Transcript of Opening Arguments Episode 313 – Devin Nunes Is A Crazy Cow Farmer

Listen to the episode and read the show notes

Topics of Discussion:

[Show Introduction]

Thomas:         Hello and welcome to Opening Arguments, this is episode 313.  Ooh, palindrome!  A little palindrome for ya.  How’s it going Andrew?  Oh, I’m Thomas, I’m doin’ fine, how’s Andrew doin’?

Andrew:         [Laughs]  I’m fantastic Thomas, how are you?

Thomas:         I’m great, I’m amazing!

Andrew:         Good, good!

Thomas:         I’m still so excited for our L.A. live show I can’t hide it, that’s how excited I am.

Andrew:         Is that a Pointer Sisters reference?  Or was that just-

Thomas:         [Laughs]  I wouldn’t be able to tell you what it’s a reference to, I just know that it is something and since it’s probably – now I’m guessing it’s from the ‘80s that means you got it.

Andrew:         Yeah, there you go! [Laughs]  

Thomas:         I’m so excited, of course, everybody is hopefully keepin’ an eye on their email and their social media for tickets.  We’ll see when they’re all available, that’s gonna be so great.  Okay!  We’ve got a fun show today.  It’s kind of a listener question heavy show, which is good because our listeners ask amazing questions.  But those listener questions are sandwiching a Devin Nunes segment which is sure to be-

Andrew:         [Laughs]  

Thomas:         -everything that we hope for.  Because legal genius Devin Nunes [Laughs] has gotten into some … I don’t know, something.  I don’t even know what, I just know that there’s crazy lawsuits and cows involved, so we’ll find out all about that in the main segment.  Alright, but first, here we go!

Listener Question 1 – Ted Cruz Saved by Bills of Attainder Clause

[Segment Intro]

Thomas:         It’s Andrew – well, actually it’s a combination listener question plus maybe Andrew Was Wrong, we’ll see.  Here we go, here’s the question from Zachary Silver, “I’m a 3L at Cardozo Law School.  At the live show when discussing the hypothetical ‘Poke Ted Cruz’ Act, Andrew mentioned that Cruz would be saved by the one thing he hates most, substantive due process, however Andrew said we could get that law (the Poke Ted Cruz Act) if the howler monkey contingent threw out substantive due process.  Wouldn’t Cruz be saved by the Constitution’s prohibition on Bills of Attainder?”

Andrew:         Yeah, Zachary, great question, great point!  This was an off-the-cuff joke question at the live show involving being able to commit various offensive conduct, and poking Ted Cruz wherever he goes.  Zachary is exactly correct here, so it is an Andrew Was Wrong, and it sort of paves the way for an interesting Supreme Court case, so I thought we would tackle it. 

Bill of Attainder Definition

Article I, Section 9 of the United States Constitution says (and Article I is the powers of Congress), Article I, Section 9 – Article I of the Constitution is what establishes the powers of Congress, Section 9 contains various limitations, there’s like ten of them.  And one of those is “No Bill of Attainder or ex post facto Law shall be passed.” 

So what is a Bill of Attainder?  A Bill of Attainder is when the legislature historically has said the act of the legislature itself has been to say we think you’re guilty of a crime and so for whatever reason, right, like because you’re politically connected or for whatever reason, the Executive has not arranged for you to be arrested of that crime, so we’re going to say it in the law. 

So the principle of Separation of Powers is the idea that Congress doesn’t have the ability to declare somebody guilty of a crime in legislative action, which makes total sense.  Now, you might be thinking “ah, but the Poke Ted Cruz Act just says we can run around and poke Ted Cruz” it doesn’t say “Ted Cruz has committed a crime.”

Thomas:         By the way, I think you should wear gloves ‘cuz I think his blood is actually acidic to humans, you know?  It’s like-

Andrew:         Yeah it’s like The Alien, right? [Laughs]  

Thomas:         -Like the X-Files, yeah I was trying to think of what I was referencing, it’s the X-Files, so wear gloves if you’re gonna poke Ted Cruz.  Just a safety tip!  We don’t wanna, you know, injury anybody.

Andrew:         [Laughs]  Yup!  And now I will point out, Zachary anticipated this.  He says in the lengthier part of his answer he says “generally a Bill of Attainder is a legislative declaration that an individual is guilty of a crime” (that’s what I said) “the Supreme Court has said, they previously struck down in a case called U.S. v. Lovett a federal law that precluded funds from being paid to specifically named individuals because Congress determined that they were being (quote) ‘subversive.’  In so doing the Supreme Court held that a Bill of Attainder: One, specifically identifies the people to be punished; Two, imposes punishment, and; Three, does so without the benefit of judicial process. So unless I’m missing something it seems pretty easy that the Poke Ted Cruz Act would be a Bill of Attainder.” 

And, again Zachary, absolutely correct!  I thought it was worth kind of doing a little bit of a deep dive into – a mini deep dive, as it were-

Thomas:         A shallow dive!

Andrew:         Yeah! [Laughs]  

Thomas:         Into a kiddie pool!

Andrew:         Yeah, what’s a deep dive but it’s a quick deep dive?

Thomas:         [Laughs]  

United States v. Lovett, 328 U.S. 303 (1946)

Andrew:         So, U.S. v. Lovett takes us back to 1943 and there were three guys who were longstanding civil servants.  Their names were Lovett, Watson, and Dodd.  They worked for Executive branch agencies and the Executive branch wanted to continue to employ them, right?  And was like, “yeah, no, these guys are great!  They are career civil servants.”  This was, however, while not full blown McCarthyism era-

Thomas:         Hmm.

Andrew:         This was a concern in which there was a member of Congress who was blustering about the influence of communists in the government.  And in fact his name was Congressman Martin Dies, the House – I mean we know Joe McCarthy from the House Committee on Un-American Activities, um that committee was established in 1938 and it was named after Dies, so it was initially called the Dies Committee.  I did not know this until I started reading the cases. 

So we all know what the House Un-American Activities Committee did, conducted secret investigations, made lists of people and organizations who were subversives, who were communists – who were suspected communists.  So as a part of this, in 1943, Congressman Dies said that those three guys that we just talked about were (quote) “affiliates of communist front organizations.”  They were (quote) “irresponsible, unrepresentative, crackpot radical bureaucrats.”

Thomas:         Wow.

Andrew:         And so Congressman Dies told the House-

Thomas:         How can you really be a radical bureaucrat?  Doesn’t that seem like a contradiction?

Andrew:         [Laughs]  Yeah I’m thinking of the bureaucrats from Futurama now!  [Laughs]  

Thomas:         Yeah!  Oh, okay.  [Laughs]  

Andrew:         [Impersonation] “Regulations?  I was on the subcommittee that produced an advisory report regarding the color of the paper that went in that! [Laughs]  We kept it gray.” 

Yeah, so you have this anti-communist Congressman thundering about, you know, subversive bureaucrats infiltrating our government.  This worked.  He ordered Congress – well, he instructed Congress to refuse to appropriate money for their salaries under the Executive Agencies.  He said “look, they hold a government position so we can just pass a law and take away their specific salaries until they fire ‘em.  We can’t direct the Department of the Treasury to fire these guys but we can say, we’re the Congress we have the power of the purse, we control the money, we can say we’re not gonna spend any money on them.” 

And so [Sighs] yeah.  [Laughing]  He got an amendment passed to the Appropriations Bill which said (quote), “no part of any appropriation contained in this act shall be used to pay the compensation of,” and then it named those guys individually.  It actually named 39 specific people because of course it did!  ‘Cuz this was the House Un-American Activities Committee and even in 1943 it had already run amok.  Those three guys sued and they said “this is a Bill of Attainder, we have been adjudicated guilty of being communists without anything remotely resembling due process.”

Thomas:         And to be fair, yes! [Laughs]  

Andrew:         [Laughs]  

Thomas:         Like of course they have!  Jeez! 

Andrew:         Yeah, and this was a 6-2 decision.  Justice Jackson did not participate because he was busy chairing the Nuremberg trials at the time, that was kind of an important thing to do.

Thomas:         That’s kind of important, yeah!  Wow.

Andrew:         And Felix Frankfurter and Justice Reed concurred.  So technically it was an 8-0 decision, but there was a concurrence that said “we shouldn’t address the Constitutional question, we can construe this law very, very narrowly and by construing it narrowly we would say that it forbids dispersing agents of the Treasury to pay out specifically appropriated sums to compensate Respondents for their services,” if we interpret it that way then they could still get a Writ of Mandamus to demand that the government generally pay their salary so there’s no case or controversy. 

So those two justices said let’s not wade in to the murky waters of whether this constitutes a Bill of Attainder.  The six justices joining the majority opinion waded into those waters and they said, yeah, look, even though you tend to think, and historically our cases have said that a Bill of Attainder applies to a criminal conviction, to an actual crime, it’s pretty clear that this is in the same vein and of the same spirit as adjudicating a criminal conviction. 

This is penalizing someone, in this case saying they can’t get paid, without due process of law and that’s because of a determination that the Congress has made specifically and that determination is not within the powers of Congress to make.  So totally correct! 

The only thing that I would say, that I would quibble with Zachary on a little bit was, I had initially cracked the joke at the live show that Ted Cruz was going to be saved by a liberal construction of substantive due process, I will point out this is a fairly liberal reading of the Bill of Attainder clause!  If you’re a Ted Cruz style Originalist I think you have a very, very strong argument that Bills of Attainder applied only to Congress saying “you are guilty of this crime and will be punished.”

Thomas:         Oh.

Andrew:         So it would also be prohibited under Bills of Attainder, but Ted Cruz would also be hoist by his own petard [Chuckles]

Thomas:         Yeah, there’s no shortages of petards to-

Andrew:         [Laughs]  

Thomas:         -with which to hoist Ted Cruz.

Andrew:         Yeah, the Hoist Ted Cruz’ Petard Act!

Thomas:         [Laughs]  

Andrew:         That we can pass.

Side Note – Petard Hoisting

Thomas:         Did you know – okay, I always thought “hoist” sounded like a petard was gonna be like some sort of spear that was hoist upon you?  Turns out no!  Is it some sort of explosive I think, right?  Do you know this?

Andrew:         I have no idea what a petard is, so…

Thomas:         Oh.  Well, everybody, I just like saying something like that so that when I’m wrong everybody can yell at me.  But no, I’m pretty sure – I always thought it sounded like – yes whatever it is is all Olde English weird gobbledy-gook.  Hoist by your own petard, but to me a hoisting sounds like “oh I’m gonna hoist you with this spear” or something, doesn’t it?  But no, I don’t think it is. 

Andrew:         Yeah.

Thomas:         Anyway.  [Laughs]  Useless-

Andrew:         If only we could, you know, summon Shakespeare to explain what he meant by that phrase.

Thomas:         Yeah!  Do we have a no live Googling policy on this show?  I can’t remember.

Andrew:         No, Google!  Google away! 

Thomas:         Yeah, a petard is a small bomb used to blow in doors and breach walls.  There you go.

Andrew:         Well!

Thomas:         So if you become hoist by it?  I still don’t know what hoist is, but-

Andrew:         Right.

Thomas:         -it’s from Hamlet.

Andrew:         I learned two things in this segment, then!

Thomas:         [Laughs]  

Andrew:         That’s what I love about this show.  Thanks, Thomas!

Thomas:         Yeah, hoisted means “blown up.”  Weird.

Andrew:         Huh.

Thomas:         So there you go.  Look, I’m contributing knowledge too!

Andrew:         Yeah, absolutely!

Thomas:         In my own way!  So anyway there’s no shortage of petards that Ted Cruz can be hoist upon, or by I guess.  So there you go.

U.S. v. Lovett – Loose Constructivist Decision

Andrew:         So it’s interesting, in the Lovett decision, you can see the Court kind of wrestling with this idea of loose constructivism. 

So their argument is: this is really like Congress invent – because being subversive was not a crime, that was the primary argument that the House on Un-American Activities Committee was making in response, and you could see the Supreme Court – and again, boy I wish we had a Supreme Court like this today – going, well it seems crazy to say – yes, writing a bill that says “Thomas Smith committed burglary and therefore shall be arrested” is bad, but the idea that you would say “Thomas Smith is a horrible human being and therefore he doesn’t get any money,” that’s worse!

Thomas:         That’s fine!  Yeah!  [Laughs]  

Andrew:         Right, the idea that it’s not specifically a law yet that makes it even worse, right?

Thomas:         Yeah.

Andrew:         And so here’s what the Supreme Court says, they say, “[t]he fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal.  No one would think that Congress could have passed a … law stating that, after investigation, it had found Lovett, Dodd, and Watson ‘guilty’ of the crime of engaging in ‘subversive activities,’ defined that term for the first time, and sentenced them to perpetual exclusion from any government employment.” 

So think about that analysis.  It’s saying what this is effectively doing is creating a new crime that only applies to these people and then finding them guilty of that crime, and we’re not gonna let you evade that by saying “well this isn’t a crime that applies to everybody else” of course it’s not a crime that applies to everybody else!  That’s kinda the whole point here!

Thomas:         [Laughs]

Andrew:         You’re going after these guys!  So, you know, just a nice nostalgic illustration of an era gone by in which the Supreme Court was not afraid to use basic common sense in figuring out how to construe the law as opposed to digging through and figuring out exactly what Bill of Attainder meant in 1789.

Thomas:         Alright, well there you have it!  I love it.  Yeah, the idea that it would be fine as long as they’re not convicting somebody is just the kind of thing I would expect from Originalist nonsense.

Andrew:         [Laughs]  And indeed, you would get it!

Thomas:         There you go.  Alright, well we are going to take a quick break and then we’ll talk about Devin Nunes’ cow.

[Commercial – lighstream.com/oa for an interest rate discount on credit consolidation]

Devin Nunes – RICO Complaint Against Fusion GPS and CFA

Thomas:         And we’re back!  Tell us what Devin Nunes has gotten into this time! [Laughs]  

Andrew:         Yeah!  So Devin Nunes has, as we predicted, lost on a Motion to Dismiss his defamation lawsuit against, I think all of Twitter?  Anyone who’s ever made fun of him, which is a lot of people-

Thomas:         [Laughs]  

Andrew:         Against the “Devin Nunes’ Cow” Twitter account.  Just a crazy, crazy lawsuit that we previously covered on the show, but Devin Nunes apparently has some kind of quota or retainer agreement with his lawyer where he can’t slip below one crazy nonsensical lawsuit at a time, right?  So there’s a one-to-one correspondence of Nunes crazy lawsuits, so he’s filed a brand new one! 

This is a [Laughing] lawsuit alleging a civil RICO claim against a consumer watchdog organization that is allegedly in cahoots with Fusion GPS and its CEO Glenn Simpson in conjunction with the Steele dossier.  This is delightfully mad and I am so pleased that we get to cover it!  Lots of people sent it to us, but yeah, the day before we recorded this is when Devin Nunes decided that it was time to file a new lawsuit

So we know how we read a Complaint, you start at the bottom-

Thomas:         Hand it to Andrew Torrez and say “please tell me what this says!”

Andrew:         [Laughs]  

Thomas:         And I trust your opinion.

Andrew:         You start at the bottom, work your way up.  So this is a 34-page Complaint-

Background of Devin Nunes’ Attorney Steven S. Biss

Thomas:         [Sarcastically] Which prestigious law firm is handling this one?

Andrew:         So this is Steven S. Biss, who is the same guy who just lost on the defamation lawsuit, so not a great track record.  He does not have a website.  His email address, his professional email address is stevenbiss@earthlink.net which [Laughing] EarthLink, that’s like the discount AOL from 15 years ago!  I didn’t know that EarthLink still existed.

Thomas:         Well, since this is a live Googling show maybe I’ll Google it! [Laughs]  

Andrew:         [Laughs]  

Thomas:         EarthLink…

Andrew:         I mean that is definitely the kind of email address that like your great grandfather has in which, you know, he uses to send out things that are debunked on Snopes. 

Thomas:         [Laughs]  

Andrew:         So, yeah!  So that’s the dude.  I did a quick Google search on Steven Biss because of course I did.  He has no ranking from Avvo, which is the major online ranking of attorneys, and in connection – but what Avvo does report is all disciplinary proceedings, and Biss had his licensed practice law suspended in 2008, suspended again in 2009 and then he was publicly reprimanded in 2010.

Thomas:         [Laughs]  

Andrew:         So let’s go through that!  We have talked – and, again, I don’t know, I was not able.  I did look for the Attorney Grievance Commission proceedings against Biss and I could not find them, that’s not to say – they may be sealed, I don’t know, I could not find them.  Having your license to practice suspended is a very, very serious sanction.  He’s had that twice. 

Thomas:         Wow.

Andrew:         And then the difference between a sanction and a public reprimand is exactly what it sounds like.  A public reprimand goes out there and is something that potential clients can observe and say, “oh, look, this guy was publicly reprimanded for conduct unbecoming to the law” without suspending the lawyer.  Now it’s kind of shocking to me if you are a two-time offender that the third time around that you would only get the reprimand.

Thomas:         Yeah.

Andrew:         But there it is.  Under the Virginia Code of Professional Ethics it says (quote), “typically in this case the lawyer’s poor behavior is exposed to the public in hopes that he or she will not repeat the behavior” (end of quote).  So there’s your lawyer-

Thomas:         [Laughs]  Three times and then you hope on the third time you’re still hoping that, or?

Andrew:         Yeah, I guess.  Your sternly worded letter.

Thomas:         Yeah.

Andrew:         So there we go, that’s your lawyer.  Now we look up-

Thomas:         And I’ve been Googling EarthLink!  [Laughs]  

Andrew:         [Laughs]  And?

Thomas:         Did you know in 1996 EarthLink was named “Internet Company of the Year!”

Andrew:         Hmm.

Thomas:         So this lawyer probably got dialup internet with EarthLink that he had until 2012 and then everybody’s like “this is not how this works anymore” but he still had the EarthLink email and then now he probably has the worst form of DSL internet through EarthLink?  That’s just my guess.

Andrew:         [Laughs]  I’m guessing you’re right!

Thomas:         It’s speculation!  We always wanna say when we’re speculating on this show, that’s speculation but I’m also 100% sure that’s what happened.

Andrew:         [Laughs]  

Thomas:         [Laughs]  

Andrew:         Don’t take legal advice from a podcast! 

Request for Relief

Alright, so then we move our way up and let’s look at the Ad Damnum Clause, that is the Request for Relief, and it says, “Plaintiff wants compensatory damages in the amount of $3.3 million dollars,” he writes “three-fold damages,” I’ve yet to meet a lawyer that doesn’t call them “Treble Damages,” but whatever, “three-fold damages in the sum $9.9 million dollars” and again, I would point out that you don’t get both, right?  [Laughs]  If the statute – and we’re about to get there – provides for treble damages you get the treble damages, you don’t get treble damages plus your original damages.

Thomas:         It’s not like our Patreon rewards-

Andrew:         Yeah.

Thomas:         -where it’s like everything from the single damages from the Patreon level plus treble damage level!

Andrew:         [Laughs]  Yeah!  That would be quadruple damages!

Thomas:         [Laughing]  I was gonna say, there is a word for that! [Laughs]  

Andrew:         Aah!  “Punitive damages in the amount of $350,000 or the maximum amount allowed by law, disgorgement of all income and profit obtained by the enterprise from or as a result of the alleged racketeering activity,” okay, that tells us we’re gonna have a RICO claim, “injunctive relief, dissolution or reorganization of Fusion GPS and CFA” we’re gonna look up what CFA is, “to prevent those Defendants from engaging in wrongdoing in the future, pre-judgment interest, post-judgment interest, attorneys fees, expert witness fees and costs, and such other relief as is just and proper.”  Okay.  Dissolution or reorganization of Fusion GPS as a company, um…

Thomas:         Yeah, what?  Why is Fusion GPS involved in this?

Andrew:         That seems – so we’ll figure that one out. 

Parties to the suit

CFA is the Campaign For Accountability, Inc.  So now what we’re gonna do is, since we don’t know who these people are we’re gonna scroll on up to the identification of the parties section.  That always comes at the very front of the Complaint. 

You will also notice, I don’t know why, I guess because his lawyer is 200 years old, that like there are random sections of the Complaint that are in 14 or 15 or 16 point font?

Thomas:         [Laughs]  

Andrew:         I’ve literally never seen this before.

Thomas:         Aaaah!

Andrew:         So “COMPLAINT!” is in 16-pt font instead of normal 12-pt font like you would normally have.

Thomas:         Well he’s still using Microsoft Works, so…

Andrew:         [Laughing] Yeah, the intro paragraph that says “Plaintiff seeks $10 million dollars” the $9.9 million dollars is written in super huge font too?  Again, I’m just pointing out that this person is a crackpot. 

Anyway, let’s go to the parties.  So first we identify the parties there is [Laughs]  I guess not surprisingly the paragraph introducing who Plaintiff Devin Nunes is, that should just say – the reason you identify who the plaintiff is is for jurisdiction and venue issues, so you would say “Plaintiff is a citizen of California and he has standing because of ‘X.’” 

This paragraph goes on for almost two pages.  It points out that Devin Nunes is the author of the book Restoring the Republic which was published in September of 2010!  He was born in Tulare California!

Thomas:         What?

Andrew:         His family is of Portuguese decent having emigrated from the Azores to California – like none of that is sensible.

Thomas:         He’s like “here I’ve got some pages from my memoir in my autobiography that we can just paste in here!”

Andrew:         Yup!  Yeah, that’s literally, it is pasted in from his House – nunes.house.gov/about page, so – you wouldn’t do this.  So then it identifies who Fusion GPS is, a Delaware LLC headquartered in Washington, D.C. as is typical of this delightful Complaint it says – so first it identifies the party which is what you do as a lawyer, and then you don’t do this unless you’re this guy:

Thomas:         [Chuckles]

Andrew:         “In truth, Fusion GPS is a political war room for hire that specializes in dirty tricks and smears.  As a regular way of doing business it smears the opposition on behalf of its undisclosed clients.”  [Laughs]  

By the way that’s listed as a “Fact” claim as separate from: “On information and belief, many of Fusion GPS’s clients, agents, and donors are located in Virginia.”  Notice that he’s plugged that in because that’s a crucial allegation in order for the court here, because this was filed in the Eastern District of Virginia, in order to have jurisdiction over a foreign corporation you have to make allegations about that foreign business – here, LLC, not corporation – but you have to make allegations that that business entity does business in or otherwise is subject to the jurisdiction of the State in which you’re bringing this lawsuit.  That’s the reason you have these paragraphs, right?  So, you know, he’s taken real law and then larded nonsense on top of it. 

So all this salacious stuff about Fusion GPS and then we get to CFA.  And remember, CFA is the Campaign For Accountability, and again, we get the same thing:  “The CFA is a dark money partisan left-wing 501(c)(3) nonprofit organization that uses the Freedom of Information Act, litigation, and aggressive communications to target” (that’s “sternly worded letters” by the way) “to target government officials, principally conservative Republicans” [Laughs]  Okay?! 

Then there’s an additional paragraph, and again, this should be in an allegations section, but, you know, whatever, this guy’s a nut.  “On August 1st, 2019, the Daily Caller revealed that CFA engaged Fusion GPS as an independent contractor in 2018 and paid Fusion GP nearly $140,000 for unspecified research.” 

So there you have it.  We’re gonna go back and show how this interacts with the nonsense Complaint later, but that’s what this lawsuit is about. 

In Devin Nunes’ demented mind, which is being stoked by the Daily Caller, he thinks because this watchdog group, the Center For Accountability, hired Fusion GPS and because Fusion GPS, three years earlier put out the Steele dossier, rabble rabble rabble, conservative conspiracy.

Thomas:         [Laughs]  Connect the dots, Andrew Torrez, you sheep!

Andrew:         Yeah, that literally is what this lawsuit is about.

Thomas:         So this could’ve been a “Law’d Awful Lawsuits.” 

Andrew:         This absolute could be a Law’d Awful Lawsuits. 

Causes of Action

So then we go back down – we detoured a little bit to look at the parties – we go all the way back down to the bottom, page 32, work our way through the complaints, and the complaints are, there are three different causes of action:  RICO, RICO conspiracy (which you don’t need to plead those separately but whatever), and common law conspiracy.  This is a RICO claim.

Thomas:         Here’s the dumb question.

Andrew:         [Excited] Uh-huh?! [Laughs]  

Thomas:         I thought RICO was something that like prosecutory law enforcementy people would use as a part of law enforcement, not that a private citizen would – or is there some, like, way that you can try to charge people with RICO stuff as a citizen?

Rico criminal v. civil statute explanation

Andrew:         That is a great question!  So RICO is in fact a criminal statute.  That is 18 U.S.C. § 1963, but it also there is – and it is sometimes referred to as “Civil RICO,”

Thomas:         Oh, okay.

Andrew:         Section 1964 allows individuals who are harmed by the racketeer influenced corrupt organizations by their activity, to sue them privately and get their money back.

Thomas:         Oh.

Andrew:         And so you can understand that, right?  So RICO was designed to fight the mob.

Thomas:         What money did you lose?

Andrew:         Yeah.  I’m sorry?

Thomas:         You said “get their money back,” what money did he lose?

Andrew:         Oh we’ll get there! [Laughs]  

Thomas:         Okay.

Andrew:         But that’s why your impulse is the right one.  You see RICO claims being brought by the Department of Justice because they are investigating corrupt organizations, they’re investigating the mafia, but the law was also passed to allow that to kind of proceed on multiple fronts, on the idea that hey, if the mob goes after somebody that has the private resources to bring separate lawsuits, yeah!  A, we want them to get their money back, and; B, we want as many different avenues as possible to go after the mafia.

Thomas:         Fair enough.

Nunes Damages – Claimed versus actual

Andrew:         Now you did ask kind of the hard question here. [Laughs]  Which is, what money back?

Thomas:         [Chuckles] Yeah.

Andrew:         And I will tell you, again we’re sort of skipping around in the Complaint a little bit because this took me a long time to try and parse it out.  So I’m gonna explain the elements of RICO in a minute, but I wanna answer your question which is, Nunes says his actual damages are $3.3 million dollars.  The way in which he calculates this is, only once in the entire Complaint, and it is in the Summary section, paragraph 72 says “Fusion GPS was paid $3.3 million dollars in 2017 to continue the campaign against President Trump.” 

Thomas:         So therefore Devin Nunes should get that amount?

Andrew:         Look, and again, that is – we read in the Request for Relief, he wants compensatory damages in the amount of $3.3 million dollars and then trebled to $9.9.  That is a non sequitur.

Thomas:         It’s absolute nonsense!  It’s like he – especially when you talk about the RICO thing like “oh as a citizen you should be able to reclaim money that you lost” so it sounds like he’s saying they should have hired him to do this work.

Andrew:         [Laughs]  

Thomas:         But they went with Fusion GPS and so he lost out on that contract.  Right?  I mean, [Laughs]  what other logic would make any sense?

Andrew:         I suppose you could be forgiven for thinking that this lawsuit was put together in a logical way. 

Thomas:         [Laughs]  

Andrew:         Because usually they are.  No, the argument is “Fusion GPS produced the Steel dossier and was paid millions of dollars to put out a hit on President Trump and other conservatives.  Devin Nunes is a supporter of President Trump and is a conservative.  The Center For Accountability hired Fusion GPS in 2018.”

Thomas:         Okay.

Andrew:         And “The Center For Accountability encouraged people to file perfectly sensible ethics complaints against Devin Nunes.”

Thomas:         Okay.

Andrew:         Those are the allegations.  And I am not making it up.

Thomas:         So waiting for the next premise that ties those all together into-

Andrew:         [Laughs]  You will be waiting in vain!

Thomas:         Just forever.  I’ll be a skeleton with spider webs on me.

Andrew:         And again, I invite all of our listeners, page 24 starting at paragraph 56 – well actually page 23 starting at paragraph 51, this is-

Thomas:         I will definitely read that!  Andrew, tell me what that says!

CFA’s Role – Retaliatory Ethics Complaints against Nunes

Andrew:         The three retaliatory ethics complaints. 

So it says “On January 25, 2018 as news of Simpson’s perjury in connection with the Steele dossier” again, there’s 20 pages of just “the Steele dossier is nonsense” okay?  “As news was breaking, CFA, acting in concert with Fusion GPS, faxed an (quote) ‘ethics complaint’ (in scare quotes) against Plaintiff to the office of Congressional Ethics.  The purpose of Defendants first [Sarcastically] ‘ethics’ complaint was to threaten and intimidate Plaintiff, impede his communications with conservative members of the press, chill reporting of Fusion GPS and Simpson’s wrongdoing, and”  (again, Simpson, that’s the CEO of Fusion GPS)  “interfere with Plaintiff’s Congressional investigation into Fusion GPS and the Steele dossier and dissuade Plaintiff from making criminal referrals to the DOJ.” 

That is what he’s accused the CFA of doing, having its members file ethics complaints and file FOIA requests [Laughs]  against Devin Nunes. 

By the way, Devin, you’re a member of Congress!  Your constituents get to file ethics complaints against you!  Your constituents get to file FOIA requests!

Thomas:         If you don’t like it, retire!

Andrew:         Yeah!  Yeah, lots of Republicans are doin’ it these days!

Thomas:         Yeah, exactly!  [Laughs]  It’s all the rage among the Republican party!

Andrew:         Yeah!  Yup.  So that’s the argument.  “In addition to CFA, Fusion GPS recruited additional bad actors including political operative Liz Mair,” (that’s the person that ran the “Devin Nunes’ Cow” Twitter account that he just lost the defamation lawsuit against) “and encouraged and enticed them to participate in coordinated attacks upon Plaintiff.  Mair works for anonymous dark money clients.”  I could continue to go through, but this is the A Beautiful Mind style pegboard and string that Devin Nunes’ demented mind has put together.  Let’s assume that this is true.  By the way, I’m not talking about any of the – 90% of this Complaint is about the Steele dossier being wrong. 

Thomas:         [Laughs]  

Andrew:         By the way I’ve said from the beginning that I was highly skeptical of the Steele dossier, I continue to be, but boy over time the Steele dossier has become more plausible, not less.

Thomas:         Yeah.

Andrew:         Let’s stick with that.  How do you bring a Civil RICO claim?  A Civil RICO claim-

Thomas:         My answer?  Not like this! [Laughs]  

Andrew:         [Laughing] Not like this!  Yes, that’s right!  Well, I’ve already said how not to.

Thomas:         Yes.

Andrew:         So how do you do it, right? 

Thomas:         Well, before we tell people how to bring a Civil RICO claim why don’t we take a quick pause here and then they can find out after that?

[Commercial – brooklinen.com – get 10% off and free shipping code with code “OA”]

How to plead a civil rico claim correctly (unlike devin nunes)

Thomas:         Alright, so how does one file a Civil RICO claim?

Andrew:         So it actually is pretty straightforward which is kind of surprising that this guy was not able to allege the basic elements. 

You have to do four things in order to maintain a Civil RICO claim:  Number one, you have to prove conduct on the part of the Defendant.  Okay, that’s not hard.  Number two, it must be part of a criminal enterprise – it must be part of an enterprise.  Number three, there must be a pattern in the racketeering activity, and that’s number four, “of racketeering activity.” 

Elements two, three, and four are not even remotely alleged in this Complaint, and I believe that he’s going to lose on a Motion to Dismiss.

Thomas:         So this is one of those ones when you get this, you know, this is filed and then the other side, whoever the Plaintiff is which I honestly don’t know because the lawsuit’s so insane.

Andrew:         Well, Nunes is the Plaintiff, but the Defendants-

Thomas:         Oh sorry, whoever – I meant, yeah, sorry, whoever is the other… thing. [Laughs] What is that thing again?

Andrew:         The Defendants, yeah.

Thomas:         The Defendant.  Whoever’s the Defendant, which was it Fusion GPS or is it like the – who is it?  I actually don’t even know.

Andrew:         It is both, it is Fusion GPS, Glenn Simpson, and the Campaign For Accountability.

Thomas:         But they can be like, hey, even if this nonsense manifesto that’s written in crayon is true, nothing.  Right?  Can’t they do one of those?  Like, hey, even if true this is nothing.

Andrew:         [Laughing] Correct. 

Thomas:         What’s that called?

Andrew:         That’s a Motion to Dismiss.

Thomas:         So it’s just a – okay, basic motion, gotcha.

Andrew:         And that’s what they will do.  So let’s start at the ones that if you squint they’re marginally probable, and that is “is there an enterprise?”  Well, there’s a facial allegation that Fusion GPS and Simpson acted in concert with the Center For Accountability, but that isn’t supported by any facts.  The argument, the only fact that supports that allegation is that CFA hired Fusion GPS to do research.  Well, I can hire – right?

Thomas:         Yeah.

Andrew:         I have hired people to do research with whom I am not acting in concert.

Thomas:         I’m filing a RICO claim against you!  Now that you’ve hired someone to do a thing!

Andrew:         Yeah!

Thomas:         RICO.

Andrew:         Absolutely as a matter of law, engaging someone at arm’s length in a professional transaction is not acting in concert, is not “as part of an enterprise,” right?  Enterprise must have shared goals.  Look, and again, think back to – remember RICO is the mafia statute, so part of the reason that you wanted to have this statute passed in the first place is, how do you connect Johnny Tightlips and, you know-

Thomas:         Mm-hmm (affirmative).

Andrew:         Right?  That’s the point.  You show that they are part of a larger enterprise.  There’s no demonstration – there’s a bare allegation, there’s no demonstration that Fusion GPS and CFA are part of a larger enterprise except in Devin Nunes’ twisted mind where they’re all part of the liberal elite conspiracy to make him look stupid.  So that’s the first one, and it gets worse from here. [Laughs]

Then you have to have a pattern of concerted activity.  So a pattern means at least two acts, but the Supreme Court has said, (and various Circuit Courts of Appeal have said) that just having two acts alone – two acts is the minimum, but just having a couple of different times when people have acted in concert doesn’t show a pattern of organized activity, rather the acts in concert must amount to or pose a threat of continued criminal activity. 

And that is H.J. v. Northwestern Bell Telephone Co. and you know from it being Northwestern Bell Telephone Company that this is a 1989 case.  So the Supreme Court has said – and again, you can think about this – okay, you gotta prove that two people are part of an enterprise and then you have to prove that that enterprise really is engaged in a systematic pattern of criminal behavior.  If you can’t then you don’t get RICO. 

At minimum, the Supreme Court says, “the predicate acts for close ended continuity must span a period of at least one year or open ended continuity means that they can be any period of time, but there must be a specific threat of repetition extending indefinitely into the future.”  This lawsuit alleges that CFA once hired Fusion GPS, so that’s one time in 2018, with no risk of it continuing into the future.  So they’re not gonna get that.

And then, “there must be racketeering activity.”  I can’t go after you for – like if you and every member of your hockey team get together every Tuesday night and you play a game of hockey and you also conspire for ways to make fun of me, you may meet all of those criteria but, for now (until Elizabeth Warren is President and I’m able to get her to change the laws), making fun of Andrew Torrez is not a criminal act.  And specifically, even if it were to become a criminal act it wouldn’t become racketeering activity!  [Laughs]

Thomas:         Jeez, if it were one of your cohosts is gonna be in a lot of trouble.

Andrew:         [Laughs] Yeah, thanks Thomas. 

Thomas:         I’m not saying who.

Andrew:         I appreciate the support.  [Laughs]

Thomas:         Oh, no I’m just saying, you know, we poke fun at each other from time to time.  [Laughs]

Andrew:         It could be me!   [Laughs] Yeah, that’s true.  And I have a self-deprecating sense of humor, so it very well could be me.

Thomas:         It could be either of us!

Racketeering Activity definition

Andrew:         Look, look!  18 U.S.C. § 1961 subsection 1 defines racketeering activity.  This goes on for like three pages so I’m not gonna read the whole thing to you, but it means kidnapping, gambling, arson, robbery, bribery, extortion, or violating specifically named statutes, usually mail fraud, forgery, or sex trafficking, things like that. 

There is nothing, there is nothing in this Complaint that begins to allege that the activity is a racketeering activity!  There, again, there are bare allegations of fraud, fraud is really, really hard to prove.  This Complaint will not prove it and even if all of its true, even if the Steele dossier is nonsense, this Complaint is Larry Klayman levels of crazy, and I just couldn’t resist breaking it down.

Thomas:         That is amazing.  This is a United States representative!  [Laughs] And I love it too because Fox News is reporting this like he’s cracked the lid open on this one.  Like, he’s really Woodward and Bernstein-ed, he’s All the President’s Men-ed this.

Andrew:         [Laughs]

Thomas:         Like he’s really blown the lid off this story.

Andrew:         It’s, if anything you’re understating it.  Nunes has been in office, he’s a nine-term Congressman.

Thomas:         Wow.

Andrew:         He was, until we retook the House of Representatives in the 2018 midterms he was the Chairman of the House Intelligence Committee.  I’ll leave that! [Laughs]

Thomas:         Yeah.

Andrew:         He was the person who was in charge of the House investigation into Russian interference with the 2016 elections.  A conspiracy theorist crackpot who hires lunatics to write lawsuits that-

Thomas:         Who are still on dialup internet.

Andrew:         That a first year law student would have no problem saying – even if I believed – I mean, notice, I haven’t read any of the crazy – and believe me, you should read it!  The, like, pages and pages of screeds against the Mueller investigation and against the Steele dossier and the conspiracy behind Donald Trump and they cite the Daily Caller as evidence in their Complaint!  I mean, you know, other than the Daily Caller bit because it was necessary to parse through what was happening, I haven’t read the crazy, I’ve just read the structural problems.

Thomas:         Wow.

Andrew:         So this is not just, oh Andrew’s a lefty guy and he hates Devin, this is written in crayon smeared with your own feces on a napkin level of ridiculous.  And Devin Nunes will probably get re-elected.  [Sarcastically] Thanks gerrymandering!  Love that!

Thomas:         [Laughs]  Alright well that’s a lot of fun.  Good to know the fate of our country is in good hands there!  [Laughs] So let’s move on, maybe this’ll be – well I dunno if it’ll be a more cheerful topic, but at least it’ll take that bad taste out of our mouths.

Andrew:         [Laughs]

Thomas:         Let’s go on to a listener question from Cody, I’ll just say Cody Cool! 

Andrew:         [Laughs]

Thomas:         I dunno if that’s how you pronounce it?

Andrew:         I was gonna say Kuehl, but I’m gonna call him Cody Cool from now on ‘cuz that’s-

Thomas:         Cody Cool, if it’s not pronounced that way you should start pronouncing it that way!

Andrew:         It should be, yeah!

[Segment Intro]

Listener Question 2 – 2016 Clinton Campaign

Thomas:         Alright, “Andrew’s comment about Clinton not running a scorched earth campaign against Sanders in 2016 was dismissive to some point” (I don’t know what that means) “I believe that in 2016 we lost something in the primaries because Clinton was the presumptive nominee.   I think the party could have availed themselves to discuss policy, this would have allowed the Dems to popularize their views in the broader public.  I voted for Clinton but I’m open to the most vigorous debate about policy and a candidate’s record that we can have, so I’d like to know why you would have not preferred a robust policy discussion in a more public arena.” 

Well I think there’s a lot of bad faith interpretations in that question, to my taste, but I don’t think – if you were to ask Andrew Torrez “would you have liked a robust policy discussion in these debates?” I imagine that Andrew would say “yes,” so I feel like possibly you’ve misrepresented what Andrew has said, but that’s just me.

Andrew:         And let me be super clear about Cody Cool here, he wrote a long email, he had very complimentary things to say.  I don’t wanna – he’s a fan of the show, so I don’t feel attacked.

Thomas:         Kind of a weird sentence, but okay.

Andrew:         I feel like, that if it was not clear what I said, and I’m super interested in your opinion on this, that I want to make it clear on the show.  I am a fan of in depth policy discussion and bareknuckle debate on the merits of policy issues in the Primary.  I actually think we got a fair amount of that in 2016, right?

Thomas:         Yeah, I think we did.

Andrew:         And it’s one of the things that I pointed out, that, uniquely, that I wish more people gave Hillary Clinton credit for was that Bernie Sanders drove the debate on access to college in the Primaries, staked out a position to the left of Hillary Clinton, it was one of the ones that I think he was more correct about, and in the general election Hillary Clinton revised her education policy to accommodate more of the Bernie Sanders plan and that was an unabashed good thing.  So, yes, that part is true. 

Here’s to what I object, and I tried to make it clear but obviously it hasn’t necessarily come through so I think it’s worth clarifying.

Thomas:         Well I’m gonna go ahead and let you be totally clear.

Andrew:         Yeah, thank you, I appreciate that.  I’m glad you finally let me talk, too, that was [Laughs]

Thomas:         [Laughs]

Dem. Primaries – What Andrew Actually objects to

Andrew:         I object to poisoning the well and personal attacks that have the potential to undermine support within the Democratic party for a candidate as the eventual nominee.  Attack them on the policy as much as you want but stay away from the personal attacks and stay away from the kinds of characterizations and hyperbole that could undermine potential support.  I’m gonna give you an example just at random.  I typed in “Kamala Harris” into Google.

Thomas:         Hmm.

Andrew:         And on the first page is an article from Jacobin that is entitled “Kamala Harris has Matched every one of her progressive achievements with conservative ones.”  That’s the subheading, the title is “The Two Faces of Kamala Harris.”  As you read this in the very – in fact I’m going to read a little bit of it. 

“Harris’s rise has produced a fiery debate among liberals and the Left. Leftists and progressives have come out in strong opposition to Harris’s candidacy, with some declaring #NeverKamala and some high-profile Bernie Sanders supporters, such as National Nurses United executive director RoseAnn DeMoro, making clear their lack of enthusiasm for her candidacy. For some prominent liberals, this pushback is simply the product of virulent racism and sexism among an imagined (and non-existent) all-white, all-male, Sanders-supporting base. 

While most Harris-supporting liberals wouldn’t go this far, there is deep suspicion among some Democrats that opposition to Harris is motivated by similarly less-than-noble motives — namely, that it’s part of a project of poisoning the well for any potential challengers of a Bernie Sanders … in 2020.” 

That’s the characterization.  And so if you can’t – that’s the kind of thing that I would say marks the dividing line.  If you wanna say, “hey, I think Kamala Harris’ policies as Attorney General and I think the bills that she has sponsored or voted for in the Senate are bad for X, Y, and Z reason,” great.  When you say, “hey, never Kamala” and, by the way, the people pushing back at it are accusing us of being racist, but they’re really the racists and she’s really out there to try and destroy Bernie Sanders, that’s baseless speculation and the kinds of personal attacks that I think are nonsense.  And that’s the kind of stuff to which I object.

Thomas:         Yeah.

Andrew:         And it’s the kind of stuff that I think is toxic in the Primary.  So, Thomas, you.

Thomas:         The amount – the extent to which Bernie Sanders die-hard supporters think the world revolves around Bernie Sanders is amazing to me.  They think that, like – I literally was seeing posts and headlines that were like “the only reason Biden got in the race is ‘cuz Bernie has a chance!” [Laughs] It’s like, no, that has nothing to do with anything!  Like they have this whole conspiracy theory.

Andrew:         [Laughs] I mean, Joe Biden has run for President three previous times!

2016 Election – Legislative differences between hillary and bernie

Thomas:         Yeah, yeah!  Everything, just the world revolves around him and how he’s such a threat to the actual corporatist left that doesn’t want him anywhere near – it’s like, alright, come on.  Anyway, yeah, and I think this came up because we were talking about the gun law, right? 

Andrew:         Mm-hmm (affirmative)

Thomas:         The difference between Hillary and Bernie on that legislation and I actually think that possibly – okay, let me ask you this.  Do you think it’s possible that just – even maybe Hillary, as brilliant as she is and as especially detail-oriented and policy oriented as she is, do you think she maybe didn’t know the extent to which the votes, or that legislation was gonna come back to bite us?  ‘Cuz I feel like she maybe would have brought that up.  ‘Cuz it wasn’t as though she was holding back on arguing that point because they argued that, you know?  We did get the policy discussion.  I just think that maybe we didn’t get perhaps the deep dive that you gave us.

Andrew:         Yeah.

Thomas:         And maybe people didn’t realize how bad this legislation was fully.

Andrew:         Yeah, and look, there are two potential interpretations neither of which look great for Hillary Clinton so let’s air both of those.  Once could be not fully understanding the depths of the legislation.

Thomas:         Yeah, but that’s worse for Bernie, though.  If you’re gonna say it’s bad that Hillary maybe didn’t understand how bad this was, well at least she voted against it and Bernie voted for it! [Laughs]

Andrew:         Well that’s true.  And then a second is it could have been, and again I think this is highly likely, designed to kind of strattle the Clintonian thirdwave not wanting to alienate conservative Democratic voters by going hard on gun control.  So you go the right way in the Primary but you’re not absolutely committed to a full throated attack.

Thomas:         Hmm.

Andrew:         So you could see it as a cynical effort as well, and I think we should give vvoice to that.

Thomas:         I dunno, I remember her being pretty pro-gun control.

Andrew:         Yeah.

Thomas:         But my memory’s obviously not perfect.

Andrew:         Yeah, and look, there is – one of the things that I’m really, really pleased about is that that energy is going to be there in the Democratic Primary in 2020.  When we have the debates next week in light of the recent school shooting, the recent mass shooting that just happened, I think you are going to see the Democratic Party continue to give voice to an issue that we ran away from in the 1980s and 1990s.

Thomas:         And we’ll get Beto comin’ in, “Alright clownhorns!  I think these clownhorning guns have gotta go!”  He’s found his strategy-

Andrew:         There you go.

Thomas:         -of saying the “F word” a bunch of times and then everyone’s like “oh my gosh, this guy gets it.”

Andrew:         There you go.

Thomas:         Alright, well it is time for our patron thanks.  Thanks for the question, though.  Sorry Cody Cool, I didn’t mean to go hard on you or anything, I just feel like the questions were asked with a premise that I’m sure Andrew wouldn’t agree with so it seemed like maybe a pretty clear misstatement of Andrew’s position, but you know, didn’t mean to go too hard on you or anything. 

Alright, let’s thank our patrons!  So as we did last Friday, as we switched it up and thanked the new patrons last Friday, I know we did the switcheroo on you, so the other side of that is our Hall of Famers today!  I think that’s it, I think it’s time to than our top patrons, our hall of famers, our all time greats over on patreon.com/law.  I hope they’re enjoying all the goodies and also those tickets!  First crack at the Los Angeles live show tickets, keep an eye out on your email, patrons!

[Patron Shout Outs]

T3BE – Answer

[Segment Intro]

Thomas:         And now it’s time to find out if I turned it around on T3BE [Sighs] oh gosh, did I?  I don’t know.  Alright, T3BE answer time.

Andrew:         Alright, answer time.  So this was a contract question.  This involved kind of a complex hypothetical in the formation of contracts and as a spoiler, once again, you analyzed this question absolutely perfectly, Thomas! 

So, fact pattern, uncle mails his nephew and says “I’m thinkin’ about selling my pickup truck, you know the one, and I would consider taking $7,000 for it.”  May 3rd, nephew writes back and is like “yeah, I will buy that pickup for $7,000 in cash.”  It arrives to the uncle on May 5th, and then May 6th the uncle writes back and goes “okay you got a deal.”  Then while the letter is in transit, May 7th, the nephew has not yet received it, calls up the uncle and is like “yeah no I’m off on the pickup truck thing ‘cuz my license was suspended, what am I gonna do with a pickup truck?” 

So, the question was then, which is accurate?  Contract on May 3rd, that is when the uncle extends the first email – or [Laughs] the first email.

Thomas:         We know it’s not that!  We know the answer is C ‘cuz I said D.

Andrew:         Yeah, yeah.  Yup!

Thomas:         So it’s not A.

Andrew:         So here’s the thing, you eliminated May 3rd and May 5th, which were the good attractive distractors, right?  Because the uncle says “hey I’m thinkin’ about taking $7,000 for this truck,” nephew writes back, puts it in the mail on May 3rd, says “I’ll give you $7,000 for it” and it arrives on May 5th.  Regardless of whether the contract is effective upon mailing or upon receiving-

Thomas:         Either way it doesn’t matter, yeah.

Andrew:         There was not an offer and acceptance.  The initial statement “I would consider taking $7,000 for it” is just a solicitation for an offer, and then when the nephew says “hey okay, I’ll give you $7,000 in cash right now” that is the offer.  So that means the offer then becomes a contract when there is acceptance of the terms of the offer and then consideration is the $7 grand. 

So on May 6th the uncle mails the note that says “it’s a deal,” and so the question is, given that that’s in the mail but has not yet arrived can the offeror rescind his offer?  That’s the difference between C and D, you went with D, yes he can and I’m sad to tell you-

Thomas:         [Laughs]

Andrew:         The answer is C, you knew the answer was gonna be C.

Thomas:         [Sighs] Ugh this is awesome.

Andrew:         He’s accepted it.  And think about this, think about it this way.  Instead of viewing it as old timey letters image that these were emails.  At the moment when you fire off the response you’re like “yeah, deal, done” that completes the deal.  And so the question is can you take advantage of the delay in communications to change your mind?  And the answer under contract law is no.

Thomas:         It’s not really taking advantage of it, for all he knows the guy hasn’t even written a letter yet.

Andrew:         That is true, but the longstanding rule is as soon as there is acceptance, and that was with the mailing of the offer-

Thomas:         So that’s like as soon as there’s acceptance as in the old man thought in his brain “yes I intend to accept this” then there’s a contract?

Andrew:         [Laughs] He manifested evidence-

Thomas:         He has to write it down.

Andrew:         Yup.  He manifested evidence-

Thomas:         If he writes in his diary, “Dear Diary I accept this contract” then it’s – is that acceptance?  Or is it him putting it in the mail-

Andrew:         It’s him putting it in the mail.  It is, again, Saxony Law – well I guess slightly later because they used owls or something but it is the sub rule with respect to mail is designed to answer exactly your question.  The “I write it down in my diary,” well that’s not sufficient.  You have to communicate your acceptance to the offeror, so then you just have to pick a rule.  And you can pick the rule of it doesn’t count until it gets there or you could pick the rule of it counts the moment I stick it in the mailbox, and the contracts rule is-

Thomas:         Maybe that’s what I was remembering from my class.

Andrew:         Yeah.

Thomas:         Is there one where it’s like, or an example that was brought up was like as he’s on the way to mail the letter, where would that be?

Andrew:         Now I’ve gotta go off script here a little bit because I haven’t researched it, but I believe the answer is if he’s going to the mailbox and you call him up and rescind the offer than the offer’s rescinded.  It’s gotta be in the mailbox-

Thomas:         I think that might’ve been what I was remembering.

Andrew:         Yeah.

Thomas:         I think it was some example that the professor brought up that was like catching someone before they had put the letter in, it was something like that, and unfortunately I remembered it wrong but that’s okay, my job here is to get the question 100% right except the part where I say the right answer.

Andrew:         Yeah, exactly. [Laughs] And you did! 

Thomas:         I think I’m getting to the point where I really do need to just flip a coin because I cannot do any worse than I’m doing on these 50/50’s.  I’ve gotten every 50/50 wrong for like as long as I can remember which is four weeks ‘cuz I have kids so I don’t remember anything-

Andrew:         [Laughs]

Thomas:         I don’t even know if I remember four weeks.  I barely remember today.  But, yeah, it’s a bad streak!  What are the odds of that!  Somebody!  Saba!

Andrew:         Yeah!

Thomas:         Calculate the odds!

Andrew:         One of our math geeks will-

Thomas:         How often could I expect to flip a coin tails, what, eight times in a row?  I guess it’s not impossible, it happens, but it’s – how many have I gotten wrong in a row in this manner?  It’s been a lot.

Andrew:         Well, it’s six in a row.  So, yeah, that’s-

Thomas:         But that was interrupted by one and I think I had a bunch before that didn’t I?

Andrew:         You did, it’s been a bad run.

Thomas:         This is bad.  Well I suck.  Let’s find out who this week’s winner is, who I hope – all you need to do now is just tweet that you’re going with the other answer that I didn’t pick and then you’re right!

[Segment Intro]

Andrew:         Well Thomas, a bunch of folks chimed in with the mailbox rule on Twitter but this week’s winner is Raggs, @the RealRaggs who writes: “Noooooo! C. The mailbox rule.  Thomas’s analysis was right. He even said ‘mailbox.’ Do the opposite!” and then included the spectacular gif of George Costanza saying “Yes… I will do the opposite!”  Great reference, dead on early answer, correct from Raggs, everyone give him a follow.  That is @theRealRaggs and congratulations for being this week’s winner of T3BE.

Thomas:         Alright, well I’ll keep doing what I’m doing [Laughing] ‘cuz it’s working great!  Ah!  Thanks so much for listening everybody, can’t wait to see you at the [Singing] live shoooow comin’ up and also there’s gonna be a Law’d Awful Movies coming at you pretty soon so that’s a good reason to get on patreon.com/law, but otherwise we will see you on Friday.

[Show Outro]

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