OA309: Can Stormy Daniels Bring Down Hope Hicks?
The series like twist like twist any great trial and i suggest suggest that we give them ten years in leavenworth seventy five and ten worldwide <music> this rush. The judge was like this might not by honor i don't you it meant to come out here. Cutting the my side is the blood slugging lawyer loyd welcome to opening arguments a podcast that pairs inquisitive interviewer with the real life lawyer. This podcast is sponsored by the law offices of the andrew tour's l._l._c. for entertainment purposes is not intended as legal advice does not form an attorney client relationship. Don't take legal advice from a podcast alone welcomed opening arguments. This is episode so three hundred nine. I'm tom smith that over. There is andrew torres. How're you doing andrew. I'm fantastic thomas. How're you doing great because we are getting back to stormy time. I am so so excited. It's been too long. It's been too long since we talk. Stormy daniels on the show can't wait to hear the update. We also got some other. Good stuff planned you. We've got some <hes> some sheldon whitehouse talk. I know everybody's buzzing for some sheldon whitehouse just as much as stormy daniels and also also. We're gonna answer and probably andrew. I'm guy most likely andrew will answer the question why the man act didn't apply to epstein question mark <hes> uh-huh interesting all right before that <hes> little little update from you yeah <hes> i i think that <hes> thomas you and i are going to have to do another music episode soon <hes> we we still get like three to four katy perry comments of per week <hes> that <hes> everybody everybody is just <hes> everybody has an opinion about that and as of today i got the news that eminem is suing spotify. Although oh except nah that was yeah it was later walked back that it was his record label and not him. I you know so <hes> you know. We got <hes>. We get some music. Get some legal music. Maybe we can do like a music slash baseball episode right but <hes> no one can listen the man that we could talk about asking her democratic <hes> nomination fancy team and then we've we've got a sure hit can't wait. No i think <hes> i think i think people have liked the music episodes and <hes> there's there's always more music la <hes> <hes> sunday we talk about that george harrison a rip off of that one song because i think there are people don't think that was a good decision should before anyway yeah. That's that's an interesting case. It's sort of like how michael jackson owned all the beatles rights you know so like i think that's what's going on with the eminem thing is he didn't even yeah no yeah. The sun was suing on his behalf but anyway okay so with that said we need to get to the sheldon whitehouse. Talk that we're all promised uh-huh chanting sheldon whitehouse shut a senior notes here andrew that sheldon whitehouse listen to the show and it's sorta like that <hes> futurama jokers like wow these app branagan these app brannigan so who is the sheldon whitehouse so so sheldon whitehouse is the democratic is a democratic senator from rhode island <hes> and he has done a couple of things that that i really really want to shout out here on the show <hes> i in april of this year. He put together a briefing paper thirty one page briefing paper <hes> for the american constitution society <hes> that was the group that cosponsored my debate with justin walker in louisville louisville <hes> they are attempting to sort of carve out a space as a counterweight to the federalist society that briefing paper is entitled a a right wing route. What the roberts five decisions tell us about the integrity of today's supreme court and what he does is go through his methodology is to look through the past twelve years of supreme court decisions right beginning with at all on the roberts court so from two thousand five through the end of the twenty seventeen twenty eighteen term so it it does not count this last supreme court's terms decisions <hes> which were as we've covered on the show <hes> egregious the the top line finding that <hes> that senator white house documents is why don't why throw this way do you have if if i were to tell tell you <hes> there were several hundred decisions right two hundred twelve to be precise five four decisions decisions over that time period of those two hundred twelve there are lots of different right and this is one of the difficulties in methodology ethanol g right is that you know you'll sometimes see oddball alignments on cases of no political significance and so you know politico will rush forward to be like ruth bader ginsburg sides with brad kavanagh so of those two hundred twelve five four decisions seventy seventy eight of them. <hes> were split five four where a and again the membership has changed over the years <hes> but none of the but it's always been a a five four or five three split right <hes> none of the liberal justices joined with the conservative block right. That's what and sheldon whitehouse calls them seven seventy eight of those cases of those seventy eight cases. How many do you think had clear political implications seventy eight yeah seventy-three so growth so there yeah so there are a handful of them in those seventy three cases which white house divides into four categories one controlling the political process to benefit conservative candidates to protecting corporations nations from liability and letting polluters pollute three restricting civil rights and rolling back anti-discrimination laws and four advancing advancing a far right social agenda right that is i think pretty narrow right like you could you could certainly argue other things have political affiliations agents but those are things that the average person would look at it and go yeah okay. We're right like the these are unquestionably political cases that that <hes> you know what the democratic result is and what the republican result is right. You know what the left wreck widow. When it's gay marriage you know who's was on what side for for pro gay marriage who's anti-gay marriage right. Who's pro <hes> you know. Civil rights anti civil rights who's of those <music> seventy three cases that fit into so so number one it is remarkable that of those seventy eight cases that split on ideological michael lines they split over ideological cases right you would i would expect a greater number than that just from sheer chance right. That's a mathematicians right in so you know maybe get another combinator works of <hes> two hundred and twelve decisions <hes> what what's the likelihood that you're gonna get a five four ideological split on a non ideological decision. I would think it'd be greater than five attitude twelve but maybe i'm wrong. <hes> of those seventy three cases which there's an ideological split along ideological lines for political issues. The conservative votive block ruled in an unpredictable way how many times unpredictable way zero times zero zero times right and again again like that's it. I mean on the one hand right. We're we're all kind of cynical especially show listeners <hes>. Maybe it's a dumb moment and <hes> i. I don't believe this would be true for any other period in american history near miami the period again what what what years us two thousand five five to to the end of the two thousand seventeen term which is spring summer two thousand eighteen right so it does not include the last twenty eighteen to twenty one thousand nine term which of course which as you said yeah it would be even worse yes which would which would make these numbers but i guess i'm saving my reaction for it seems like you're starting with one side of the data so like are we gonna find out you know when when it was democratically decided five fours or some comparable comparable numbers or no oh no there is no. I'm not trying to set you up in that way. Whatsoever <hes> i am telling you on face value and and this is worth i'm going to link the brief in the show notes <hes> because it contains in the appendix <hes> it's a fifteen page appendix next each and every one of these seventy three opinions and these are again the kinds of decisions and that garner headlines right the kind that you look through and you say oh unambiguously yeah these are political questions that came up before the roberts court and every single time the roberts court split five four four or five three on ideological grounds <hes> in in favor of the conservative position okay so great good on sheldon white house for for doing this for documenting <hes> and the reason by the way for five three is that <hes> sunni soda or <hes> because she was solicitor general had to win a disproportionately large number of cases right <hes> so <hes> as you go through these are the kinds of cases that we've talked about on the show right town of greece v galloway burwell versus hobby lobby janice versus asks me <hes> you you know houston versus randolph institute. You know bunch of e._p._a. Cases a bunch of s. f. e. c. cases shelby county versus holder. That was the voting rights act case citizens thousands united right. I mean these are the notorious top line decisions <hes> and <hes> this report continues to the point out in each of these cases right at in a in a box on the side <hes> the judicial principle that ostensibly right wing justice judges are supposed to have <hes> that were disregarded in this case right so federalism originalism starry decisison assists <hes>. It's a great read but i wouldn't be talking about this. If this were just a speech that sheldon whitehouse gave to the american constitution society society instead he did something really really clever and and i and i wanna call it out here so so put a pin in that report and now i wanna tell you about a case that is pending for which the supreme court has granted cert so because the supreme court has been crazily activists on guns there will be a change that was signed into law by governor andrew cuomo on july the sixteenth <hes> that changes the state law that then supersedes the new york city ordinance right so the new york city ordinance dance was about carrying firearms within <hes> the new york city limits. It was prohibited <hes> there was a lawsuit brought by a gun owners who wanted to transport their guns from you know a home to a second home to a shooting range and they were like but to drive live there. I have to drive on ninety five drive through new york city and i'm going to be subject to this law and so the state of new york said you know what you're you're just doing this to try and get another gun case before the supreme court so you know what we're gonna. Change the fine you wanna drive with a guy with a gun in your car in new york city cab that go crazy and that's in fact what they did. I mean joke on your gun so you happy yes. Actually i mean it. Look it has to be it has to be unloaded and locked and separate familiar munition because that's the that was the procedural posture that this case was brought right. It was look at how you know. They're infringing on our second amendment. I can't even carry you know an unloaded firearm through right and they and so cuomo is like you know what fine we're going to change the law. We're gonna supersede the new york city ordinance and drive to your gun range and then like but we still want to be mad at you so that's that is one hundred percent right that that is the procedural posture of this case and i will read you <hes> the the petitioners in this case the new york state rifle and pistol association there. We just wanna be mad at you even if the even if there is no underlie ing a city ordinance anymore <hes> right because because the city goes and says look supreme court yet. You ought to dismiss this case. It's moot now because there's there's no law. The petitioners have no rights to protect and the the and this is a splinter group of the n._r._a. Because of course it is they say this court should thoroughly reject the city's remarkable request to dismiss this case even if it's not moot throughout this litigation the city has shown nothing short of contempt temped for the notion seemingly settled by d._c. Versus heller and mcdonald versus city of chicago that the second amendment protects an individual right to keep and bear arms not amir privilege that that municipal office officials made deny as they see fit again. This is all from a supreme court petition mind you. The city has consistently taken the position that it's transport transport. Ban does not even meaningfully impact the right to possess a handgun in the home for the purpose of self defense which is the second amendment right that the city will even parenthesis big grudgingly acknowledge exists. It goes on like this right so this. This brief is the n._r._a. Speaking to the supreme court in a way that i would be somewhat embarrassed to speak you know in a public you know at an opening arguments live show right basically cheerleading leading and saying hey look like you guys loved guns. We love guns and so even if this isn't a live case or controversy anymore i mean new york is pretty anti-gun. Let's stick it to them. <hes> that is a fair interpretation of of this of this response back to the to the city's request to <hes> to dismiss out the sort what is being in providence granted because there's no more city ordinance anymore so sheldon whitehouse along with zero richard blumenthal dick durbin kirsten gillibrand filed an amazing amicus brief in this case an amicus brief says here. I'll quote it directly. The judiciary was not intended to settle hypothetical disagreements. This is precisely and explicitly what practitioners want the court to do. In this the case in the wake of a multimillion dollar advertising campaign to shape this courts composition and an industrial strength influence campaign aimed at this court indeed indeed petitioner's in their allies have made perfectly clear that they seek a quote partner in a project to expand the second amendment and thwart gun safety regulations particularly in an environment in which a growing majority of americans believes that this court motivated mainly by politics rather than by adherence to the law this court should resist resist petitioners invitation <hes> and so- citing the research that white house has done in among other things <hes> <hes> in in this <hes> amicus brief <hes> essentially the argument is hey look the the special interest groups are out there. The conservative activists are openly cheerleading for your activist court to issue more activist rulings from the bench and justice justice roberts if you can be shamed if you care about your legacy <hes> we're we're not going to pretend like this is just an ordinary ordinary case anymore right so the brief begins with confident that a court majority assures their success petitioners laid their cards on the table and then here. It's quoting outing from their original brief. The project court began in heller and mcdonald cannot end with those precedents and of quote petitioners of course identify no legal question on which the circuit court of appeal disagree they do not suggest the court below so far departed from the accepted unusual of judicial proceedings to require this court to exercise supervisory power and indeed they do not even suggest that the withdrawn municipal regulation presents any important question of federal law that should be settled by this court they we simply want a majorities help with their political project. This is just some white people wanting to speak to. The manager is what it is. It's like even though there already already were given like another burger. That's fine. I still want to speak to the but we gave you for another. I wanna speak to your manager is up yeah. That's that's. That's a great well. Look what this is. This is <hes> the the the partnership between right wing political collectivism and a reshaped right wing activist conservative supreme court and as we have said right the the game going forward in terms of judicial minimalism is embarrassed john roberts this brief is the best shot that i can that that i can see a and i mean that from from an argumentative standpoint right at try radio. It's a gun case to to try and the today show you at john roberts to say hey sites. Let's not let's not go sarah palin here but but but but to say <hes> look you if you truly are the institutional thesis correct if you truly care about the legacy of the supreme court <hes> you need to know that we're going to be continuing to make this in the in the public eye and and that we're going to expand and draw attention and and join cases and point out when you know this is when political groups are seeking to use this court as a vehicle for activism okay. I'm very upset couple questions. Where is this case right now so it didn't just go away. It's actually i have it visit. No no no the so so the the ordinance was challenged was upheld two separate levels and then the supreme court granted cert in two thousand eighteen wow and then right. I discussed the procedural history right. The state signed a bill into law law that supersedes the city ordinance. There is no reason to adjudicate this ordinance anymore the only reason to continue to want to have it up there is to have because again again remember zero one gun case that upheld gun restrictions from our nation's inception through the through two thousand and five <hes> and then heller in two thousand and five mcdonald in two thousand eight <hes> and what they're trying to do is increase the number of of gun cases coming out of the supreme court <hes> because a gun friendly supreme court and by the way i was just gonna i want the question. I i want to say that the the amicus brief quotes from n._r._a. Materials right with the n._r._a. Spending millions liens of dollars <hes> to support brad kavanagh and neil gorsuch right so it it does not shy away from the implication that <hes> gorsuch and cavanaugh <music> are pro n._r._a. Hacks who were put on the bench opening arguments is brought to you by beach body on demand so what is beach body on demand. It is an easy to use streaming service that gives you you instant access to a wide variety of super effective workouts. You can do from the comfort of your own living room twenty four seven. They've got a history of success is the company behind p ninety x insanity the twenty one day fix and more i have used both p ninety x insanity. Those are my particular. Favorites and new programs continue to be added regularly to the platform at no additional fee. They've got the best trainers. I'll tell you my favorite sean t and tony horton. Those are my favorites but you might have your face get motivated by celebrity super trainers. You know like i said sean t shaleen johnson tony horton an autumn calories. They've got the best programs they've got hundreds of effective workouts and this is for all fitness levels so maybe you're <hes> bodybuilder or maybe you're just trying to get going and you just need some cardio we oh maybe even yoga or a dance workout. Those are fun whatever it is. It'll be tailored to your needs. You work out on your schedule as short as ten minutes and workouts that don't require extra equipment so that there's there's really no resistance. There's no excuse to get going on it. In the time it takes you to drive in park at the gym jim. You could be finished working out access anywhere anytime on your computer. Your web enabled t._v. Tablet smartphone roku apple al-tv chrome cast and more. It's the best deal and fitness listeners of opening arguments can try it absolutely free now. My favorite as i've said was always shaun. T's he's incentive but he's got another one. That's my new favorite. That's focused t twenty five. You get hours results in just twenty five minutes a day. <hes> shanty is my favorite. Though you can't beat sean t. Why don't you try it out or try any of them. Find your favorite and find what works for you and right now. Our listeners can get a special free trial membership. When you text away to thirty thirty thirty that's away to thirty thirty thirty you get full access to the entire platform for free all the workouts the nutrition information and support totally free again just text away to thirty thirty thirty. There is no reason not to at least try this. It's a free trial membership. Go try it out today all right. My dumb question is this. How does this relate to the sheldon whitehouse thing like you went right into that in. Is this just that that's just painting the broader picture picture for how partisan the court is or was there some specific tie-in yeah. No this is white houses amicus brief as well and it specifically sites and detaches the study too so in other words. He didn't just make so. This is seen for it. I didn't realize actually also okay gotcha yep so this is why sheldon whitehouse is a better human being than i am right like he he didn't just give a firebrand speech and you know document document <hes> painstakingly the seventy three five four cases on political grounds that are indefensible <hes> he then said hey look i've got this evidence and i'm going to continue to bludgeon john roberts with this until i shamed him into <hes> doing the right thing or you know or until we lose <hes> but either way <hes> he's doing something when i didn't so <hes> so i will not let you demean yourself in that way does he have a podcast cast no every well team up so <hes> but yeah there is there's an extent i'm going to include the the amicus brief as well <hes> even if you don't typically read the legal pleadings we link in the show notes because this is an atypical amicus brief it reads very conversationally <hes> <hes> and so you know you can read things like with bare partisan majorities. This court has influenced sensitive areas like voting rights partisan gerrymandering dark money union impacted the right-wing ghouls in the court in the heller monkey contingent <hes> or what was the term. Somebody else sent in a new term for that. That was mrs trump. Something trump pansies think this at trump pansies but i i don't know i think the the right wing heller muggy contingent goes back way before before trump's. I i feel like we'll keep that but anyway. They're just gonna take this as like a good report card. It's like oh. You're sending me a report of all the stuff i've done. That is great. Thank you sheldon whitehouse. I agree with all that we did that. So certainly the howler monkey records remember i don't i do not put john roberts in alor monkey contingent right <hes> certainly those four are cheering it on and certainly if something terrible happens <hes> in in the next year and a half <hes> none of this will matter but so long as john roberts is the swing vote so long as he is the focal point <hes> we need to remember it is is total nonsense. We continue to say this every episode when the press reports about how well he's really you know siding the not so concerned like that's nonsense. He is as conservative as he feels like he can get away with but he has some sense of of things beyond which he does not want to try and get away with so might not be dollar monkey but he's a zookeeper. That's pretty cool with everything they're doing. He's like that yeah right animal kingdom yep no at look like right. It's it's like right an- another it'd be it's like having another monkey zucchinis monkey exactly exactly he's he's the he's the the monkey no silverback gorilla zookeeper who keeper if we're stretching this analogy too far which we have <hes> so you know yeah i do not put a lot of stock in in john roberts <hes> and will continue to push back on the you know idiotic puff pieces but i do believe that the best strategy on a macro level going foreword is one of those gorillas that can do sign language so we might be able to reach is what you're saying. You can't reach the other ones but yeah right is the institutional thesis right and again. Ah i'll just re summarize that it is the idea that john roberts wile remaining firmly committed to conservative principles and and conservative political outcomes right read his dissent and oberg evolve <hes> he is. He is no moderate. He is no mainstream republican. He he is firmly committed to right wing political outcomes but he does not want his grandkids to read read in their a._p. U._s. history textbook in twenty fifty that the roberts court was the demise of the supreme court as an independent body right. That's what i mean by. The institutional grandkid's going to be finally cracking open textbook in their thirties. Well you know whatever <hes> that that that that that he wants to lick this court will have his name on it right and so he wants wants to preserve a at least a veneer of institutional respectability <hes> in in connection with the supreme court and and that's the way <hes> i think to to try and shake him loose. Look that's what i predicted and what happened with respect to the commerce case right and as as we talked about in that episode when you dissect that case it is very very clear to me that without the whole feller documents that would not have been far enough right he would not have been embarrassed enough without a file that was leaked that said you know how to advantage non non hispanic whites and republican like the so look this is not somebody with a lot of shame <hes> but it is somebody who can be shamed and i want to commend sheldon whitehouse four trying to shame them so good work all right. Well good on get on you. Start a podcast now on this one. We'll have well absolutely have among all right. I think it's time to get back to some some yodeling the o._g. The original yodeling that is stormy daniels. I think that really did launch this. <hes> this whole endeavor so here we go because people have gotta know whether or not you're not aware of any contacts during the course of the election dan how many times have to answer this question. Can you just a ruse. I know you have to get up and ask a question so and put russia is a ruse crop. It's all right. It's i've been waiting. I've been waiting so long. What's the update what's going on with the stormy daniels stuff yeah this. This is the connection between stormy daniels and hope picks so let set a little bit of the time line here we i covered stormy daniels march seventh two thousand eighteen that was episode one fifty four a month later april eighth is when the southern district of new york supported by the in the southern district of new york the f._b._i. Filed for a search warrant for michael cohen's office home home safe deposit box hotel room and two iphones <hes> that search warrant application with stay sealed until july of twenty nineteen now june of twenty nine thousand nine june nineteenth twenty one thousand nine hope hicks testified before congress <hes> as as we discussed discussed. This is episode to fifty nine. She is absolutely the key person in the congressional investigations right we broke down all of the letters and subpoenas that were sent out and hope hicks had the super set of all of them every question that was asked of any of the seventy three witnesses that jerry nadler was interested in interviewing was asked of opec's so she voluntarily agreed to appear before congress <hes> subject to and accompanied by white house lawyers and under an admonition you know not to reveal executive privilege which she doesn't have half and at that here we didn't even cover her hearing on the show <hes> because she lied she wouldn't answer questions she just the worst right but as as we've described in the auto mountain process right like there's so many interlocking things a month later july eighteenth twenty nineteen is when the southern district of new york <hes> taking a look at at <hes> the conclusion of the muller reports said okay well <hes> since there are no right since <hes> the mall report report is concluded and since the attorney general's office has said there are no further outstanding investigations <hes>. There's nobody to prejudice so we're going to unseal these files. They a unsealed the cohen documents that same day we covered that on the show <hes> that was <hes> episode two ninety eight and also also the same day <hes> congressman nadler wrote a letter to picks to our council that said we just got a whole bunch of documents released in the michael cullen litigation that appears to be inconsistent with your testimony before the house judiciary committee a month ago as i reminded you this directly quoting from letter as i reminded you at the outset of your interview anything less than complete candor can have very serious reese. Consequences is ho just make sure is the sternly worded letter is his this is the sternly worded letter say the court saved. We're all saved yeah. I would expect you to clarify this matter before the committee in very short order no later than august fifteenth tournament so so then the letter right letter goes through and says hey <hes> their massive inconsistencies between the coen documents and you're lying lies. We'll give to august fifteenth and quote. I would like to give you an opportunity to clarify your testimony on a voluntary basis prior to arkansas compulsory process and of quote so august fifteenth fifteenth has come and gone and hope picks his lawyers <hes> wrote a letter that purports to <hes> respond and and address yes the inconsistencies. Her lawyer is robert p trout in d._c. Not somebody i know <hes>. This letter is amazing using it it. I will read parts of this letter t <hes> spoiler it does not clarify. I hope hicks is obviously lying testimony. It does not address. Any of the major concerns raised seized by congressman nadler. <hes> except one that i'm going to talk about that is truly mind-bending. Lee bizarre that i i kind of shocked has gone unreported in the news and it doubles down so so i'm going to read. This is from page to write. This is whole pixes official position <hes> to the <hes> through her lawyers to the house judiciary committee opec's testified truthfully to the best of our knowledge regarding stormy daniels and karen mcdougal she knows precisely when and how she i learned about karen mcdougal miss mcdougal's agreement with american media and hush money payments to stormy daniels stephanie clifford it was all from press inquiries. That's her position that that position. I am here to tell you is not remotely tenable in light of the cohen evidence and i'm gonna put everything together <hes> so that you understand because now in in print through her council hope hicks has in my view. You very clearly lied to congress guy now. This is not an official proceeding so that is not perjury she he is not under oath but but this is unofficial statement to a sternly worded letter that was being offered in lieu <music> of us taking you to court <hes> jerry nadler is going to take hope extra court and as we discussed in episode two ninety the court will compel her to testify the position. She's taking are not legally defensible <hes> and if she will then n._b. Asked about this in court <hes> and those will be sworn statements. She can either recant. My lawyers wrote this and they just went off the rails. Also <hes> you know or she can double down at which point she will have perjured herself <hes> and again with all all of these folks right. The question is <hes>. When when do you get them out from under the thumb of donald trump. When do you have more leverage over them than and the president. Does i firmly believe stormy. Daniels is a path to play a key role in this again so let's talk about what what happened. The nadler letter says you appear to have communicated directly with mr cohen and president trump about these payments it says long before for they were made but actually two days before they were made according to call records on october eighth at seven twenty pm cohen received a call from hicks sixteen seconds into the call trump joined the call and the call continued for over four minutes ten minutes after the call ended hickson cohen spoke again for two minutes right so in other other words <hes> and then after cohen ended second call with you exchange series of calls and text messages with <hes> pecker the c._e._o. Of am i mr howard that's dylan howard who also works for a._m. I and the president right so in other words hicks calls cohen trump is on the line. They get off cohen calls a._m. And then cohen calls picks again right as congressman adler points out. That's an awfully big coincidence to think that you were not talking talking about stormy daniels particularly when michael cohen has said i was talking to the president about stormy daniels <hes> and and this is a day and a half before stormy daniels signs the settlement agreement with michael cohen and essential consultants that is is the basis for the hush money payments so right so that's what congressman adler says and then you might ask yourself. What's whole pixes. Excuse that's right okay. Why is she talking to. Michael cohen on the day that the stormy daniels newsbreaks if they're not talking about stormy daniels and here all i can do. I'm going to include a copy of the letter in the show notes and i'm going to encourage all of our listeners to to read along. This is what hope hicks is lawyers say in defense although she opec's cannot recall the details of each call she is quite certain that none of her calls calls that day with mr cohen related to any agreement with or payments to stormy daniels one of the many press inquiries hicks received following the release of the access hollywood hollywood video tape the day before related to a rumor of a videotape now known to have originated with the steele dossier involving mr trump in moscow with russian prostitutes. That's the p tape right as miss hicks testified before the judiciary committee because the website t._m._z. was rumored to have access to the videotape and because she knew mr cohen had a good relationship with harvey levin of t._m._z. she contacted mr cohen on october eighth two thousand sixteen about the rumored rumored videotape. Let's stop that for a second was rumored to have access to the videotape. If there is because again i have always been suspicious of the steele dossier. I have been super suspicious that there is a p tape rightly. All of those allegations struck me. He is just not well not yeah. They're not the craziest thing in the world donald trump but like i wasn't personally. I've never been banking on that being true. I've never been like all right. There's definitely taper something. That's a good that's a good way of putting it right. The maximum that tomorrow there is a tape. I wouldn't be like dying of surprises like wow okay. It wouldn't be right. It wouldn't be like if there was an elizabeth warren tape. I i liked that. I would be dying surprise yeah i would. I would literally dive surprise for days right yeah and i don't it. Just there's so much what is is our politics that this is what we have to disc- yeah right whereas this country gun anyway opening arguments is brought to you by blue apron folks. 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It was just not based on anything but just because she knows what everybody else knows that this person is awful. I i suppose you could take that position. Rush guy. I do not know why you would need to call the president's fixer if there's nothing to fix good point joint so good nanny again this is. This is her defense this alert. She believes that her calls with mr cohen that day would have been about reaching out to harvey levin to see if there was more information about the rumored videotape whatever else mr cohn was dealing with that day. His conversations with hicks were not about stormy daniels or any agreement remit relating to hush money. Okay <hes> there is other stuff and i don't have the time to go point by point with alli i would just encourage our listeners to put side by side. <hes> the the bullet points raised in adler letter <hes> with the non responsive non answers <hes> in in the hope hicks letter <hes> but i do want to deconstruct this point on october eighth two thousand sixteen <hes> because i've read the michael cohen documents kamenz <hes> and they flatly contradict that you cannot read the search warrant affidavit signed by and and this part is still redacted. We don't know the f. b. I. <hes> operative but this is <hes> a a a a two hundred sixty nine page search search warrant affidavit. I'm going to upload it to the show notes. <hes> it includes all of the exhibits it is lightly redacted to protect <hes> certain individuals but right. It's not redacted for trump. It is not redacted for hicks. It's not redacted for michael cohen. It's not redacted for any ongoing. Matters beginning at page forty is is where this flatly contra and again. This is a signed affidavit submitted under penalty of perjury by an agent agent of the f._b._i. In support of a search warrant for the president's lawyer so beginning on page forty it sort of sets up the my review public sources <hes> lead that <hes> led me to confirm independently that that stormy daniels was being shut up in in october of two thousand sixteen then page forty one for my review of telephone toll records and information produced pursuant to a previous warrant. I have learned that in the days following the access hollywood video michael cohen exchanged a series of calls text messages and emails with keith davidson who was then stormy daniels lawyer. That's the patsy lawyer that though yeah forget that cohen and a._m. I curry and choose them by the way because it was him and then it was on a naughty well well well davidson was sort of forced on her so <hes> yeah it <hes> but anyway so e mails with davidson david pecker and dylan howard the american media of american media and bright. That's the publisher of the national enquirer trump and hope hicks who was then press secretary for trump's presidential campaign so we do not have all of those emails or at least. I haven't found them yet. In this gigantic trove of released documents. I am looking through to see if a whole pixes deal is directly c._c.'d on any of these <hes> it it so stay posted on that but the affidavit continues based on the timing of these calls and the content of the text messages emails. I believe that at least some of these communications concern the need to prevent clifford from going public particularly in the wake of the access hollywood story in particular. I have learned the following and now let's match this up with what hope picks it so pixel assists yeah. I talked to cohen on october eighth <hes> but i talked to him on that day because the access hollywood thing came out and i thought the russian p tape was gonna come and i wanted him to contact t._m._z. So that we could shut up the russian p tape never minding why she would think that would be exculpatory. <hes> we'll we'll leave that for another another day. Here's the actual timeline as supported by the actual warrant october eighth at seven twenty pm. This is written as cohen received a call from hicks. I wish it would have said hicks called cohen right sixteen seconds into the call trump joined the call and the call continued for over four minutes. That's then supported by a footnote which explains you know there was a little minus like how they conference in donald trump soho picks calls michael cohen says get donald trump on the phone by the way this answers serve so even if even if you take her statements at face value this answers the point you were making earlier of well. Maybe she was just thinking. Trump was this kind of got the very first thing she does is she calls cohen and says get trump on the phone and trump's on the phone and they talk for four minutes. They're based on the records. That's ten seconds of is there yes and then just silence. Really i'm looking for barking noises all right. I would not want heather loveridge to have to transcribe so so next based on our call records. This was the first call cohen had received or made to hicks in at least multiple weeks <hes> and in fact cohen and trump spoke about once a month prior to the state specifically privatised call on october eighth conan trumpet spokane once in may once in in june once in july zero times in august and twice in september right so again. That's really really important for understanding the background to write like it's it's not as though michael cohen had you know s._n._l. Sketches right where ben stiller can call up on in those are so great <hes> but they don't talk everyday they talk once a month and he talks to hicks never right so that's a pretty big coincidence but let's keep going through the affidavit ten minutes after the call ended hickson cohen spoke again for about two minutes k. so get trump on the line. Is there p._t._i. Yeah there is also <hes> we've got we've we've got a silent stormy daniels here. Don't we yeah do whatever you can okay <hes>. I'm getting off now. Then hickson cohen are what are we going to do about this right next paragraph at seven thirty nine p._m. Immediately after after the second call with hicks ended cohen called pecker president of american media and they connected for thirty seconds four minutes later cohen called pecker occur again and they spoke for more than a minute three minutes after ending his call with pecker cohen received a call from dylan howard as noted above the chief content officer of a._m. I and they spoke for a minute. According to toll records it does not appear cohen howard spoke regularly prior october eighth twenty sixteen it had been over a month since called each other okay then as soon as that ends eight minutes later seven fifty six p._m. Cohen calls hicks and they talk for two minutes at the same time. This call ended cohen receives a call from from pecker. They spoke for two minutes at eight. Oh three p._m. Three minutes after ending his co. Becker cohen calls trump and they speak for eight minutes so we can just stop there. There's a little little bit more that i that i want to get through but it is not again. Remember when you were talking about proving perjury right you were talking about out proving the existence of a fact that exists in someone's head so you're always going about this through circumstantial circumstantial evidence. Is it possible that hicks called to talk about the russian p tape and then as soon as they were done he was like oh yeah upgrade. Get a go now. I'm gonna talk to david pecker. I'm on a totally unrelated matter then. I'm going to hang up. Call you again talk. Do you again then. I'm going to hang up call pecker again then. I'm going to hang up then. Packers associates going to call me then. We're gonna talk again. I i guess right. You're free to draw that in the purchase talking about the latest season of game of thrones that was they had all just watched it and they called each other at that time further evidence that michael cohen is not dealing with the p tape or t._m._z. or anybody else right because again remember this timeline also consumes. All of michael cohen's phone time right. These are the people that he's talking to on on the evening of october eighth so eight thirty nine and eight fifty seven p._m. Cohen received more car calls from howard five minutes each nine thirteen ten ten minutes after he hangs up from the second of these calls howard sends cohen text message that says keith will do it. Let's reconvene tomorrow based and then this. This is the f._b._i. Agent based on my involvement in this investigation. I believe that when howard keith he was referring to keith davidson the attorney for stephanie clifford stormy daniels so again. All of the communications going to co in this time are about our from a. M. i. about stormy daniels at three thirty early in the morning now on october ninth two thousand sixteen cohen sent howard text message in response that said thank you eight minutes later coincided howard a text message that said resolution consultants l._l._c. I love that he could remember the name of his own fake. Entity essential consultants l._l._c. anyway resolution resolution consultants l._l._c. is the name of the entity formed a week ago. Whenever you wake please call myself so then the next day october tenth eleven in the morning howard it sends a text message to cohen and davidson which says keith slash michael connecting you both in regards to that business opportunity. That's pretty gross spoke to the client this this a._m. And they're confirmed to proceed with the opportunity. Thanks dylan over to you too and then at twelve thirty in the afternoon davidson sends michael conan text message that says michael if we're we're going to close this deal in my opinion needs to be today keith and in fact that deal was signed on october tenth two thousand sixteen that is when <hes> they signed the quote side letter agreement that <hes> contain the confidential settlement agreement and mutual release between peggy peterson and david denison so and and as a as a slight <hes> sidebar there the f. b. i. agent here correctly directly refers to the stormy daniels peggy peterson david denison agreement as a settlement agreement and not as a nondisclosure agreement so i i. I don't know if the f._b._i. Listened to really love to think that maybe other table just no loss stuff. Maybe that's that would be but now they probably listen i would that's obviously the most parsimonious explanation now so it is not credible <hes> and this letter is not credible that oh no i. I just happened. I am named in emails. I am listed as participating dissipating in resolving this process but no i nobody absolutely on october eighth. When michael coen's hair is on fire and he is staying up until three thirty in the morning trying. You know in a panic you you can. It's not hard to imagine what's going through. My coen's mind right the access hollywood tape his out. All all of a sudden stormy daniels is gonna break. How do i shut that up. <hes> i'm up for twenty consecutive hours. I finally think i've reached some kind of agreement and i've talked to who picks four times over this timeframe but definitely no no we. We talked about a totally unrelated. Can you believe ned stark died yeah that that is an almost impossible position to have to argue in a court of law and and that's where this is headed right that opec's his lawyer <hes> has has doubled down and said nope she definitely right i read. I read you that on page two. Oh she learned about stormy daniels from press inquiries <hes> that as far as i can tell all of the evidence suggests that that is one hundred hundred percent a false statement <hes> and <hes> and and she's headed back to court and i i can't wait to see what happens <hes> <hes> i continue to believe that you know the the the key at the at the whole of all of this is <hes> is going to be stormy daniels so so there you go. What's so but okay bottom line. It dumbed down for me here. What's the best that can happen. She just says okay. Actually i did now something and then what and then she can be held in contempt of congress for lying to congress. She can be charged with perjury <hes>. There's a there's a ton of leverage <hes> that congress will have overhaul picks as a result of her having had her lawyers draft this letter that was obviously ally fairly obvious but can this get back to trump or we just punishing shing you know the people at the fringes here right well that that goes back to the where i let off the segment which is hope hicks fix got the most extensive subpoena hope picks as far as jerry nadler is concerned knows where the bear the bodies are buried so yeah i believe it. Can it can go back and look we know from the cohen affidavit here that she was on the ground floor of all of these decisions so oh yeah i think it's i think it's very very significant gino's where the p. tapes are buried. Okay all right well. That's stormy daniels. That's the update we're all waiting for. I've i for one am <music>. I feel satisfied that gives me some hope a little bit optimism here out of out of this autobahn <hes> we'll have to see when when can we expect you know what's what's the length of time. The sternly worded letter process is gonna take in this case there will be a lawsuit filed compelling hope picks to testify testify <hes> to to resume her testimony before the <hes> the house judiciary committee and as soon as that is filed <hes> will we'll report on it. We're at the obviously at the end of the episode but i'm just thinking about it. Why hasn't there been any sort of hearing or testimony or anything. In what feels feels like a a month. I mean can't can't can't we get going right because we'll do. I mean seriously it's because they're on summer vacation -cation. I and i know i know that sounds ridiculous. <hes> but remember that these folks and particularly now so represented they've got to be reelected every two years and so the the point of the summer break it was the leverage that you know republicans had <hes> in the senate cramming through trump's judicial nominees right is that eight of the democratic members of the senate are on the presidential campaign trail right like these are these times are the times in which political officials do political critical stuff. That's we can expect them to do that and state of our countries. I look like there's ah it's why i said it that way because the argument of hey maybe don't go to the beach. Weller countries on fire is a fair argument but again you gotta you gotta get reelected and you know it'd be a good reelection. Add <hes> grilling some trump crony. That's true. That's a really i don't know i've never karan's wins again. I have no answer the democrats. Come on okay well. That's all the time we have <hes>. We've got to thank our new patriots over repatriation dot com slash law and why don't you start us off indra yeah. Thank you to daniel sharp to yolanda tom to new diane crow. She submitted her name in all caps. I figured she wanted to help and to aubrey anderson. Thank you all so much for supporting the show and in thank you the law offices of dewey cheetham and how <hes> kelvin rogers and ryan davis right those those new patriots but i will do we do we cheat them and how is probably like wha- i think like the marx brothers right like it's i was thinking forget get my i was trying to think of huey dewey and louie okay yeah so do do we cheat a man how anyway yeah i just didn't i didn't i want you to get angry emails from people who know theft ceres i just kind of read it and then the joke's on us you know i don't need to get it. Everybody it half the time so it's time for another iteration of thomas lose the bar exam here we go. How did i do. Oh no socially the sperm has ever failed the bar to the hand. I need you close. That's one of my mission. Parameters trust me. I know now why you cry. You want the answer. I you want the analysis. I i don't care so we're this. Is this the continuing anything pattern. <hes> you analyze the question. One hundred percent correctly narrowed it down to two right choices and then pick the wrong one <hes> <hes> so <hes> so so you lost but but you lost for for awfully good reasons and let's let's. Let's kind of go through that right. I i love the i mean seriously i was like i was pumping in my fist here thinking you were going to get it right that you short question and you're like well. What's the deal with the banana peel being fresh and unblemished. I guess that it means that it's just it's only been on the floor like a few seconds right like it's not all stopped all over <hes> that it was indeed the the key in fact here so <hes> so let's kind of break down what what the answers <hes> with a potential answers are you who immediately eliminated a no because the customer has an obligation to to watch where he stepped <hes>. That's true that that that's <hes> that's a that's a very very good elimination because you know i it hypothetically. I guess that could be an issue of comparative negligence but but like this is just a basic torch question. Do we get to go to the jury and you know the they might have an affirmative. Defense is not a reason you don't get together. That was was the worst answer. You got rid of that immediately. <hes> you also got rid of yes because the store could foresee the customer might slip on a banana peel <hes> which which again good elimination because under a negligence standard <hes> just being able to foresee a consequence <hes> is not sufficient right like that's not what a plaintiff has to prove to prove negligence. A plaintiff has to prove <hes> not only that the defendant could have foreseen the consequences but that the defendant failed to act <hes> with the appropriate standard of care right <hes> and so then that's the key question is when the banana peel was on the floor. Is that a a violation of the duty of care or not right. Is there some reason why it wouldn't matter right and so see for example would say yes the your your choice says yes. It's more likely than not that the peo- came from a banana offered by sale <hes> for sale. Oh by the grocer and you correctly identified this one to you. Were like oh so that's like a theory and you almost said right. A theory of products products liability right thinking yeah. It's their product. <hes> products liability is strict liability right. You do not have to prove prove negligence. You do not have to breach of care you you just they made product yeah well. It's not because there's nothing wrong along with the product here right yeah. It's not like it was defective banana if it were that would be healy bananas yeah right. The banana worked exactly the way the banana is supposed to work right to three groups on the outside to on the inside perfectly fit for the human hands arm arm slip into it it so <hes> so the fact that the banana was offered for sale. <hes> is not sufficient <hes> then then the question is <hes>. Is there only leaves piece. You know that's the right answer. <hes> the reason why it is ordinary ordinary negligence and not recipe look widower right the thing speaks for itself which we've talked about before where just showing that there's a banana peel is enough has to do with the condition of the banana peel right the the fact that it's a pristine fresh and unblemished banana peel means means that it wasn't on the floor for a long period of time so there is not enough evidence to suggest that just from that fact there that that would be negligent by the store right like imagine you know you have a prankster who put the banana peel on the floor and then the the plaintiff slips on it right. If if the plaintiff the defendant us uses a reasonable standard of care to keep the floor free of banana peels and somebody else also you know surreptitiously does mario kart kind of thing that would come out in the trial in front of the jury but it says right this this is this. These are the only facts in evidence right so right so we've we've had our trial right but the way you have a trial i before the jury in the n._b._a. Another trial i guess i don't know the the the the the question is right and so maybe there's a lack of understanding in the question yeah this is this is a a motion for a directed verdict at the conclusion of the trial right so all of this evidence i i mean i guess you could interpret it as coming out in discovery but i interpreted as you've had the trial the plaintiff puts on these two pieces of evidence and then at the end you say okay <hes> as as defense attorney you always do this in a in a case at the close of of the plaintiff's case in chief <hes>. It's almost never granted you. You move for a directed verdict. You move to say okay. Even if all that's true. There's not enough legally speaking to send this to the jury. Sorry we want to take this away from the jury because they could find in favor of the plant but the only way they could do it was discovery but <hes> ah you what you're saying now yeah all right well another but even put assume it doesn't assume that this is a summary judgment motion pretrial summary judgment motion where you're right at most i if to get these are the only facts in evidence you would have to have something like <hes> you know a witnessing missing well all i can testify that there was a banana peel that you know what i mean like. It's sort of hard because now we're outside of the realm of of actual practicing law here while we're hypothesizing <hes> but if those are the only facts <hes> then you you don't have enough legally speaking to constitute due to negligence no matter how the jury weighs the evidence so that's why it's be i was. I really like you broke it down. You analyze to correctly ashburton products liability what i do i get it almost right until the very end then i get it wrong. That's you know there's a certain skill that takes all right well. As long as i'm about fifty you are fifty three point nine percent seventy six for one forty one but you get you get buono. Get back on the winning side again all right well. Why doesn't <hes> future andrew hopping that well current andrew can have in that time machine become future andrew and tell us who this week's big win so thomas. This winter is leo g. On twitter that is at capped cracks c. A. p. t. c. r. a. x. Who writes answer be. We probably don't want it to go to a jury unless the the plaintiff has made at least some argument establishing each element of the tort. Was there a breach of the duty of care. What is the duty of care owed by the grocer if the lawyer couldn't be bothered other to enter into evidence a clipping from j. f. sl the journal of the american safety institute to establish appropriate duty of care. The judge should dismiss the case nash point out. Leo g. cheated here a little bit by spreading this out over to twitter posts. We probably won't accept that in the future but this was such a good good concise. Pithy explanation of the proper answer is better better than the one. I just gave you <hes> so. I couldn't help it. <hes> had to award koji the win this week but <hes> don't go thinking you can get us like seth abramson style. You know ninety seven tweets all in a row <hes> that's it's not gonna work but but just this once <hes> leo is the winner and everyone should give him follow that is at c._a._p. Are ex captain cracks ax. I suppose on twitter congratulations for being this winter all right well. Thanks so much for listening. Thanks most of all to our patrons. A patriot adriaan dot com slash law for making this show happen enjoying all the bonus goodies and we will see you for a rapid response friday see then law aw this has been opening arguments with andrew thomas if you love the show and want to support future episodes so please visit our patriarch page patriot dot com slash law. If you can't saporta spiritually it'd be a big help if you leave us a five star review on itunes stitcher or whatever eber podcasts delivery vehicle you use and be sure to tell all your friends about us for questions suggestions and complaints email us at open arguments at gmail.com and the show notes and links are on our website at w._w._w. Dot open dot com be sure to like our page on facebook post on twitter at open arcs until next <music>. 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