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OA320: The (Idiotic) Hearsay Defense

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The jury is like Oh twist like the love twist any great trial I I suggest we give them ten years and loving wife seventy. I'll tell you what I'll do. I think five impending worldwide this rush. The judge issue was not by honor don't you Michael Michael meant to come down here and defend Mir gets cutting the months is the blood slipping luke welcome to opening arguments the podcast pairs inquisitive interviewer with a real life lawyer. This podcast is sponsored by the law offices of p Andrew Tour's. LLC for entertainment purposes is not intended as legal advice does not form an attorney client relationship. Don't take take legal advice from a podcast hello and welcome to opening arguments. This is episode Absorb Three Hundred Twenty Three Twenty Hi Andrew. Is that a thing here interesting if I could try to make off it of course it's of course that's a joke that your precious cinnamon but how's it going under well on the one hand. It's going fantastically well on on the other hand. I think this may be our last show ever so It's been a great run. How are you doing Thomas? I'm doing great. Cic All the stuff that you had on the whiteboard that we need to do and there are just items in item. This might be world record for away numbered lists items on a whiteboard. There's like tw- any anyway there's had most of the points to yeah. You'RE GONNA race all of that because now all we have to talk about is that the president tweeted look at this photograph nickelback meam. This is real life. We're leaving. Did you see the this this broke early this morning. Probably you know five. Am Your time so maybe used but nickel down issue. TMC A takedown picked out yeah did I say nickel down nickelback issue at the MCA take down. You can even leave that in Brian. I'm happy to call me wrong long. Maybe at night when anybody mentions nickelback my brain just goes to mode protection mechanism defense This is the world we live in so we're going to do a full nickelback deep dive. I early work the later early. Start known and try and here's why I've made this joke gone on twitter so you know the the ten fifteen thousand of you follow us on twitter already already heard this one but literally this morning on national national television in a press conference Donald Trump through for himself that he didn't have to throw he he looked at the camera camera and in the context of once again asking a hostile foreign power in this case China to invest to quote investigate instigate the Biden's end of quote he then said this. This is the President United States on national television at a press conference. He threw that you've Nafta talking about a hostile foreign power investigating his political rival. He says quote if they don't do what we want they meaning China. We have tremendous tremendous power our end of quote yeah. That's that's bribery that on his part of the plan we're GONNA get to it obviously but this is he realized and he's not wrong. This is what sucks about this trump is good at like two point three things and unfortunately and he's realize realize that what took all the wind out of the sales of the Miller report was that people reported on it early ahead of time so we already had an indication about a lot of the stuff because have good reporting and then when the report comes out and everybody's like Oh wait. I already thirty heard about this new about this so that somehow let's talk about the doctrine of if I already knew about this not a crime because that seems to be the law now I gue- or something we already know about it hundred percent fine. It's only secretly things that bad and then so he I genuinely one hundred percent believe this is the strategy. He's going to try to do it out loud so that it's like oh well if he's doing it in the open then. I guess it's is fun you want to cry. You may be right and again. We don't even need to do this in a segment in the show right we have read we seriously we burgundies we keep this in the pre. Show we have read the federal bribery statute on the air. It's eighteen. USC Section to a one C one B and it says whoever being being a public official directly or indirectly demands seeks receives accepts or agrees to receiver accept anything of value personally four four or because of any official act shall be guilty of bribery and serve up to two years in jail like that. All of those elements are met in that sentence didn't like literally the House Investigatory Committee or at the impeachment in Greek would be like okay. We're done here he committed a crime on national television division and again was not an alarmist so this is not an alarmist podcast. You guys know everybody knows that WHO listens I. I did it kind of broke my brain this morning so so there we go. There was just crazy everything is we can't even improperly starter show because we're so amped about everything going on hi. It's opening argument. Let's see we're doing live show. Oh tickets October twelve coming up by the way that's only what a week away or whatever well. I'm not going to get a next one week. From this coming Saturday Eye Tober twelve in Los Angeles California. There are a handful of seats left all the really really good seats are left all really really good seats are gone on one platinum ticket left and like one or two. VIP Certain Michael Rob says maybe hold now for that one but uh-huh before he does Yep and yeah and again if there's two people wanna go we can maybe move some stuff around to make room for one more can can a five course meal. I don't know man that Science Courses Food and then we got looks like we got three. VIP left's and again if if we ever end up at an odd number like if if you in you know your friend your your significant other are like oh shoot. There's only one left make sure just message us and we'll see if we get around. I know a guy I know well. It's not I mean I. I was being again Andrew. We're cautious in in case. There's literally no more chairs but okay well. That's that's you're. You're always just like no we're good and can sit on lap steeple so hop on over the links in the show notes. I'm so excited about the show we have carry and Matthew coming from Ross and Kerry fame and Dot Matthews obviously the lawyer that we've had on the show that that worked with with Carrie and Ross on that. It's going to be a lot of fun. WE'RE GONNA we've got a little. I I've got some games planned land. It's going to be a good time abso come join US and Let's see anything else before we yeah so this is obviously elite Yodel Mounteney show. We have probably eight hours of content so I think we're going to another bonus for patrons this week. We'll do everything in the main show yeah. I want like we had a a lot of people sign up last week and you know we're we're going to we love you guys. Thanks for supporting the show. We're going GONNA give back by by putting out some some some free bonus content for you that will come at the end of the show Next uh-huh on Tuesday in showed number three twenty one we will be covering the brexit decision we have a fantastic guest coming on a a Scottish lawyer who can break down the UK Supreme Court opinion and so we're going to have her on so we're going to talk about all things brexit and and and one more bit before we get into the main show the Supreme Court reconvenes their summer break is over on Monday October seventh and the first set of cases that will be heard oral arguments that Monday is the consolidated Zardo Arta versus Attitude Express that is whether sexual orientation and gender identity are protected under the Civil Rights Act of nineteen sixty four. We've covered that case a lot on the air and we will sort of do the post mortem after the the oral argument. You're going to hear a lot on it. I don't think there's any way that the Supreme Court will find in favor of including sexual orientation and gender identity within within the the entitled seven so It's going to be bad and you're ignace read a lot about it. We've covered Zodda and highly and these cases extensively and and we will do a postmortem again but but you can check back in the archives and on. Oa Wicky if you WANNA brush up if you are the kind of person that watches Supreme Court oral arguments and I know we have listeners who do that. That aren't just me so that's coming up. There's so much going on that. I had to text Brian and say Brian. We're adding being something to the Yodel Mountain intro right. Make sure we enter the intro by the time we get there yeah. It's that that that's how crazy things are getting but also so it's I'm. I'm here for it. it's been a it's been a long Yodel. It's been a long Yodel but we're getting to the top of the only so long strange Yodel it's What do you think we radio? Start the show yeah. Let's start the show all right beginning of the show here Ms Veto please answer the question does the defense his case hold water. Now in Israel is wrong. Are you sure some Andrew was wrong. Yeah we got this one. A lot of people wrote in the Javelin is an anti-tank missile. It's always fun my favorite part of whenever you're wrong is I get to learn that. You were wrong seven hundred in eighty seven times but it's fine. It's you know there's no way to if only needs to be like some ticketing system that that's what they're should be. There should be like a and I'm just teasing. I really don't the there's a page. That's like Andrews wrong. Dot Open Dot com where it's like. People take out tickets. Who's you know I was thinking like helped like support ticket but you know it's like okay? Who's GonNa tell Andrew this thing and then one person does and then we're covered? I'm just teasing. It's okay the current system the more we get infant saying the same thing is fine. It's all just data but yes. That's so that's I one I don't know. Did you have any more to add to that nope. That's was demonstrated live on national television after we recorded so you know in fairness I got it wrong. and in fairness to me you know I'm not a weapons expert yeah. Did you say it was an anti-aircraft thing. I think I said it. It was a surface to air missile because I play a lot of civilization are used to back when I had time to play video games and you know you you had the little troops that were the surface the air missile guys and anyway. I was GONNA throw a cheesy like obviously should know that a javelin like is something you throw it a tank but then the stan correct sir okay okay item number two. I am intrigued to see this looks like you're you're wrong about something regarding covert Clarence yes so remember that that the Telco on the edited transcript of the call between trump and Ukrainian presidents alinsky was was immediately placed onto a segregated top secret server and hit with codeword clearance and I that that broke like twelve minutes before we recorded so I did my best to try and figure out what codeword clearance meant and I got it slightly wrong we have a bunch of listeners that are in the intelligence community you know obviously our friend Alice Ashton also got a lengthy response from word origins dot Org your guide to legal terms from Thirteenth Century Saxony who apparently knows a lot about the stuff so code word origins dot org yeah exactly and so I'm going to paraphrase from what he wrote this was this is really a a useful clarification and by the way it means like so I was wrong so I thought the codeword clearance was when you segregate it out all parts of the intelligence and then you know you had to have the code word to access that part turns out. It's way worse than I thought so so here's code word origin dot org explaining to me says look there are two elements in determining whether or not someone should have access to classified information. There's the clearance and then there's the need to know right so clearance right. That's what we're familiar with the confidential secret top secret right. That's like like a static thing like if you have clearance whatever's at that level that's exactly right and you get a review right like the. FBI does background check and it's like okay you know and I have I have served. I've never applied for clearance. I haven't had need to but I have had colleagues clients friends associates who have done so and like like so you know to get a confidential clearance level or secret clearance level you then have to go through this background. Check where they're like did you you know honeymoon. In in the Soviet Union in the nineteen sixties I go through it and they'd be like you're cleared for actually less than public yeah exactly exactly to know that's what everybody knows so yeah one hundred percent right so I you have to pass the check to hit the level necessary so the server was of course top secret but then but that that's not enough right like just because I have a top secret clearance doesn't mean I get to re all uh-huh I said warp speed too slow top secret not secret enough. Okay sorry I missed the reference. I was now talk. I remember you saying that a thought. You said that space balls was always going to be a good anchored. It absolutely is and that one's on me. No that that was skype blamed skype yes. So how many people do you have any idea like what level of secret is top secret so top secret is is the highest most of the three classifications right and so lots of people have it but just because you have a relatively speaking compared to the number of people in my abasement right but just because you have the top secret clearance doesn't mean you get access to all top secret information. You also have to have have a need to know that information and then now. I'm going to go back to reading what word origin says he says for the most sensitive information accesses compartmentalized is D- and that determination of the need to know is made by a central decision maker so you need preapproval to access that information and because those kinds of that kind of information comes up again and again that information is labeled with a code word so for example is a real life example access to satellite imagery was and and he says still live question mark so you know maybe were origins was retired from the intelligence community who knows given the code word special intelligence slash talent keyhole or s slash tk so if you had top-secret top secret sl slash t k clearance then you could see it but if you just had the generic top secret clearance you could keyhole yeah I you you know who knows that's why it's colon talk but then I think he would have been like special holistic stick with an h intelligent right like you would have gotten the acronym dispel clown or something but unclear so then he notes computer system designed to house codeword information would have a record of who is allowed to access what information and when a person logs in it when only show the information they were privy not too so codeword information is the most sensitive information were the government wants to maintain tight control over whoever has access to it and it is just beyond obvious that placing the transcript of the Ukraine call in a cook top secret codeword server. Is You know Holy Clown Horn. We gotTA lock this down. We gotta make sure nobody sees this and the fact that the president immediately Lee declassified that when it came into question shows that the initial classification thing in there that would remotely be thought of as has top secret discussion yeah exactly except for the crime but now the president's done that and national television so classic set on that so I I really appreciate that clarification. I always appreciate the clarification when you know the thing that I thought was bad our listeners electro no it's. It's way worse than that. Yeah Yeah I this was interesting to hear pod save the world people talk a little bit about this I I like when they kind of give a perspective of you know. Here's what it was like. When we were working with Obama they actually have like separate three separate computers? They have to work with on their desks. Like ones runs the okay. This is the computer that has no secret anything on it and here's the one has some other level and then there's one that's like top secret. Never never the th range shell mix twins for the three I like this right but and also you know they. They echoed the idea or reinforced this notion that you know a call like this has no business being at that level of secret like there's nothing nothing no reason for that beyond jarring to protect from crimes that are now so out in the open. I don't know why his lawyers even bothered all right. Well thanks for that. I think we have more Sadler slightly wrong about this is a one hundred percent just us my brain was broken. After all the work that went into last week this week and I guess every away from here on out until the end of time I I had said that Al Gore cast the tiebreaking vote on article two of the Clinton impeachment because it was recorded as fifty fifty fifty fails and my head right in my head sort of supply the like oh well yeah fifty fifty you know Gore is Vice President A- and cast tie-breaking votes just means they didn't get the sixty yeah right of course it's gotta go to sixty seven. That was just a complete stupid math. They're on my pilot so this altitude. There's not as much oxygen amount. We're so high up in the stratosphere here we we. We won't fault you for that one but that that that paves are waiting to the last one which is a thing that I was absolutely one hundred percent. It's not wrong about but maybe I needed to clarify a bit better. in in discussing whether Mitch McConnell Could Mitch McConnell everything in in in connection with impeachment I pointed out the nuclear option which is the the same procedure that McConnell used to cram through Supreme Court justices right to cram through both gorsuch and Cavill which is changing Senate that rules without changing Senate rules and the way in which you do that is you claim that a rule is because to change the Senate rules requires a two-thirds requires sixty sixty seven votes which you're not gonna get so the way in which you get it with fifty one votes is you claim the rule is ambiguous and then you'll offer a quote clarification for that ambiguous rule and that procedure under Robert's rules of orders Robert's rules of order something with which I have been intimately familiar since my days doing speech debate student Congress when I was thirteen years old under Robert's rules of order that procedure is called appeal to the decision of the chair yeah now and that's Mitch mcco right the the the people wrote in to say several things to say like look the person who's actually presiding over the Senate like that rotates which is true and that Chief Justice John Roberts will be the presiding siding judge over the impeachment trial. That's also true that has nothing to do with the underlying Senate rules those underlying Senate rules will be subject to do a an upper down fifty one fifty fifty fifty actually by an orchestrated by Mitch McConnell so I'm still Dole likened the word on that because I I was noticing you know because we covered a while back the initial segment where you know we asked you somebody somebody who listeners whoever asked you like hey could McConnell just not hold an impeachment vote at all just not even deal with it. It's been months it's back and so I was a little foggy on and I was seeing but I remember your answer was yes he could do that. and I've been seeing late. Recently McConnell made made some comments where he said no I have to I have to bring it up. Rules are rules are rules all of a sudden. I love the rules rules rules. I gotTa do it and I just have to say. I'm a little confused because all of a sudden not just complaining about commenters and all that but like people in the media all all of a sudden McConnell's Word is the Gospel Truth and it's the weirdest thing like once. He says something that I think people kinda wanted to be true. I guess that that he would be required hired to bring up for a vote. Everyone's like well. He's on the level so well yeah of course now he's right. He just has to bring up and I was trying to posting a little bit on social media. work worked my way through this because I I was confused by the reaction to it and I think you ultimately set it all but it just it wasn't quite in my brain that the constitution in no way requires that he brings it up for a vote but the Senate rules do but there was still the workaround. You're talking about here which is if you really wanted to. He could do the little this one weird trip to not have to follow the rules ever yet and that's one hundred percent and so when McConnell says yep gotta do it. He's sure he's right but like that he you know he's also Mitch McConnell like he's saying this for a reason and the reason is he. He would not ever want to either spend the the political medical capital to do this. The cover for Donald Trump is somebody. I'm sure he doesn't really care about or it's just smarter politically for him. He's the perfect evil we know. He's he's always going perfect evil thing so it's just weird that so many people in this one instance where like well he's just duty-bound in this case so yeah no that that is that is exactly exactly right. I actually have a in in preparing for its its item number six knicks. It's item number six in the segment which you know may get pushed off into our our patriots special but I have insight into why Mitch McConnell has and wide Lindsey Graham has been Lindsey Graham Right and and it's terrifying and I will share that with you but but but I want to I want to kind of move back because I agree agree one hundred percent with everything you've just said and I will point out bright. That is the underlying motivation behind Yodel mount right it is the idea that Mitch Mitch McConnell for for all of the fact that he's Mitch McConnell and he's pure evil and we agree with that it is not unconstrained right like there are lines that Mitch McConnell won't cross not because you know if we're oh no no no no because if it were like oh we'll build a volcano lair. Eat this puppy be right like I'm sure he would do that but the question is what can he do and still get reelected to the Senate right and so that there are I look. That's a lot aw right. I think it's a cost benefit thing. I think it's here's what I think went on in his Frog Breyer Lizard Frog whatever animal he has brain which is okay well. If if this were a supreme court justice he would just do it. He would just go okay appeal to the chair. Whatever change the rules? It's no problem he would one hundred percent but because it's something that doesn't really need to do because the the Senate is just going to either if it gets to the point where the Senate has turned and is going to convict then I'm sure McConnell doesn't want you know then he's fine without any way and he president pence or they're just going to not vote to convict anyway so he doesn't need need to fall on the grenade himself and stop the thing from going up to a vote so given that that's what he already wants to do his. He's going to present presented in this way while I'm duty bound so that it doesn't look like he's you know he's so Machiavelli and that's that's my read on him and I firmly believe that to be true. I think yeah that's what he wants to do. And then he'll find the justification it turns out in this case. It's easy for him to just be like Oh yeah. Then them's the rules they weren't the rules a minute ago with the the Supreme Court justice but them's the rules and you know me. I always follow the rule. You know I it. I think we are saying the exact same thing in two slightly different ways. I I agree. I agree one hundred percent. I would add sort of two things number one just to underscore what you've said. Remember that Mitch McConnell can say yeah we we have to hold the hearings but the Republicans can move to dismiss after opening statements the Democrats did that in nineteen ninety nine it was voted down in one thousand nine but maybe it'll be voted up in you know twenty twenty who knows right so yeah like he can literally like just have have speeches and no testimony and hold a vote so there are lots of ways that McConnell can still McConnell while saying oh look like I followed the rule well. I was totally nonpartisan here so I agree one hundred percent with respect to that and I would add a bunch of people sent me a vox explainer on this which Trumka had a bunch of people and it's just a bunch of people now okay listener Thomas and others and ah but it is kind of delightfully naive right like it describes the law but without describing the fact that it's Mitch McConnell applying applying the law so you know it it goes through and it's like well you know it would take two thirds of a vote to change the Senate rules and that's that would be true if we didn't live in in an era in which Mitch McConnell has already changed Senate rules by claiming that they're ambiguous and guess who gets to decide if they're not ambiguous Republicans so yeah so that's the trick like the way it should work. Naively you would need two thirds or whatever because like well. This is not an ambiguous rule. We all know it's not an ambiguous rule but because it's Mitch McConnell. He's just like I don't know what it means anyway fifty fifty one fifty one okay. We change it okay. I'm glad we we covered that it was it really you've noticed this too right like even in the vox article the way they talk about it. I people still have a hard time dealing with breath McConnell what he actually is it feels like to me and they they're leaping for the chance for him to just be saying the truth I guess I don't know it's weird. I think that's I I think that's one hundred percent correct journalistic instincts. It's sort of hard to say well. Okay you know Darth vader today reported that yeah well the laws of all Veron's. He's an appeal to the decision of the death star all right. I think we can't and that on any better note so time to move on to our next segment after a quick break opening arguments is brought to you by Joi bird summer is the time to relax and enjoy the best in life and you can do it right from your own home whether you're throwing a backyard barbecue and ice cream social or quiet night with the family you want furniture that feels uniquely you joy bird empowers you to create the furniture in space that brings you joy and keeps those Oh summer vibes flowing all year long they've released their summer. Look book featuring items like the Soto Outdoor Chair Liam Leather Sofa and the jewels brass grass planter with joy. Get one of a kind furniture crafted to your unique taste. Turn your ideas into reality with hundreds of styles and options one a sofa and aquatic blue or indigo love seat in the hottest read an inviting coral or even a bubble gum pink. 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Oh this is going to be fun to talk about hearsay hearsay explainer also this this might help for the bar on the future for me but there've been a lot of claims thrown around about here say the fact that the look it is so foolish to even try to filter through the levels of nonsense of explanations explanations that this is. I don't know if you're going to try to or if you want. I could take a stab at it but I don't want to if you were going to do it anyway. I don't want to trample on what go go ahead. Okay let the the levels of excuses right so here's here's what I think happened. We have a whistle blower and he you know or shear they whoever blue their whistle quote the whistleblower and so then then the the defense was way they just have secondhand information whoever that is they weren't in the room they weren't on the call and as far as I can gather that's actually true they weren't and this was a blur was not on the call. They heard other people talking about the call and so then Lindsey Graham and others you know who who are just a completely sold their souls are saying you is hearsay then you can't convict someone based on hearsay and what I love about this is that simultaneous to that they also released the transcript quote unquote this summary of the call which has everything we need to know so. What is this argument that it's hearsay you release the thing okay? Forget the whistle blower. Let's just go based on what you released done. That's not hearsay say AM I. Am I missing something well you were you were all the way right so you've correctly described the argument being made by idiots and and you are correct all the way up into the fact that the the alcon is is also here saying right which which helps underscore how stupid this argument. It's like this is literally the equivalent of the that's just circumstantial evidence that we debunk in awful movies all the time right lane circumstantial evidence is very often the best kind let me get this straight under under this theory then the only impeachment hearings that can happen have to be if you you have an impeachment panel present during crimes committed. I don't even know right because right you you couldn't you couldn't impeach President ended for murder. You could only impeach the president for attempted murder or assault right like and he would have to assault a congressman. Someone directly involved volt otherwise yeah so so let's break this all down. This will also be really really helpful because as you will learn this is outside outside of a particular question in real property something I have alluded to before the rule against perpetuity which is incomprehensible insane in and not part of a lawyer's daily practice of studying. I also want to just tease. One more thing that I meant to add to my explanation I saw Lindsey Graham claim you can't can't even get be convicted of a parking ticket and then I saw someone else tweet. Actually you can end so I posed that question to Andrew and I think we're going to get the answer Sirnak Nasa you will get that answer so teaser there go but other than the rule against perpetuity as the studying the evidentiary exceptions exceptions to the hearsay rule is like one of the if you ever are at a cocktail party and somebody says oh they're a first year lawyer. Write their first year out from law school or they're a law student. Be Like oh the hearsay exceptions and my right Bro and gotten a bunch of t three B questions wrong we will get to it but so first. Let's start with the only factual factual thing that that Lindsey Graham has correct which is the whistleblower complaint is in fact hearsay bright and the specific. It's right there on page page one. This is not hidden right. This is not something about which he she they should be embarrassed. Were embarrassed. they say I it was not a direct witness to most of the events described so okay yeah now. What what is hearsay? Let's let's start with the legal definition Nishin everything that is here and again. I'm doing this not to do that. Webster's dictionary defines a contract is that which is on break-up or L. breakable such a much better line you just one of those problems where the common like you know. The common everyday we day definition of the word hearsay is so much different than I think than the legal definition that everybody's like. Oh hearsay just means like rumor that you know of course where she can't convict someone that just means like I heard on the grapevine. The president was a criminal. It's like now yeah. It is a direct analogue to the circumstantial evidence right so in at Inva- law hearsay means any out of court statement that is offered for its truth value okay. That's that's what means it doesn't even have to be by someone else right so perfect example. I write an email and then you call me to the stand and say this detoro has in your email. What did you say that's hearsay me testifying about my only the email is right now very good to get this man and you'll be sitting there thinking what will will that doesn't seem like that seems seems like it would be pretty reliable to ask Andrew what he wrote in his own email? You're damn right it would be right so so hearsay does not mean you know suzy's suzy's cousins third nephew. No hearsay means any get out of court statement that is offered for its truth value and let me speak for awesome out of court because you were just saying you were testifying to what's in your email yeah everything else everything else that you testify to incorporate his testimony readies director her either eyewitness testimony or expert testimony right so when I'm on the stand and you say Mr Torah as you know how taller you and I say I'm five foot eight. That's direct testimony off finally some non hearsay in this trial based on your height yeah so it just describes everything other than my my actual testimony on the stand and I should add that that that little caveat when I say it's an out of court statement that has offered for its truth value Oh you you might be like well. Why would you ever put a statement in that's not offered for it's true and the answer? Is We as lawyers do that all the time right so for example. If you were to say Andrew have you ever communicated with Charlie's Barron right I'd be like well no and then you would say your honor. I'd like to introduce into evidence this email from Andrew Torres to Charlie's therein and I'd be like Oh man that's right. I did did spend all of two thousand seventeen sending emails to Charlotte's there. this May or may not have happened but the but the important point is there. It doesn't matter what those emails say believe me does not matter what those emails you're. You're not offering the emails to prove the things that the emails are saying. You're offering the emails as proof that I communicated with Charlie's Ferret that I tried to anyway but I sent her an email so it doesn't matter the the content lawyers actually used this all the time and I'll tell you the the biggest way in which this this often comes up is when you have settlement communications right settlement discussions between lawyers are the contents of those are confidential but I can tell the court Oh oh yeah well I sent them twelve different settlement demands and they never responded to any of them and I frequently have said things like that right. That's not hearsay because does I'm not offering the previous demands to prove the contents of what I said. I'm offering them as proof of an underlying underlying act makes sense so far yeah cool so put all of that together. Here's the big takeaway. Hearsay is a rule of evidence okay. It is a rule about how we present certain kinds of information in a trial it. It's not a rule about how you prepare organized file a complaint either civil complaint or begin a criminal oh complaint right and every I'm GonNa give you the the world's easiest example here you call the police and you scream agreement the phone help get out here. I just heard a gunshot next door and they say that sounds like you're saying we can right yeah did did. Did you see you the gun right. No police show up right and they knock on your door nearly next door. I heard the woman scream mm-hmm help help I've been shot and then they go to the door and you know what they can do. They can bust down the door and go inside and try to rescue the women right. Those are exigent circumstances. That's why you don't need a search word or at minimum they could go back to a judge and your hearsay testimony would be sufficient to get a search warrant to to invade their house. This happens literally every day. In criminal investigations the the Federal Rules of criminal procedure explicitly Blissett Lee State that a grand jury can hand down an indictment based on hearsay because DA and it has been well settled since at least nine thousand nine hundred fifty five. That's as far back as as I could go that not only can a grand jury hand down an indictment based on hearsay they can hand down an indictment on and nothing but the hearsay testimony of expert witnesses that is an expert witness is not testifying this to the specific facts. They're they're only testifying this to hypotheticals right so again think about that really straightforwardly suppose you have a crime scene and it's been cleaned up and you bring being in the CSI guys and you put them on the stand and they're like okay. What did you see I saw a hole in the window? That was approximately you you know seven millimeters in diameter and what is that consistent with well that is consistent with a bullet that has been traveling in extract so they offer all of this hearsay expert testimony not based on any actual facts that they observe just based well based on facts that they observe but not connected to any underlying crime and they say yeah based on my experience as a ballistics expert. Somebody fired a gun in this house well who owns the House Thomas Smith Okay and and you can go get an indictment of Thomas Smith Grainger can be like yeah. That's enough for us to say. Let's arrest Thomas Smith and charge him with you know gun firing. Well assume that there's also there's also someone who's GonNa win. The gunman gone missing right so that's been crystal-clear stew clear for half a century more than half a century and that's because hearsay is not fundamentally about reliability ability right again. I sort of I sort of gave that analogy. Now that means that means that there's that the entire now your underlying premise of campus complaint on hearsay is one of the stupidest things you could possibly say right because a complaint right beat a civil civil complaint or a grand jury indictment right is the start of the process right and from there you investigate right when a grand jury hands down an indictment that means Thomas Smith you get arrested. It doesn't mean Thomas Smith you get convicted it. Doesn't it means we said okay we think that there is a sufficient reason to believe that we should hand down on arrest warrant and that Thomas Smith could be charged urged with a particular set of crimes and then we compile the evidence and have the trial right so well into add whoa one more layer of inception level stupidity here. We're not even talking about criminal. Isn't this impeachment I am granting the the premise that high crimes and misdemeanors entitles you to this being akin to a criminal trial that this is really going to be an important question and I want to file it away for later because when the impeachment hearing thing is is underway all of a sudden you're going to hear Republicans right the same Republicans who had no problem putting away tens of millions of African Americans for for possession of small amounts of marijuana for the past thirty years all of a sudden talking about the importance of of proof proof beyond a reasonable doubt it is clear to me that the founders did not intend for the burden of proof in impeachment because impeachment just means removal from office to be at the same level of proof of locking somebody up and depriving them of their liberty right so so but all of a sudden believe me put a pin in this because you know six months from now we're going to have Lindsey Graham tearfully addressing the cameras about how the essence the bedrock of the American judicial system is that you are innocent until proven guilty beyond a reasonable doubt not true and impeachment shouldn't be true an impeachment but we're going to hear it but look let's so so let's kind of go back and and Kinda rap all of this up the argument is the whistle so blower couldn't file a complaint based on hearsay. That's total nonsense but let's assume for a second because the complaint is only the beginning of the investigation tradition and Lo and behold exactly what happened is exactly what we alluded right which was the ice took the whistle blowers complaint and he didn't just say okay well it. It's your say that's fine going to run this up the flagpole no he conducted his own investigation to determine whether this was credible which by the plays what the statute requires him to do and in the course of that investigation he contacted several of the sources he accessed the transcript he corroborated rated the whistle blowers complaint with actual admissible evidence which is how the system is supposed to work and by the way that's as you alluded to it that we now have sufficient evidence to corroborate the whistle blowers initial complaint so so everything related to the filing of the complaint is is is just nonsense and it's worse than that because grant the hypothetical. It's it's it's not true. I want to be exceedingly seating. We clear on this but assume all we had assume we had no transcript. If we had no other witnesses right which by the way we do you have we don't know who those people are but we do know that the people alluded to in the whistleblower complaint are people that are known own in some way to the ICG and those people eventually will testify before the the house impeachment inquiry but suppose we didn't have any suppose all we had was the whistle blowers complaint and the transcript okay that would be more than sufficient to form the basis of a criminal conviction in law and the reason for that is the the second part of all of this which is hearsay doesn't mean what the Republicans are pretending it means and lots and lots and and lots of hearsay is perfectly admissible at trial and this goes back to the way we began the segment right which is one of the biggest things that that budding young lawyer study when they are practicing for the bar exam are the myriad exceptions Sion's to the hearsay right so here's as a rule of evidence. It is the federal rules of evidence eight. Oh one eight three can confusingly using Li I don't. I don't have any re- I can't begin to explain why this is the case. it's rule eight. Oh Two that says presumptively hearsay your say is not admissible at trial and then the rules around that kind of bracket the the different exceptions so Roida one is not about exceptions. It's about the definition of hearsay itself and it says some things that you might otherwise think of as hearsay say are defined as not hearsay for purposes of the rules so in other words these aren't exceptions and this is where the bar like tries to to trip rip you up and you might remember this future T. three BS yeah it it will say yes because the statement statement is not hearsay or yes because the statement is here saving an exception admissible under an exception yeah and you have to know the difference right so I will just I get that wrong well. It's not that hard if you think about eight Oh one says here's the way you think about it. Remember hearsay is anything that isn't the testimony Tony of the witness on the stand right. That's being offered for its true value. Then eighty-one says Oh but also we want to let in some out of court statements eight minutes and we don't want these to even be thought of as hearsay at all and they basically fall into two categories that is prior statements made by the witness who's on the stand and again there are a bunch of different specific sub criteria but easiest way to think about it is right. I'm on the stand and I say Yup. I have never communicated with Charlie's Farren and you say didn't you tell me in your deposition that you did communicate with Charlie's Farren. That's a hearsay statement. Arguably well not say arguably that would otherwise fit within the definition of hearsay it's excluded from from the definition under rule as we say those kinds of prior statements of the witness being offered to impeach the witness fall under the eight zero one. They're not hearsay at all they get to come in and also and this is the major application statements that are made by the opposing party in a variety of capacities right so official statements made so you know Exxon I have a the the CEO of Exxon Mobil on the stand and I say isn't it true that you know you're a you know evil money grubbing scumbag and he said now come on and then I say well in fact and I hit play of a of a of a Republican fundraiser where he's sitting at the table and says we know as an evil money grubbing scumbag and and and guess what that statement is not hearsay under Rula one because it prior admission by an opponent that could who'd possibly apply to some of the underlying facts in the whistle blowers complaint right we don't know but if he heard some of the Co conspirators spiritus we know that the whistle blower was not on the call but knows people who were on the call so if he heard some of the Co conspirators talk about the call all that then becomes not hearsay even though it would otherwise technically fit the definition so that's the one stuff then we get two eight oh three which are statements that are hearsay but are admissible under the various exceptions. I've told you that this is a nightmare for law law students to study so you WanNa take a wild swing at how many specifically enumerated hearsay upset a exceptions there are enroll eight. Oh three it feels like a lot because again I you know I get this wrong on the bar all the time. It's impossible. I is so hard but I'm GonNa Guess Gosh. How many could there be seventy two? I I appreciate that so you're gonNA feel good now. They're only twenty three now now. It feels like a lot more. Some of them have multiple sub parts. If you count all the subpart it's a lot and yeah people memorize this sort of complicated list because the bar are we test it. You know it's things like you know religious records from the you know that never happened but but certain hearsay exceptions a practicing lawyer practicing trawlers like me no because they come into play all the time right. I'm not going to go through all twenty three year that would be ridiculous and take forever but for example subsection six are records of a regularly conducted activity right subsections Evan is the absence of those records subsection are public records nine is their absence right and so a transcript of outgoing presidential phone calls to diplomats is one hundred percent a record of irregularly conducted activity right this is how go back to the thing like when I am in a civil lawsuit and I want to introduce emails sent by the company's. CEO Bright that they're gonNA fall under this regularly conducted business records exception and there is no no doubt in my mind that the transcript if we ever got to a an official trial would be admissible under this exception to the to the to the hearsay rules so that that Telkom on one hundred percent rural eight oh three subsection six so all of this is to say now how hopefully all of our listeners know a little bit more about hearsay because we could have done this as a three minute segment. This is nonsense. grand juries can indict on hearsay but but I want you to understand because I believe everybody making this argument. Ted Cruz was making this argument and Ted Cruz. ooh Is Harvard lawyer right like the people making this argument know that they are lying to you and they know that they are trying to take advantage integer of the disconnect between the public perception of the word hearsay and the legal definition of the word hearsay and that's why I definitely wanted to. I took them all right well. Let's take a quick break and then we'll start yodeling. I think and you alluded to this at the start of the segment would shock running running late I shy I have shared a very simple screen shot. I will also link it in the show notes. That conclusively proves proves that the lie again this is a deliberate light is being spread by Mali's Z. Hemingway and the federalist magazine Garbage Dump whatever the Hell it is that that says that the whistle blower form was changed a week before this complaint came out and it used to prohibit Hibbitt complaints based on hearsay testimony and now it permits it that is one hundred percent ally. It is an easily disproven ally because I'm uploading the April version the May of twenty eighteen version of the form which clearly says this. This complaint is based on box information. I have personal knowledge of box information. I learned from other box both right so it. It's it's it's one hundred percent nonsense I'm GONNA walk you through the entire pernicious aspect of that story in the bonus opening arguments is brought to you by quip folks this. This is a true story. I just got my query fresh the other day in the Mail I love it. It's so straightforward. They give you a nice neat bag. Everything's labeled perfectly. They they tell you here's what you do you get to replace the battery got replace the Blue Brush head and here's some toothpaste it's awesome I love quip. Quip is the only toothbrush you should be using because because quips sensitive vibrations with built in timer guide gentle brushing for the dentist recommended two minutes thirty second pulses ensuring an even clean. I've said it before we're I need that because I will space out and completely Russia or slash brush like one two three for an hour and then rushed the other. How many fifty have the other forty nine haven't repeated normal man? I have the normal now quit. Automatically delivers brush heads. Do you every three months for clean new bristles right on schedule. That's what I got in the mail just the other day. It was nice. The sleek intuitive design is simple to use and comes with a travel cap that doubles mirror mount these thoughtful features make brushing something. You'd it actually WanNa do twice everyday good habits matter to live a healthier life so help form fresh oral habits with Quip Quip starts at just twenty five dollars and you'll get your first refill pack for free a get quip dot com slash a this is a simple way to support our show and start brushing better but but you have to go to get Q. Ip Dot com slash Oa to get your first refill free go right now to get Q. U. dot com slash because people have gotta know whether or not their president's so you're not aware of any contacts during the selection how many times you have to answer this large extent. It's corrupt and it's fake asked the president of Finland to question place Sir all right. I think it's time for a little bitty Yodeling as much as we can cram into the limited time we have but there's a lot I C item. One here is State of the Young Ladies and gentlemen. The state of our Yodel title is strong. The state of our Yodel is strong yeah. I'm GonNa Lincoln the show notes. article popped up on my feed. Fox News Judge Andrew Napolitano right dude who hosts a right wing talk show opie UPI at a not particularly popular one on Fox News wrote a lengthy article that says Donald Trump has committed impeachable crimes in trying to bribe the president of Ukraine to dig up dirt on his political opponents in exchange for releasing military aid that was voted by the United States Congress. That's pretty significant. The polling thing is obviously trending in the right direction which oh by the way is a Thomas was right is one hundred percent what you said which is once once Democrats start leading on a thing then that's the change fairness. I mean it's really hard to say like is it. The Democrats actually leading on on it or is it just the this latest controversy is more easily digestible and understandable and it seems like there's a you know there's there's a smoking gun in in this case. It's hard to say but I do have to think that it's at least both like May of course once Democrats rally around this then a bunch of undecided Democrats or Democrats. I'm not sure are going to be like all right shore you know of course you know I have to jump in because I did put a pin in the the new Yodel Mountain intro or the new addition to the amount intro. Did you catch this because it was the kind of thing I don't know if I'll say a lot of people okay like this and I usually I disagree because he can ride all kinds of stuff but this was one of those things like if someone wrote this. It would be the most brilliant thing did you did you catch trump's press conference with the President of Finland. It's it's it's a shame we didn't have Nixon. Do this thing you know where he's going on a tirade of just a normal unhinged rant about how the corrupt curb media whatever now ask the president of Finland could like it's just too perfectly. It's too perfect I the whole all of Yodel mountain all trump's presidency is that you and I both know he doesn't give a clown horn about the president president of Finland. We can only assume like after that tirade the question is like so House Finland broadly speaking yeah. I guess I don't you don't nobody you've it's so good so I wanted to add that because I think it's a perfect just a tiny little encapsulation of love his scandal and him unraveling ask the President Fim question there can continuing our monty python theme there is a fabulous Finland song in which I think it's Eric idle singing the choruses Finland Finland Finland Finland. Has It all yeah this is. This is a basic so look here's where we stand with respect to the congressional impeachment inquiry Corey Number One the democratic decision to nevertheless go ahead with the several week recess in the House of Representatives while keeping the House intelligence oversight and the and the to be formed and House Impeachment Committee present has turned out to be very smart tacticly so they thought they were suspending so they're allowing lots of the house to guard break but they're just leaving certain committees and exactly correct exactly right even though that was an option okay and as it turns out like the you know the old aphorism of you know when when your opponent is dousing himself in gasoline offer offer them a match and then stand back. That's let's look that's what they've done and and it's it's working out. The impeachment. Inquiry formally voted so we discussed the importance of that in last Friday's episode Adam Schiff has been very very busy the House Permanent Select Committee on intelligence served Rudy Giuliani with a subpoena yesterday and and that requests I'm going to link the document in the show notes that requests everything and it really reveals an interesting disting- wrinkle that is going under reported in the news media but I I want to emphasize here. There are two separate Britt instances kind of general buckets of trying to pressure Ukraine right. One bucket is pressuring Ukraine to dig up dirt on Hunter Biden which by the way is just an unbelievably stupid in the crowd strike and all of that we have talked about how preposterous that is. I want to continue to emphasize that that it is based on the idea that the real jio election interference that occurred in two thousand sixteen was not Russian interference to elect Donald Trump but was in fact Ukrainian interference to elect Hillary Clinton that is stupid for at least two reasons one because we have the Republican Senate Intelligence Committee that Confirms Firms as we have quoted on the show that Russia spent billions of dollars over the past decade trying to destabilise democracy accuracy in the United States and elsewhere and specifically intervened in two thousand sixteen to Benefit Donald Trump and hurt Hillary Clinton. We know that for a fact act from the intelligence committees and number two that Hillary Clinton massively under performed in the two thousand sixteen election so if that's how Hillary Clinton did with Ukrainians right like I mean th you know but every political candidate from Huron for would be like I would like Ukraine to intervene on behalf of my opponent Hillary Clinton lost an unloseable election so the idea that you would want to see like Oh yeah but she would have done on even way worse than that without you know crowd strike. Is it just I don't understand how people can simultaneously believe believe these things but you know but but there it is all right so the Hunter Biden portion is a it's another one so we need to be again. You know we need to be upfront about this. Hunter Biden is a is not Joe Biden. Yeah I is somebody trading well yes but he's also a the classic right talentless child of famous person trading on his name right so he he was being paid this is this is one of the only actual facts under he was being paid by the Ukrainy by the Ukrainian company. Burr Sima Holdings Ltd fifty thousand dollars a month to serve on their airport k. That's a lot of money to somebody with zero talent and skills to add their last name to America baby. That's the country we live in. You know what you're right. The trump's would never do anything I but but look like we we point that that the only flaw in the whole this is of utmost national importance for us to get to the bottom of which by the way not remotely but but the look like at the you know we've talked about this is not one one millionth of what Paul Manafort and Tad Devine did in Ukraine but fine. I'm all for holding people accountable. The only problem with this theory is that the prosecutor that Joe Biden intervened to get dismissed on larger corruption issues was the prosecutor who was protecting hunter you buy it absolutely is one of these. The only way to make this conspiracy theory make sense in your demented rightwing Bremer stated it wasn't protecting hundred buying there wasn't a case there bull but budget wasn't the prosecutor wasn't prosecuting anybody right and that worked to the advantage. I e the fair right but but in other words it was not a case where the prosecutor had indicted Hunter Biden or was investigating interpreter Sima it was as you point out the exact opposite the prosecutor was by all accounts corrupt not investigating anything and so- dismissing him can only be bad for hunter by right it it. It may not necessarily have you know it may be neutral but in no way could be good right like when when you have somebody who's corrupt and not investigating you in office getting rid of them does not make your situation Shen better right you want if you're hunter Biden and you have committed crimes and I'm not saying that he's committed crimes. you would want the corrupt guy who's not doing anything to stay in office. Biden's intervention was to get him out of office so none of this mix any sense all of it is sort of being being thrown up as a smokescreen and really kind of halfheartedly so here's where we are right now. The Various Committees Committee's working in coordination have sent subpoenas to Mike Pompeo they have sent subpoena to Rudy Giuliani and today they heard closed door testimony from Kurt Volker. That was the a special envoy to Ukraine who was appointed by REX Tillerson who resigned when the whistle blower complaint came out. We don't know anything about that closed door testimony yet tomorrow they will hear closed door testimony from Michael Atkinson. That is the icy I g the inspector general next week there. It will be a deposition or interview with Marie Yovich. That is the former ambassador to Ukraine who was dismissed is missed in May of twenty eighteen that has after Lewinsky was elected and after trump decided that he was going to lean on Zielinski. You may recall recall that this person was referred to obliquely in the phone call in which to the president of Ukraine the just elected president of Ukraine. Donald Trump describes a career diplomat as quote the former ambassador the woman she was bad news and the people she was dealing with in the Ukraine and by the way that's trump saying the Ukraine not me were bad news and so I just want to let you know that obviously that's an appalling stupid thing to say. It's also slander of a career right leaning civil servant right this this is you have an oval. was joined the Foreign Service at Twenty eight in one thousand nine hundred eighty six. That's Ronald Reagan's foreign service. She was elevated. They did under Bill Clinton. She was elevated to ambassador to the curious republic. What used to be Kirghistan by George W Bush she was assigned signed to Ukraine in two thousand sixteen and then recalled right after his Alinsky one in May of twenty nine thousand nine you can draw whatever whatever influences you know you you want from that but but but those are the sternly worded letters that have gone out mm-hmm and and look now is the time to remind folks of what we reminded folks at the beginning of the Mueller probe which is that these things serving subpoenas you you you have to bake in two weeks time to respond so folks who think the president is going to be impeached before Halloween? That's that's not gonNA happen. we're moving more quickly now but this is still a wheels of justice turn slowly there is a tremendous amount of information out there and and I guess I will end on the second all of that kind of falls under kind of fell under category one. The really interesting to me story about the Giuliani subpoena is that it also involves communications. The second area of corruption in Ukraine is pressure on Ukraine mean to retaliate against witnesses who cooperated with the Muller Investigation and turned over information regarding Paul Manafort and we have records that Rudy Giuliani met with Paul Manafort's lawyers while Paul Manafort was in prison that I think is a potential smoking gun yet to come right that is clearly potentially evidence of the cover cover up of the retaliation of you know Giuliani as trump's new fixer going to Manafort and communicating to his lawyers. Hey you know paulie stays strong here he's probably looking at a part and but you know if he hangs out to dry. You know who knows what could happen. I I don't know for a fact that that happened. it I I don't I don't know in any way that that happened right but but it certainly is something something that the House Select Committee on intelligence is curious as to whether that did happen so lots of stuff boy more stuff. I wish I could tell you about that. I guess we'll I guess we'll cover in the in the Buzzer but I want to make sure everybody gets kind of everything covered from the story and I think I've hit the high points anything I'm missing. There's just so much. I don't know if it's all a yodel mess yeah but Okasha unravel it more. I will link in the show notes because I want everybody to have access to this. we have ironclad evidence from a Muller indictment in twenty eighteen that when you see Republicans repeating the though be civil war if trump is impeached that is one hundred percent a Kremlin manufactured talking point people were indicted it on the basis of that a year ago so when you see Republicans repeating that let them know they are either deliberately or as unwitting stooge parroting align manufactured by hostile foreign power to try and subvert our democracy I don't know if that's sufficient Shaimaa Lindsey Graham but it ought to you know it really shouldn't what a mess and Thomas and I know you're super super way over time but I absolutely want to answer question we got Multiple Times from multiple folks related to the the consequences of impeachment and look. I I WANNA say I wanNA bracket all of that that I still think the most likely outcome is that President President trump is not convicted in the center right I think the long term consequences of that will be disastrous for the Republican Party they may realize that and he may be convicted in the Senate and so if that's the case we've had I think a really really interesting set of questions as to who could could trump just run again and and and the answer isn't quite as straightforward as as you might think that that it might be so I I wanted to hit on. I also wanted to clarify because we got a couple of questions on this that the the president can still pardon people apple while he is being impeached so he could potentially pardon all of the witnesses against him that would be a double edged sword yeah witnesses on his side or what do you mean. You're right I mean he could he could he could he could pardon anybody so he could dangle pardons for people who would otherwise testify against because he could grant pardons to people who will testify that he didn't say the thing he said on national television and who knows right like that that presidential power remains ineffective even while being impeached because being impeached is the trial right buttoned buttoned Lincoln not kick in like the Mo- would be if the if the Senate like the minute they vote sixty six whatever hypothetically to convict or is there some further yes the the the moment that he is they that the Senate votes to convict sixty seven or more votes than he is no longer president and he no longer has the power to pardon but until that happens he retains the power to pardon but and I think this is where people may be got confused he does not have an and and the president as we've said on this show multiple times has the power to pardon himself. Even though that's probably a little bit of an unsettled question I think the law and history and precedent it is very very clear that that he has the power to pardon himself but he does not have the power to pardon his own impeachment or anybody else's impeachment he could not resign mid impeachment and have pence pardon the impeachment park right so that is a limitation that the president's pardon power does not extend to impeachments will what does it even mean to pardon appeasement or do you mean any crime within the impeachment hearing no no he he could he could pardon himself for crimes and and could not subsequently be arrested and convicted post first office. He just can't say oh. I'm the President I'm pardoning myself from this impeachment okay well. That's all nonsense going. It's not a huge not a huge limitation but folks have asked about the other question about could he just run again. the answer's almost certainly no buying convicted. He's convicted right in the Senate. Sixty seven plus votes kicked out of office. Could he just run again in two thousand twenty or twenty twenty four right right and the answer is no but here's why it's a little bit tricky right so article one section three clauses six to seven give the Senate the sole power to trial impeachments and it says and you'll see that this language is a little bit ambiguous judgment in cases of impeachment shall not extend further then to removal from office comma and disqualification to hold and enjoy any office of honor trust or profit under the United added states but the party convicted shall nevertheless be liable and subject to indictment trial judgment and punishment according to law now the second half of that is really clear you impeach the president isn't kicks him out of office and then he can be indicted tried normally right once he's no longer president but the question is are those is that I clause is at conjunctiva destructive right in other words when you impeach does that automatically disqualify him from holding any future the office of Honor Trust or profit and I I have to tell you even though linguistically right it Kinda does right like linguistically you would think oh it's an automatic conviction as it turns out from from history from precedent we have never we've impeached two presidents but we have never convicted a president of impeachment we have impeached and convicted article three judges and in every single one one of those cases the Senate has held two separate votes. They've held a vote to convict and kick the judge off the bench and then a separate separate vote to disqualify that judge from holding any future office of honor trust or profit so yeah so like it's not not just an automatic thing it's part of the process they also have the power to say whether or not they want to disqualify this person going forward forever right exactly actually right now. I cannot imagine as a practical consequence that if you've got sixty seven votes to kick trump out of office that they wouldn't add on yeah by the way he wants to that point where they're actually going to turn on trump. I can't imagine them wanting is almost a certainty that they wouldn't. I didn't want him to be a right to run because the whole they would find every exactly right yeah but but but it's a really really interesting in question and to be consistent in my jurisprudence right like I I can't take the you know sort of originalist plain meaning of the I wanna look and see historically. How have we handled impeachments and we've handled impeachments with two separate votes so say super sense to me? I I could see possible symbol scenario at least maybe in the founders minds. I don't know where it's like well. We're impeaching you for this conduct but like it's not it's not serious enough to say you never get to run again Dan. I don't know I guess that conceptually make sense. There could be something that's like all right. We're impeaching you and you know but but it's it's similar to to how when you're convicted did of crimes there's different kinds of sentences different lengths of time that we we WANNA keep keep you in in prison or not and maybe there's like something that's just just just worthy of impeachment but not enough to say you can't ever hold any office again in your life and that seems to be a possibility contemplated did by the United States in by the United States Senate in the nineteenth century if not necessarily at our founding and today right. I'm so sorry so there we go. I guess I have so I have the insight as to why Mitch McConnell is Mitch McConnell I so so much I wanNA share involve being burst out of the dirt in inside a little cave that he had a UH sack. I The insight as to why Mitch McConnell's right. That's what you're referring to not quite close but not quite so not not the yeah all right so there's so much there really is and we haven't even gotten to thanking our patrons for a first timer Friday with yeah okay we it's kind of funny that we made the switch so that there'd be a little more time on Fridays but then we decided to have a bunch of first timers so we're here's what we're GONNA do. We got way too many first timers to thank for one week so we're going to space it out so don't worry if you don't hear your shoutout don't panic it'll be in future weeks. We're going to space these out for a while so that we're not just reading names for eternity the so but here we go our first batch of first timer Friday. Take it away Andrew All right thank you to carl canoes Daniel swallow swallow Justin Bowman Jason David wet more Caleb Monica Lewinsky May newnham Jonathan Helen Michael Cran Phil. We'll Megan Sweeney Brandon Smith Bagi Bobby Clark John Reese Gene. 'em Go Forth Corey Hunt Paul Clark Anthony Mack. I'm sorry Makola jazz vomited and Levada Room deposited. I'm sorry if I botched that guy. I'm doing my best James. Smith Mike Yukiko Sashi Olivia Mike Montoya Trick Track Barnes Coleman Berdahl Mary Thomas Joshua Joshua hutchins angry Mac face unexplained fires or a matter for the courts fantastic Kenya narrow commercial John Higley Kevin Newbold Chase daily Don Adam Reynolds Jerry Osborne ran out of episodes in the back catalogue now to make my way through and I assume that means patrons stuff head Cold Sneeze Austin uh-huh. 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DC Hooligan Nickel Don John Jennifer Mosca Bob Brown Corey is no longer normally oh nice vincent stupid Watergate length final create a Patriot account Japan. Eh Jake S Corey Biting James I only read Playboy for the Philip K Dick Short story in Meta Craig Wiltshire and Carl lots of returning patrons as well which is saying yeah have you back but and I and I left. I left out to two names. My apologies Tom Faulkner faulkner to Larry County public defender. The best defense money can't buy and Ryan. Oh all right well all those fine fine patients can enjoy enjoy this extra long bonus segment coming up but first of course T. three with special guest. Oh no social sperm has ever failed walked awesome talk to the hand. I need you close. That's one of my mission parameters. Trust me cry allowing and we are joined by a special guest forty-three. It's M. Chlor little sneak preview of our a Tuesday episode which is going to be an interview on Brexit on the recent decision lots of stuff but for now Emma McClure is here to play T. three how you doing doing Emma I'm doing fine. Are you worried. Are you nervous. Maybe I need to start cycling. I'm fine because I'm I'm to use the excuse that this isn't mine yeah. That's a I should use it. You know I don't know Canadian bar. I would be fine. That's that's my area but all right well. Let's hope this is not a real property question. You know that dates dates back to thirteenth century Saxony because then you know as solicitor you know you could argue but we're not gonNA make that argument all right buckle up this is a question about a bright twelve year old child who attended a daycare center after school. The daycare center was located near a man. Dan Made Duck Pond on the property of corporation during the winter. The pond was used for ice skating when conditions were suitable at a time when the pond was is obviously only partially frozen the child sneaked away from the centers property and walked out onto the ice over the pond ice gave way and the child child fell into the cold water he suffered shock and would have drowned had he not been rescued by a nearby passer-by. At the time of the incident. The a pond was clearly marked with numerous signs that said then I keep off when the child sneaked away from the daycare center the center was staffed with a reasonable number of qualified the employees and the employees exercising reasonable care to ensure that the children in their charge did not leave the premises there had not been a previous instance of child coming onto the corporations property from the Daycare Center. The jurisdiction follows a rule of pure comparative negligence that that that should totally help you Thomas in a suit brought by the child's behalf against the corporation and based only on the facts above who who is likely to prevail a the child because the corporation owes a duty to keep its premises free of dangerous conditions be the child because the pond was an attractive nuisance see the corporation because the danger of thin ice may be reasonably be expected to be understood by twelve twelve year old child or d the corporation because the daycare center had a duty dependent on now. I'm the sucks to because I need to know I know the okay pure comparative neligence negligence. I can't remember which one's which now comparative negligence which one's the one where they you assign blame name based on a percentage. I can't remember all right. What do I think is going to be the rational thing to do here? The I mean the question takes pains reigns to talk about the fact that the you know the daycare centers reasonably staffed they were exercising reasonable care but that the child just like excess knockoff and it's the first time it's ever happened pure comparative negligence who who is more negligible in this scenario. It feels to me negligent time. My brain was on bullets. Yeah who's to say that my brain was already onto something else. mid-sentence yeah who is more negligible. I think the child is the most is negligible but in terms of negligence. I would have to say that I it seems to me that the corporation to me slightly more like maybe it's hard. You're near a daycare center. But whose fault is it that they're near. A daycare. Center is really the corporations faulders the daycare center during the winter. The pond was used for the ice skating. Let's make sure I'm not missing anything child. Wow I just don't this is this is really hard even just like rationally speaking for for me to to say like who would be more fault the daycare which seems to have been exercising reasonable everything versus the corporation I'm I'm not sure I leaning toward the Sheild winning because I think the the deal is it's the the child brought a lawsuit just against the corporation so they didn't they didn't try to go after the daycare center the PRI- following the money. I guess although the Daycare Center I'm sure is loaded with insurance so they probably should have gone after them and I'm guessing the corporations defense would be something like well. It's it's actually going to be the daycare centers fault so that'd be like d which was the corporation because the daycare center had a duty keep the child off the is so that's an attractive one so let's go now through the answer as the child because the corporation owes a duty to keep its premises free of dangerous conditions. I don't really love that because I'm not sure that's entirely attack right. Be for some reason. I'm kind of attracted to beat. Maybe it's an attractive nuisance but be the child because the pond was an attractive of nuisance. I don't know why I just feel like that. Something about that answers sticking out to me see the corporation because the danger of thin ice may reasonably be expected to be understood understood by a twelve year old child. Now that's interesting twelve years old you would you would actually think that would be old enough. I mean twelfth. You GotTa know the then and Isis that's I it's not an eight year. Old is not a six year old twelve. You're almost going to high school in a year or two so hopefully flee. You know not to go on thin ice. Maybe that's now that that complicates things. I'm I'm down to. BC Or d D is a simple the corporation because the the baker's duty. That's that one's Gosh. This is a hard question because I really see it going either way attractive nuisance this is really hard. I was GONNA eliminate see because I know I don't know why but then when I re read it again as a twelve year old they should they should know how old I don't know now. I'm yeah this is impossible. How about and I have a streak at stake too? I think right three in a row this is can I flip three do into the lane. I feel like D. is the very simple whole answered. D. is the like all right. Sorry you got to keep the child offer death pond. That's on our property. I think that's you know what I'm GonNa. Keep it simple. I'm GonNa go with d the corporate you know they there's going to be I'm just GONNA go. I'M GONNA keep it seem. I think that's the the straightforward answer. I'm GONNA I'm. I'M GONNA hope they're not trying to trick me although then again they're trying to trick me with a reasonable number of qualified employees and the employees are exercising reasonable care D- I'm very attracted by be for some reason and possibly see but I'm going with the Obama. How'd you so? I'M GONNA. I'M GONNA I'M GONNA say Miami is between I am initially because my sympathies with twelve Rochon twelve-year-old recuperation between the two of them going to say the bay. I'm going to Colan attractive distracted because it's been in it sound sensible and then then I'm GonNa go with a on the basis the pulling from my knowledge I went to law school on preaches at different jurisdiction. I know that from negligence in the U K the U on reduced to keep your premise dangerous things even if someone's breaking in I'm to steal from me on guy with a child. That's a strong argument. You're probably right. I you know what Don Darn Ok well. That's it though them's the rules I went with our esteemed. Guest went a and you'll have to tune in Tuesday's episode to find out who got it. Rub May hopefully we both got case scenario for me but I the best. That's the best thing I could so I would add to things here number one. This is it's a question I would have gotten roared if I had been forced answered. I want to see to that one and if you'd like to play along with Tom Osama. I'm a you know how to do that. Just share at this episode on social media include the Hashtag T. Three B. e. include your guests in your reasons therefore we will pick a winner and shower that person with never never ending fame and fortune fame and fortune guaranteed okay like we said there's going to be a nice bonus. PA a segment here extended edition for patrons even though Andrew Andrew. How long can we extend already at it at least ninety minutes? I mean how much we're GONNA need a bigger boat yeah. We're we're. We're GONNA need a bigger nigger podcast but we love our patrons so we want you know we want a lot of people pledged. WanNa give you something extra again this week because because we love you so stay tuned patrons everybody else will see you on Tuesday with a fantastic interview with Emma McClure on Brexit and a lot of a lot of madness involved in that so we'll see then law this has been opening arguments with Andrew Thomas. If you love the show and want to support future episodes please visit our patriach page Patriot dot com slash law. If you can't support financially it'd be a big help. If you leave us a five star review on Itunes stitcher or whatever podcast delivery vehicle you use and be sure to tell all your friends about it eh question suggestions and complaints email us at open arguments at gmail.com the show notes and links are on our website at. WWW DOT open dot com be sure to like our page on facebook impose on twitter at open ARCS until next time. 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