence objective bad faith and exemplify the total hash that Plaintiff’s attorneys have made of this litigation.”
Thomas: Wow. Total hash. Is that a legal term?
Andrew: Total hash. Yeah, yeah. Next there’s an entire subsection, this is subsection E, that is stuff we talked about on OA. “Plaintiff’s attorneys filed this lawsuit without the support of credible, relevant, or remotely admissible evidence. Plaintiff’s Amended Complaint relied upon the testimony of 13 purported experts and fact witnesses. Of those, five were anonymous, making verifying their credentials and assessing their qualifications impossible. Indeed, it was impossible to [Laughing] know whether these affidavits were even verified by the affiants as required by federal law. Consequently, these affidavits were inadmissible, as Plaintiff’s attorneys knew or should have known.” We mentioned all of that. “Two of these anonymous experts were later revealed to lack all credibility.” You know who these two anonymous experts are-
Andrew: Spyder and Terpsichore.
Andrew: [Laughs] It goes through, Spyder blames Plaintiff’s lawyers, that is Sidney Powell for making the inaccurate assertions about him being an electronic intelligence analyst under the 305th Military Intelligence Division.
Thomas: Yeah. [Laughs]
Andrew: Secret Agent Orange! Oh, as it turns out I’m a mechanic.
Thomas: Does Spyder have to file a motion to stop being called Spyder in the court? Like, this is a dumb thing. Nope! Sorry, you’re known as Spyder in this court.
Thomas: Until you file the correct motion.
Andrew: [Laughs] How great would that be? He’ll be like 74-
Thomas: Motion to not be referred to as Spyder! [Laughs]
Andrew: [Laughs] Then Terpsichore claimed China was somehow involved with Dominion voting systems and effected Wisconsin’s presidential election results. “That individual” (and tell me they didn’t listen to our show). “That individual was later revealed to be a pro-Trump podcaster who had previously lied about being a medical doctor and having both a PhD and an MBA. She was found to have unlawfully misspent raised funds and solicited donations. The judge in that case ordered her to pay more than $25,000. The podcaster had never spoken to Plaintiff’s attorneys or agreed to the use of her declaration in this suit, or others brought by the Plaintiff’s legal teams.”
Then they go through, the other witnesses that we didn’t cover, I’ll do this at a super high level. It says, “There is no greater credibility in the 8 declarations and purported expert witnesses for whom identities were given.” [Laughs]
Andrew: “For example, exhibit 3 is a report from Matthew Braynard, who discussed a survey that he maintained uncovered assorted irregularities” (Ooh!) “in Wisconsin’s election results, but his only identified education was ‘Degree in Business Administration.’” [Laughs] “Failed to provide any sampling method, telephone protocol, scripts used by interviewers, quality control steps, information about who conducted the phone calls, or information about how the voter telephone numbers were located and verified. In short, Braynard’s survey had none of the indicia of reliability necessary to admit survey evidence. He did some kind of goofball survey of calling Trump supporters saying “hey man-
Thomas: Oh my gosh.
Andrew: Did you vote for Trump? Really? Okay.” He’s got a degree in business administration, not statistics. “The declaration from William Briggs is based on Braynard’s survey results.” [Laughs] “The affidavit from Joseph Altman purports to recreate a conversation he purportedly overheard in which someone he speculates was a Dominion employee made representations about the 2020 election. Altman layers speculation on top of hearsay to promote a conspiracy theory about election manipulation.” [Laughs] I could go through, we have no qualifications, we have the declaration about elections in Venezuela, okay, the evidence was super bad.
Thomas: Is there another volume of…[Laughs]
Andrew: [Laughing] And then finally, yup! [Laughs]
Thomas: How she sucks at her job, volume 4 I think we’re on?
Andrew: That was four, this is five.
Thomas: Oh, five! Okay!
Andrew: Most of Plaintiff’s request for relief were unprecedented and impossible to grant.
Andrew: So, without any legal support, Plaintiff asked this Court to unilaterally and counterfactually declare that Donald Trump had won Wiconsin’s presidential election. Plaintiff’s and his attorneys did not ask for a new election, or to have the legislature select electors like other lawsuits requested.
Thomas: [Laughs] Yeah.
Andrew: Instead, they just asked this Court to do that by fiat overriding the will of-
Thomas: Just magic. Just fix it. Fix it all, make Trump win. Cool! That doesn’t sound very lawyer-ey.
Andrew: No. “Also, they requested an order enjoining Governor Evers from transmitting the certified election results to the electoral college, which had already occurred by the time the lawsuit was filed.” Yeah. Now, you’ve asked about this in the context of the T3BE question.
Thomas: [Laughs] I was gonna say…
Andrew: Let me answer that. Your T3BE question is governed by Rule 11 of the Federal Rules of Civil Procedure, and we’re gonna talk about that. This is not a request under Rule 11.
Andrew: This is a request under the court’s inherent sanctioning authority, which is repeated routinely throughout the case law, which says that district courts possess inherent powers not conferred by rule or statute to manage their own affairs, to achieve the orderly and expeditious disposition of cases. That includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process. That can include harassment, unnecessary delay, needless increase in the cost of litigation, willful disobedience, and recklessly making a frivolous claim. And they have asked for relief under 28 U.S.C. § 1927, which says “an attorney who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the Court to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct. That’s what they’ve asked for.
If the Court grants it, what they will do is come up with a bill of costs and that bill of costs will say – the Court will say “okay, we’re going to reimburse you for, you know, the following things that you had to file that you shouldn’t have had to file,” then they’ll get to submit all of their legal bills, and if the Court grants the relief- [Laughs] By the way, the last section of the brief argues Plaintiff and his attorney should be held jointly and severably liable for sanctions. That is they can go after the named Plaintiff, who probably doesn’t have any money, or they can go after millionaire Sidney Powell, who definitely does have money and then force Powell to go after her client to make up the difference, which no lawyer is going to do. Yeah, I’m very, very excited.
Andrew: In watching what – I mean, the great part is going to be Sidney Powell, unhinged lunatic, responding to what you just heard, pretty aggressive language describing the conduct of Sidney Powell, unhinged lunatic.
Thomas: I’m just sad that the best outcome is sanctions. I feel like prison time is more-
Thomas: How bad can sanctions get? What are sanctions? [Laughs]
Andrew: Well, look, as part of sanctions you could hold somebody in civil contempt, except that this case is closed.
Andrew: There’s no reason to do that, so she will not be serving prison time as a result of this, but look, if Sidney Powell has to write a $50,000 check to the governor of Wisconsin? That will be glorious. It probably won’t be as high as $50,000, but that’s not an impossible outcome here. We’ll continue to watch, but this was delightful to read and I just had to share it with you.
Thomas: It was delightful to listen to! [Laughs]
Follow-Up on John Roberts was Right
[25:46.6] [Segment Intro]
Thomas: So, what’s our follow-up on episode 473, in which you talked about how [Laughs] John Roberts was right and the rest of the Court was wrong. It seemed pretty convincing to me, but, uhh, have you changed your mind?
Andrew: I have not, but I received a lengthy letter from Ryan Jane, who is a staff attorney at the Freedom From Religion Foundation, our friends over there at FFRF, and I take seriously what he had to say, so I want to read that letter and engage with his arguments, his points on the air. This is about our discussion in episode 473, In Praise of John Roberts of the Uzuegbunam decision, Uzuegbunam v. Preczewski. This was an 8-1 decision in which John Roberts was on the bottom and I argued that he was right. I continue to believe that. This case involved two students at Georgia Gwinnett College, Chike Uzuegbunam and Joseph Bradford, who were students at Georgia Gwinnett who wanted to proselytize, who ran afoul of certain restrictions for proselytizing on campus and then during the scope of the litigation, during the pendency of that litigation, the school said “you know what? We’re gonna change that policy. We agree, you’re right, we’re wrong, we’re gonna change that policy.” The question is one of standing. Once there is no longer an active case or controversy, should the court continue to weigh in? The 8 justice majority said yes, and their reason was because the case also requested nominal damages. It said yeah, we want a vindication that we were right and we want you to pay us a dollar-
Andrew: -as proof that we were right. And John Roberts said that turns the Court into advice columnists. We cannot save a moot case or controversy by asking for a dollar. I would place a higher value on Article 3, and I therefore dissent. Now, with that as background, here are the issues that are raised in Ryan’s email.
He starts off with “Two things that I think we agree on. One, there should not be any formalistic games in litigation that you can lose because you aren’t aware of little tricks. You sold Thomas on this regarding the need to plead nominal damages. But if Roberts had is way the problem still exists but in another form. If you forget to plead compensatory damages, even though you won’t be able to prove any, you can lose if your injunctive relief is mooted. That’s just one example, but the point is that that’s not what’s at issue in this case. These dumb tricks need to get fixed, but they’re there with or without this case.”
Andrew: Not true. Okay?
Andrew: Let me be explicit here. You’re arguing the contrapositive of what I’m arguing. I am saying right now in every case where litigants are seeking only a declaratory judgment – and by the way, I’ve litigated these cases all the time. Let me give you a classic example. In contract disputes, which is my bread and butter, you have an ongoing relationship. My client is unhappy with the contract and says you know what? Out of an abundance of caution this contract runs for another 10 years, I think I’ve got the right to withdraw from it, but I’m not gonna withdraw, cause you damage, make you sue me, then potentially lose. I’m gonna go to Court and I’m gonna get a declaratory judgment that says yeah, the contract is void. Until I get that judgment I’m gonna continue to abide by the contract, that way I’m not causing you any real damages, it is a live case or controversy because we disagree over how to interpret the contract, and we’re going to the Court to get declaratory relief.
Again, this is the kind of thing litigants do every single day across the country. You plead only a request for declaratory relief. I have never plead a request for nominal damages in those cases. It will now be malpractice to not tack on a nonsense claim for nominal damage in each and every one of those cases.
Andrew: Because if they change the contract, if they change the policy and it moots the case I now have a citation that allows me to continue to go forward so long as I’ve pled a complaint for nominal damages. I disagree with this first point. I’m not saying that had the Court gone the other way it would have solved all issues of pleading nonsense and formalistic games, but I’m saying this opinion will result in a change to practice that overcomplicates, that moves away – again, one of the themes of Opening Arguments, since episode 1, is let’s move away from “whereby the party of the first part doth witnesseth to the party of the second part,” the kinds of magic words the people think the law is, and move towards common sense applications. Now saying I have to explain to my clients, why do we have this separate count for nominal damages in here? Well, because the Supreme Court says … I can’t explain it in lay-English as to what it’s supposed to do, it just becomes a bit of formalism that’s now complicating practice. I disagree with that point.
Okay, then he says “Bad faith governmental actors regarding whether their policy change is genuine can be dealt with in other ways.” No argument there, also not at issue in this case. I’m glad we agree on that, but I think that dividing line is going to be where I come out when we get to the things that we disagree over. But that’s correct, this case does not – there are multiple ways in which one of the counterarguments, and maybe this is what he’s thinking about, one of the counterarguments that you might get in response is oh, Chief Justice Roberts, you’re incentivizing a bad faith defendant to make them litigate, get halfway through, then say “oh, we’re gonna change the policy,” moot out the case, and then change it back again. Continuing to be Lucy pulling the football away from Charlie Brown.
Andrew: You may have made that point when we were discussing the case, but Ryan is agreeing with me that that is not the issue here. There is no dispute that Georgia Gwinnett College sincerely changed its mind, and in the event that there is bad faith acting, that doesn’t moot a dispute because you have the capable of repetition yet evading review standard. You have a bunch of different ways to be able to go back and say to the Court “Your Honor, they changed their mind last time, they’re gonna do it again.” So, it doesn’t render it moot. It’s only a good faith change that really does render it moot. I’m glad we agree on that part.
Now, the new points. First Ryan says “you didn’t mention this case’s strange bedfellows, with the likes of The Alliance Defending Freedom, and us, the FFRF, both submitting amici in support of petitioners. The reason is that even though these particular facts make you feel bad for the college for having to defend a policy they’ve given up on or else admit that their old policy caused constitutional harm, Roberts’ solution leads to an even worse result, which is easier to see when the facts are flipped.” I’m gonna get into that flipping of the facts in a second. I think it is very interesting that the ADF and the FFRF were on the same sides here.
Andrew: I think we alluded to that a little bit in the sense that it does not surprise me to see the FFRF on the other side of this case because as we pointed out generally speaking liberals tend to be more skeptical of how this Court in particular has used standing as a bar to litigants. I am well aware, and again I think this also applies to other niche advocacy groups like the ADF who have a history of getting bounced from cases on standing. If we brought Ryan or Andrew Seidel on and said “hey, how many times have you been bounced out of court on standing?” They, you know.
Andrew: They would roll their eyes and be like “yeah, it happens to us all the time, so we’re super skeptical about standing.” I’m not surprised at that, I should have pointed out that unique alignment because I think that that’s very interesting and it does not neatly fall on the category of, you know, lefties skeptical of standing, righties pro expanding the doctrine of standing to keep litigants out of court.
Now, let’s see what he envisions as the flipped result. He says, “Suppose you have a State governor that fragrantly and openly violates your 1st Amendment rights, take our case against Texas Governor Abbott where he ordered a public display to be taken down simply because he didn’t like it. Or worse yet, suppose a police chief sends a squad of cops to his ex-wife’s house, tells them the code to get inside where they ransack her house, terrifying and embarrassing her, but causing no direct monetary damages.” Well that last one, I think, is kind of – [Laughs] you ransack the house there’s gonna be economic damages.
Thomas: Yeah, yeah.
Andrew: But, let’s work with it. “In both cases, suppose in the final stages of an appeal the government adopts a new policy that prohibits the conduct in question. Should the plaintiff call this a win and go home with their dollar? You said that seeking only a declaratory judgment is the definition of an advisory opinion,” I think that’s out of context. I’m defending DJs, so if I said that, if it came across that way, I certainly don’t agree with that.
“So, what is a person supposed to do when the government causes you very real harm but it’s not money harm so you don’t plead compensatory damages?” Well, I think what you do there is sue to get the government to change its policy, and I think if they sincerely change their policy then you’ve gotten the thing that you want.
Andrew: I get it, I think where we live here is in the grey zone between your experience as boots on the ground, which, look, I will reiterate, if you’re not a member of FFRF, go sign up today. They are doing fantastic work.
Thomas: I am a member of FFRF.
Andrew: Yeah, me too! They are doing boots on the ground work that is more important now than ever in light of where our Supreme Court is. I get that, and I certainly get the kind of underlying mistrust of saying “oh, we’ll change our mind at the 11th hour.” I think maybe there is an argument that we can move the fraud standard down a little bit? All of those are real possibilities, but I think – I gotta tell you, what I keep coming back to was we had Andrew Seidel on to discuss the Trinity Lutheran decision, and you may recall – Thomas, I know you recall this – I picked Trinity Lutheran for our 2016 “You be the Supreme Court-”
Andrew: Because I thought it was controversial but very, very clear what the law was in light of the Washington opinion, that ultimately the Supreme Court was going to come down the other way. The oral argument was a disaster, and the reason that the oral argument was a disaster – well, first, the oral argument was a disaster. We had Andrew Seidel on and I said “I’m not too worried about that, oral arguments aren’t that important.”
Andrew: And Andrew Seidel said “yeah, but this was real, real bad.”
Andrew: “I was there-
Andrew: -and you need to know,” and it turned out it went 7-2 the other way.
Andrew: In a way that I could not have envisioned. We asked Andrew for his evaluation, which stuck with me to this day. He said yeah, well, that’s because the State of Missouri declined to enforce – nobody wanted – they changed their mind, they’d admitted Trinity Lutheran to the competition by the time this case was there. We’d had a change in the governorship, so nobody wanted to defend this policy at all. As a result they did an unbelievably terrible job at the Supreme Court and we’re left with this awful, awful opinion because no one was there to put any time or emotional energy or intellectual energy into defending something that they agreed with anymore. I think Andrew summed that up as sort of the classic lawyer’s aphorism of bad facts make bad law.
Andrew: That has really stuck with me. I think it makes it, in a situation where somebody is going through the rigmarole of trying to defend a policy that they agree is wrong, it just opens up so much more potential for terrible opinions like Trinity Lutheran, then the contrary. That’s where I draw that dividing line. I recognize – I wanted to read Ryan’s stuff on the air. He’s got one more point that I think illustrates sort of the difference in our backgrounds. Again, really, really good point. He says, “finally, in some cases civil rights attorneys who take cases pro bono have no way to get paid,” and that’s true.
Andrew: You will typically say you have to have a judgment on the merits. “The other nuances with this, and this emails already too long but I wanted to get my initial thoughts to you, would love to discuss more or hear counterarguments.” I agree with you, you’ve got the social problem of getting pro bono work paid through having a prevailing verdict, through prevailing at trial and on appeal. I think on balance I consider it a win when the FFRF gets a school to take down a sectarian religious display or sign. I think it’s a win when you get a school district to change a policy, and I don’t think we need to preserve that as a live case or controversy with this, you know, fiction rigmarole of nominal damages. But I love giving voice – I didn’t give voice to the arguments on the other side because it was already 8-1. [Laughs]
Thomas: Mm-hmm, yeah.
Andrew: Right? You guys won.
Andrew: We were sort of already – I was taking up the “it’s me and John Roberts alone on the island,” but there is the case for the mainstream and how I interact with it.
Andrew Was Wrong
Banque Worms Follow-Up
[41:25.3] [Segment Intro]
Thomas: Alright well that leaves us enough time for Andrew Was Wrong? About Banque Worms?
Andrew: [Laughs] Yeah! This comes from longtime listener Irene Johnson, and I’m just gonna read it because this is delightful. Irene says, “Hi Thomas and Andrew, here’s some information about Banque Worms. First, the bank itself was purchased and dismantled by Deutsche Bank in 2000, so unless there are still vestiges of it, Banque Worms lives on only in the annals of jurisprudence.” Love that. “In French, ‘Worms’ is pronounced “Verms” with a long O and, yes, the S is pronounced. A hint for French pronunciation in the future, the letter W is generally pronounced like an English V.”
Thomas: You said that. You got that right.
Andrew: Yup, yup. “Surprisingly, Worms is actually tangentially related to the English word ‘Worm.’ Banque Worms was founded in 1928” (I love this) “was founded in 1928 by a guy named Hypolite Worms.”
Andrew: “Worms being his last name. The name Worms is from the Alsace-Lorraine region of France where the local dialects are sort of halfway between French and German.” Yeah, a bunch of people wanted to write in and talk about the German city of Worms and the diet of Worms-
Andrew: -which we did make reference to.
Thomas: When she said “long O” is that more like “v-oh-rms?”
Andrew: Oh I guess, yeah. Could be Vohrms.
Thomas: Yeah. Worms.
Andrew: I’m gonna say Worms.
Andrew: “In the middle ages the word ‘worm’ meant snake or dragon in German and gave rise to the Old English wyvern with a Y, which referred to both snakes and worms.”
Andrew: “You may have noticed that dragons and snakes are sometimes referred to as worms in literature,” (which I have). “Thomas is right that if you watch a show in French or turn on French subtitles, you’ll recognize a lot of English words. That’s in large part because although English is technically a Germanic language, it derives a great deal of its vocabulary from the French. Over 60% according to some linguists.” Wow, I did not know that.
Thomas: It’s not totally what I was saying, but that’s fine. I was talking about idioms and other languages, like how we have idioms that we would say, déjà vu, or you know-
Thomas: That’s what I was talking about. We were watching the show, I actually brought it up on the Q&A, The Investigation, and there were certain English phrases that they said. I wasn’t talking about like actual words, but-
Thomas: That’s okay, either way, still interesting.
Andrew: Well, and I love this bit of pedantry, I mean that in the best possible way. “After the conquest of England by William of Normandy in 1066 the English court was run by the Normands/French for a couple hundred years, and Anglo-Norman was spoken in the law courts, schools, and universities. A lot of French words came to replace or live alongside their English counterparts, giving the English language an extremely rich vocabulary.”
Andrew: Well, that was delightful. Great follow up on Banque Worms.
Thomas: Yeah, B-ahn-ka Vohrms. [Laughs]
Andrew: B-ahn-ka Vohrms!
Thomas: Yeah, good stuff.
Andrew: Thank you so much, Irene.
Lessig/Fractional Votes Correction
Thomas: And another – I don’t know what you were wrong about, that’s just kind of a fun follow-up. Were you wrong about something on Lessig and fractional votes that we wanted to talk about?
Andrew: I was 100% wrong on this.
Andrew: Super quickly, and I’ve got the link to one of his articles in the show notes. This was an interview he gave with The Harvard Crimson, and I think it is a severe impediment to the thing that Professor Lessig wants to do, and that is he wants to award fractional electoral votes.
Andrew: It would avoid some of the issues we talked about as a follow-up, but I think the text of the Constitution-
Andrew: -and its history would foreclose on that. [Laughs]
Thomas: What thing were you wrong about, then? What did you say?
Andrew: I did not realize that he wanted a fractional allocation of each electoral vote.
Thomas: Oh, okay.
Andrew: Because a vote-
Thomas: Is this from, we just kind of talked about how the math would work?
Andrew: Right, exactly.
Thomas: We’re describing it as one being the minimum, but I guess for him it wouldn’t necessarily be the minimum that you would assign?
Andrew: Yeah, you could get 0.23 electoral votes.
Thomas: Okay. How do you decide how many decimals to go?
Andrew: Yeah, and forgetting that, it is clear to me, again, maybe Professor Baude is listening to this one and will use this as proof of my latent Scalia-ism.
Andrew: An electoral vote is a person. It’s a person casting a ballot.
Thomas: Yeah. We’re gonna have to chop up some people! [Laughs]
Andrew: Yeah! [Laughs] Can’t make an omelet without chopping up a few electors!
Thomas: Originalists are like “you have to! Sorry! Constitution says you have to chop up people if you want fractional votes!”
Andrew: [Laughs] But I was wrong on that, I’m continuing to look into it. We will revisit the national popular vote I think very, very soon.
Andrew: Because I’ve got some additional thoughts on that.
Thomas: So the reason you kind of assumed that he wouldn’t be using fractional votes is because, in your opinion, it doesn’t seem like it would be very constitutional, is that right?
Andrew: I think it makes it a harder argument.
Thomas: Gotcha, gotcha.
Andrew: With the Supreme Court, yup.
Thomas: It was kind of about – you were trying to get his argument as good as it could be in your mind.
Andrew: Yup. That’s what I was trying to do.
Thomas: Alright, well, Banque Worms and fractional votes. Fun little Andrew was … I dunno. You’re barely wrong. [Laughs] But we like to be accountable, obviously, and great feedback. This was kind of a feedback show, a little bit, so that was fun.
[48:30.9] [Patron Shout Outs]
[1:00:08.6] [Segment Intro]
Thomas: And now it’s time for T3BE. This whole time I’ve been wondering if this [Laughs] it sounds like you’re saying the Sidney Powell thing is a different rule, I guess, because the hypothetical was in federal court. I dunno, we’ll see. How did I do? [Laughs]
Andrew: Alright, this is 50 year old nurse, hires a lawyers, says hey I was fired for age discrimination, I want to sue the hospital. Lawyer runs out, files a complaint, but as it turns out on the facts – and I want to take a tiny sidebar here.
Thomas: I was going to as well on this particular thing.
Andrew: Oh good! [Laughs] It says, the question says, as it turned out the hospital had hired a 52 year old man as the nurse’s replacement, a fact that rendered an age discrimination claim unavailable.
Andrew: Now, in reality I don’t know that that would be the case. There’s-
Thomas: I would hope not.
Andrew: Yeah, exactly. There are lots of –
Thomas: I was just thinking about it in terms of race. I was like what about – okay, let’s say you’re a racist, so, you know, you’re like a Trump voter, and you, let’s say you run a business, and you fire a Black man because you think he acts a certain way that you don’t like, but then you hire another black person that you think acts more the way – wouldn’t that still be racial discrimination in a way?
Thomas: Even though you hired a Black replacement, technically?
Andrew: Yup, absolutely. And you could hire a 52 year old that looks 30.
Thomas: Yeah, yeah.
Andrew: We see this all the time in Title VII litigation involving, now, discrimination on the basis of sexual orientation and gender identity, where in the past it was we fired a woman for appearing too butch.
Andrew: That’s actually language used in some Title VII opinions, I apologize for that. Then you hire, you know-
Andrew: Someone who meets the traditional notions, classical notions of femininity.
Thomas: Okay, I’m glad we did this, because I was thinking that didn’t sound right.
Thomas: But I was willing, because it’s a bar question, I was willing to just say okay, I’ll take it at the word that it’s gonna be unavailable and that didn’t really affect the question, did it?
Andrew: It does not.
Andrew: But it underscores – I was gonna make this point on last week’s very difficult conspiracy question.
Andrew: People are still talking about it and we had somebody – sorry, I’m forgetting your name, but shout out in the OA Facebook community who said well, look, I teach this subject [Laughs]
Thomas: Yeah, that helps.
Andrew: For practice bar exams all the time and you just need to know when the hypothetical says-
Thomas: I was gonna say the same thing.
Andrew: -there’s no meeting of the minds. [Laughs]
Thomas: I know, that is something I have really struggled with and I need to get better at in this test. There are times when it’s like I just need to realize the bar is giving me insight into mental states in a way that in real life you’d have to argue about it. You’d be like-
Andrew: Exactly right.
Thomas: What are you talking about? But the bar exam sometimes will just be like “here’s the mental state” and I need to just take it at its word.
Thomas: And sometimes you can’t-
Andrew: Otherwise they’d have no answers.
Thomas: Right, right. Sometimes you can’t take it- as a nonlawyer it feels like sometimes there is a dispute, but I need to identify that the question is doing that when it’s doing that. I’ve been bad at that.
Andrew: You’ll get better. So, the fact pattern tells us that this made this a bad claim.
Thomas: Sure. A bad court thingy. [Laughs]
Andrew: A bad court thingy. Then it says the hospital responded to the complaint by filing a motion for sanctions against the nurse’s attorney. Is the court likely to grant the motion? You immediately eliminated A, no because sanctions are not proper against the attorney of a represented party. That’s clownhorning nonsense!
Thomas: Okay, good.
Andrew: We just did half an episode! Of course sanctions can be proper against an attorney, and in fact we’re gonna talk about the specific rule of civil procedure that governs when you can move for sanctions against the other side’s attorneys. A is nonsense. You also eliminated D, yes because the nurse’s complaint contained legal contentions that were not warranted by existing law based on the facts in this case. That’s not a great answer.
Thomas: It felt a little too permissive of sanctions to me. A little too far, you know? Is that right or no?
Andrew: Well, now let’s get to the rule. The rule is Rule 11 of the Federal Rules of Civil Procedure. You’ll see why – this could have been raised against Sidney Powell as well.
Andrew: They chose not to. Rule 11 is when you challenge a pleading that a lawyer submits in court. It says “Every pleading, written motion, and other paper must be signed by at least one attorney of record … or by a party personally if the party is unrepresented. The paper must” identify who it is. Why do we have to sign it? Because – so subsection (a) says you’ve got to sign it.
Subsection (b) says, “By presenting to the court a pleading … an attorney … certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” the following four things. “(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for … discovery; and (4) he denials of factual contentions are warranted by the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”
What does that mean? That means you can’t file garbage pleadings.
Andrew: Garbage pleadings are ones that you know are designed to harass, are based on bad law, are based on facts that either have no support and could never have support, or are false. The key question here in terms of D – the way in which D would apply would be look, you should have known that-
Andrew: -they fired your client but replaced him with somebody even older, so this is a bad court thingy.
Andrew: The question is, what’s an inquiry reasonable under the circumstances? I have to say, I think even without the procedural defect that we’re about to talk about in a minute, I think it’s reasonable to say you can go into court and file a complaint and say “on information and belief, they fired my client because he was 50.”
Andrew: I’ve made the prima facie case, that is my claim is warranted by existing law. The question is, how much do I have to know about what their defense is before filing a lawsuit?
Thomas: Yeah. Right.
Andrew: I don’t think you have to know their defense before filing the lawsuit.
Andrew: Because when they say “right, but we now have a non-discriminatory reason in that we’ve replaced your client with somebody who’s even older.”
Thomas: Well, I didn’t know all that.
Andrew: The burden shifts back to me, yeah.
Andrew: [Laughs] Exactly right. In light of that, the two remaining answers were B and C-
Thomas: So you did eliminate D.
Andrew: We do eliminate D.
Andrew: That’s why. We’ll go through. C was yes because the nurse’s attorney failed to conduct a reasonable pre-filing inquiry, and as I just set forth I think that’s the best yes answer. But, Thomas, you picked B. B is 100%-
Thomas: And I got it wrong, alright! Another wrong answer everybody-
Andrew: No! Absolutely correct!
Thomas: Yay I got it right!
Andrew: Absolutely correct! [Laughs]
Thomas: Play the music!
Andrew: You said no, because the hospital failed to give the attorney the chance to withdraw the complaint in advance of filing the motion with the court. This is how Rule 11 sanctions are litigated.
Andrew: What you do is you send your motion over to the other side and give them a reasonable time to withdraw. This is subsection (c). It says, “If, after notice and a reasonable opportunity to respond, the court determines that [the Rule] has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. A motion … must be made separately … and must describe the …conduct… [It] must be served [to the other side] but may not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.”
Think of how sensible that is. Look, it’s super frustrating when you feel like the other side is acting in bad faith, but what it means is you say “hey, look, I’ve tried to get you to stop this. This is our motion for sanctions, we’re gonna file this in three weeks if you don’t withdraw your nonsense pleading.”
Andrew: And here’s all the facts on the basis thereof. Then they have three weeks to look at it and go “yeah, alright,” or “nope, line in the sand, we’re ready to go back to court and fight about this.”
Andrew: And they didn’t do that here. You know, because you can have this kind of – what seems like an honest mistake. I have been involved, and it would not be inappropriate for the other side – it would be a little bit of a jerk move, but it would not be inappropriate for the other side to write back and be like “we’re gonna file Rule 11 sanctions if you don’t withdraw your complaint because it’s going to be deficient as a matter of law because of facts X, Y, and Z.”
Andrew: I would look at that and go yeah, alright. Especially because the omniscient fact pattern has said I’m gonna lose, I’m gonna withdraw here. No opportunity was made to correct, you correctly surmised that there must be said opportunity, you got it right! Good work!
Thomas: Alright! Nailed it! That’s one out of … 20 [Trails off] I dunno. [Laughs]
Thomas: My percentage is so bad now, but we’re gonna see when the dust settles on the porked exam and if I can sanction Andrew. I’ll give him a chance, of course, to withdraw his porked test first so that, you know.
Andrew: Agreed, agreed.
Thomas: [Laughs] Alright, well, let’s find out who this week’s big winner is. Hop in that time machine, Andrew!
Andrew: Well, Thomas, this week’s winner is Hack Saw on Twitter who writes “Hellooooooooo, nurse! B, B, B, B, B, B!” I love the Animaniacs call out, I wanted to get in my Yacko there, and short, sweet, to the point. Also I like that apparently his first name is Hack! Everyone give Hack Saw a follow, that is @MrTheSaw on Twitter. And congratulations, Hack, on being this week’s winner.
Thomas: And that’s our show! Thanks so much for listening, everybody, we will see you next time!