OA437: How To Play Hardball If We Don't Win the Senate


They don't waste time trying the motions. Don't win call you lady justice you tell me whether sandwiches and then i'll tell you fat dog enough women on for nine fifty will love each other both a women of why that up and no side. Welcome to opening arguments a podcast. That pairs a comedian with a real life lawyer. This podcast is sponsored by the law. Office of the torres for entertainment purposes is not intended as legal advice and does not form an attorney client relationship. Don't take legal advice from a podcast. Elo and welcomed opening arguments. This is episode four hundred and thirty seven. I am thomas that is andrew. how are you doing. I am fantastic. Thomas how're you well. I don't know this is a weird one to record ahead of time. That's weird wonder. Look this is what we do. The the cats out of the bag. You all know the magic behind the show we record on thursdays we record the rapid response and then record the tuesday episode. This one is a weird wonder quarterly Because we don't know what's going to happen between thursday and when you're hearing this but this stuff is we're talking about still needs to be covered and i assume if anything absolutely crazy has happened. We'll do an emergency episode. So there you go. We've got a lot to talk about still and it's time to play some hardball with chris. Matthews hardball joe biden. Or us down down down to law down all right andrew. I the potential good news as much as you know. We covered last last time as we left it. It's looking like forty eight fifty in the senate but with the to georgia races out standing but tell us why they're still reason for optimism. Yeah the look. This is like you said The the main of this episode is going to be. It's time to play some hardball. And that is what does joe biden do if he has forty nine senate seats right or forty-eight like what what if what if mitch mcconnell remains majority leader. That's going to be really really bad in ways that you haven't thought about and we're going to talk about how to play hardball against mitch mcconnell. We're going to start circulating those ideas right away and and look. That's a real possibility like we're counting on forty nine point nine. Nine seven percent of the vote Sending a purdue to a runoff. That's an error like ten guys so we wanna make sure we cover. That and people will appreciate. I think getting that out there but i wanna start with heck. We wind up with fifty one votes. Let me i give you kind of what seems like a mathematical impossibility. Medical impossibility is right. Now thom tillis the republican Leads cal cunningham. The democratic candidate for senate in north carolina by ninety seven thousand votes. And as far as we can tell there are about one hundred and twenty thousand votes outstanding in north carolina We understand okay. North carolina hasn't been called on the presidential level because The margin is is smaller. And you know of those hundred and twenty thousand. They're going to be pretty heavily democratic. But you probably look at what the naked. It's not going to be a hundred ten to ten right. The ninety two percent democratic andrew. I know you're optimus prime but like you're you're kidding yourself right and the answer is i'm not kidding myself. And and here's why it has to do with what happened at the supreme court last week two weeks ago now by the time you're hearing this and it involved a case that we gave a one sentence summary to And now you're going to get five or ten minutes on all right. Yeah it's a case called wise versus cer- kosta and it went up to the Entire on vonk for circuit and the fourth circuit twelve to three right so For circuit is a left leaning circuit. But but that is Partisan across the fourth circuit Ruled twelve to three That in north carolina all ballots postmarked by election. Day can be counted can be received up to nine days later that is now up until november the twelfth. That is this coming thursday so two days later. Then you're listening to this. So there will be no final results in north carolina until thursday the twelfth now that also then went up to the supreme court because republican party challenging. Going to be my question. Supreme court already denied relief. Five three so five to three Cavenaugh voted To deny the request for relief And amy coney barrett did not take place in any of the decisions The reason we know that it was five three is that There were there was no written. Opinion issued But there was a little note on the minute order. That said justices thomas and gorsuch would have voted to grant relief in this case because of course they would because it literally like it might as well just say because of course they would be so. That's been decided. That is the procedure in north carolina cannot be challenged. There is no lawsuit trying to challenge it. North carolina's gonna count until this thursday may might be saying okay but how could right like i get a couple. Ballots are going to trickle in. Is it going to be enough to cover. And ninety seven thousand vote. Lead prop rob pope lee. Not but that gets us to the confluence of the second lawsuit that potentially makes this possible. And that has to do with our friend judge and she sullivan of the us district court for the district of columbia the same court. That is currently the michael. Flynn case the same court before which Our opening arguments opening arguments branded amicus. Brief is pending before judge sullivan. He has he has read it right so okay. I'm a little giddy about about judge sullivan of the shenanigans. Going on and being reported in the popular press about the post office We covered that in opening arguments episode. Four fifteen You remember all of those news reports right That that dejoy was ordering The end of over time changes to scheduling destroying ballots sorting machines all sorts of stuff like that and so a bunch of different citizens activist groups led to by a group called vote forward but there are others that are involved as well Some individual plaintiffs of osaze Unidas austell montagna. I apologize for my high school. Spanish accent there The the so a bunch of of citizen groups at the end of august filed a lawsuit in the us district court for the columbia assigned to judge sullivan seeking and injunctive relief And a against dejoy and the post office requiring them not to slow down ballots. And that's still going to not only. Is that suit still going that suit. This kind of got lost I think we talked about it for like a minute. Or two I it got lost on election night because of course it did But this was an example of where on election day itself The plaintiffs brought before judge. Sullivan evidence. That the post office was sitting on balance right and sitting specifically on two different kinds of of ballots And i want you to know the names of this because This may be front and center by the time. You're visiting new hanging chads and butterfly ballots of could be right so they were sitting on one. Category were outbound ballots. Right and that is Win you ordered when you instructed. The state elections office to send you a mail in ballot and they were sending it you whether the post office once. They received that ballot to your whether they sent it out to you and those outbound valid scores are are not great for a couple of days before the election right so. They're in the nineties for the last week of october but then on october thirty first it drops down to eighty percent and you can imagine right like that is hey a week and a half before the election. I said like a mail in ballot. The elections site says yeah great. We're going to send you a ballot. And then the post office is like yep but we're not going to deliver that deal right. It drops from eighty percent to seventy seven percent on the monday before the election and to five percent on election. Day itself now again. Why does that matter because as we went through on the tuesday's on on that Election day episode in many states. When you requested a mail in ballot you had to carry and you and you did not vote by mail. You could still vote in person but in many many states whether you would be allowed to vote regular right and be counted that night or whether you would be issued a preliminary ballot would hinge upon whether you could bring that uncast mayo ballot with you right and so not getting. The ballot meant that you got put into the provisional buckets and provisional buckets get counted last right so that's all bad on outgoing ballots. But what you really wanna look at. And what judge sullivan really really looked at was what we call incoming ballots and what they mean by. Incoming ballots are. I have filled out my mail in ballot. I have dropped it in the mail. It has been received at the post office but not stamped and not processed. It has what they label it as no outgoing destination. Right and those ballots. Here are the numbers. Now mind you. Some of these may be Sequential and over counted. There were hundreds of thousands of ballots. That were sat on by the post office in the days. Leading up to the election is going you they do the election. We discover that louis dejoy is like smog in the hobbit you know. And there's all these ballots ballots. He's hoarding we know right. So this is these are from court. Pleadings two days before the election. There were three hundred. Twenty two thousand incoming ballots across the country that were not postmarked that were not delivered to election officials and I posted this up on our social media account if you look at the distribution of wear ballots were not delivered. They were overwhelmingly. Not delivered in. The swing states rang so in other words. There are when you when you look for the states. That had more than ten thousand ballots Not delivered that were sent on time but just kind of mysteriously dropped on the floor and not processed. It is the i five corridor in florida where joe biden drastically underperformed his poll numbers. So that is not miami but the the kind of corridor of Orlando and tampa bay So A big blue stripe kind of dark blue stripe down the middle of florida. It was in new mexico and arizona and parts of southern california. Which i think are just has to do with how the What areas that post office covers then between twenty five hundred and ten thousand undelivered ballots in the west coast in ohio in pennsylvania in maryland and in north carolina with a kind of a gerrymandered little tale. That goes down into northern georgia. Yes so put all of that together. We saw for example in wisconsin that wisconsin just had a hard deadline right if the ballot didn't even if it was postmarked on time even if it was sent in good faith even if you sent it in a week early if they delayed your ballot in wisconsin and it didn't get there by election day it didn't count it got thrown out if that makes you mad. And you're wisconsin voter then. Make sure your vote against republicans. Because that's who did the steel other states like. Pennsylvania has the three day grace period. But you know. The supreme court ordered those segregated so they could steal them if they wanted to North carolina has a nine day grace period. That's been upheld. And so i do not know. So here's the bottom line. I am not telling you that cal. Cunningham is going to win the senate seat in north carolina. The numbers do not favor him. I would not wager on it. I would rather be thom tillis if i wanted to. I mean i wouldn't wanna be thom tillis but like be cal cunningham either in fairness but like i'm not saying that he is a favourite. I m saying that there is a reason why nobody has called this race As of the time that we record this and that. I think no one will call this race. Even after we record it and that is Because this lawsuit is ongoing so now so what happened on election day itself. I almost didn't tell the story on election day. Itself judge sullivan ordered the us. Postal service To comply with an election day order. That says you will send them to read you from this minute. Order you will send postal inspectors their designates to processing facilities in the following districts and order a sweep of the facilities to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery and that was ordered in central pennsylvania philadelphia detroit colorado wyoming atlanta houston alabama northern new england crater south carolina. South florida lakeland in arizona. Louis dejoy for the first time of of any trump administration official told the judge no filed a report. That said now. We're not gonna do that as you might imagine. This did not make judge sullivan. Very happy and judge sullivan has ordered subsequent orders. Over the next couple of days They are continuing as we record this right and so there is an order out right now. Directing the parties to inform the court As of literally the time that we record this Quote whether they agree with the court's order that usps employees shall be directed undertake sweep of the facility on the morning and then again in the afternoon of november six. That is friday november six to identify all inbound ballots and then as of the time that we recorded this They order that all of the usps processing facilities that serve a state with an extended. Ballot receipt deadline shall until that deadline passes performing morning ballots. Sweep no later than ten. Am local time and a mid to late afternoon. Ballot sweep that is tied to ensure that any identified local ballots can be delivered that day. Upon completing the sweep each facility shall report the usps headquarters. The total number of ballots identified and. Confirm that those ballots have been expedited for delivery to meet applicable extended state deadlines beginning today at the time we record this on november fifth and until further order of the court. Defendant shall promptly submit a single report with the total number of ballots identified through daily sweeps with one exception for facilities that are located in states. Whose ballot deadline is that day. Defendants shall submit the result of those sweeps to plaintiffs immediately following the receipt of the results of the second sweep of those facilities. That order was entered today to tell me what all of that meant. It means that because of the shenanigans. Two things are going to happen right. The first is. I don't know how badly louis dejoy and the post office screwed this election. Yeah i can't tell you. Okay i can tell you. It wasn't millions of of it doesn't appear to be millions of it's right but it does appear to be hundreds of thousands of votes. Is that enough to have shifted the vote in texas or florida. I don't know probably. I probably not. I can't tell you. I can tell you it will not. There's nothing we're going to be able to do to uncall- texas and florida even if it did if it did we will find out right in december. It'll be too late But biden will already be president. We'll find out. Oh by the way Be should have one two or three more states who knows all of that is kind of on the side as you're thinking about like what does this election mean what it means. Is that one of the many tactics that the administration used was to instruct the post office to slow down the delivery of completed mail in ballots knowing that those ballots would disproportionately favour his opponent and it means because of their cavalier disregard that looked at got away with on election day right like they were ordered by the court to sweep for missing ballots. And the didn't do it. They told a sitting judge to go clown horn himself because of that the judge has now that the good news is the judge has said okay but to the extent that it matters and it matters in north carolina. You have to sweep. You have to do a sweep twice a day until next. Thursday told november the twelfth until it is passed the deadline for counting votes and in every other state that allows those ballots to come in late right which includes pennsylvania tomorrow right but which will have been last friday by the by the time this comes up you have to go through. Fill out a sweep and then sign under penalty of perjury and that was specified in the first order. A how many ballots were found that they were delivered that they were expedited out and that the sweep took place And that will continue. We will get daily updates from the us. Postal service Until the close of ballots being received in north carolina and in any other state. So i don't know like i. I can't tell you what's going to happen. I can tell you you know that the numbers strongly favor tillis but but there you go all right well. I'm not counting on that. Because i'm negative on but who knows be nice surprise if it works out. Thank you dr hibbert. I rest my case you rest your case what. oh no. I thought that was just a figure of speech case. Clo- okay andrew. Now it's time to i guess. Prepare ourselves for the worst case scenario. Which is i mean. Unfortunately still very probable. Who knows who knows how it's going to end up. So what are we looking at. If in fact we get a biden victory and come up just short forty eight or forty nine in the senate. We're looking at an. And i wanted to cover this. Not just to give a healthy net. Get tron dose to the show after Going through that a segment but but to start laying the groundwork Because here's what's going to happen. Joe biden will be able to accomplish far less than anything. Obama did in his last two years or that trump did in the entirety of his term. Okay and i think people think right. There's the sort of baseline of oh okay. Well it's going to be divided but you know it was divided for trump. So you know biden get executive orders and appointments and you know so. At least we'll have that that will not be the case Joe biden will be able to do very very little And i suspect that if they are looking at a republican senate that they've got two different game plans right that the game plan for what to do with a republican senate Probably looks like this. Looks like we're gonna be able to pass laws. That should be no brainer. Because of you know we have a criminally insane game. Show hostess president right now but you know can we pass covid relief where everybody agrees. We could probably do something like that. I don't know about that well. Negative on is alive and well. And that's fair. I believe they're the mcconnell point of view will be never ever give a democratic administration. A win of any kind. They don't i think that's plausible right. So so let's talk about. Let's talk about that scenario right. We can't pass any laws. Because mcconnell says the same thing he said in the last two years of the obama administration so what can we do. We can undo trump executive orders. Right that can be done with the stroke of a pen. That is the one. And the only thing that joe biden condemned do is undo previous executive orders and issue new ones. We can rebuild executive agencies from the inside right that is begin to hire competent people to staff positions. That have been gutted and filled with you know trump loyalists unlike twenty-four-year-old graduates from liberty university and crap like that We can not doing anything else you were. Doj could certainly investigate the trump administration and his cronies for crimes. Yeah that is one good thing. It gives me a little bit of happiness even though. This is overall very devastating. If we don't take the senate it really is very devastating but maybe punishing trump a little bit for stealing from the just. How do i even summarize for everything he did could yelp well and and look like if i were advising president biden. Any kind of 'em in this. That would be part of my carrot and stick approach. When when i went to mitch mcconnell be like look if we can't do anything if what you're saying is don't bother because you can't do anything then. Okay then i have an awful lot of to carry out an awful lot of investigations in care. What loyalty will mcconnell have to. Trump is have any loyalty to trump. But i think it will reveal an awful lot of the corruption that took place and again you know does does some of trace back to mcconnell to elaine like kind of looks like it does not claiming that it does i m claiming we have some time to take a look and figure it out if there's nothing to do but i want to stress this what i wanted to do in this segment is talk about. Is i scare you a little bit with mitch. Mcconnell doing to joe biden. What he did to barack obama's judicial appointees right and that is not just saying. Hey you don't get to fill any judges. Which i believe he will do right. I think if we don't tap the senate there is zero chance of any judge getting appointed and so are already drastically critically. Overworked courts will go into the red deeper into the red for two years I think that also means by the way that when we take back the senate in two thousand and twenty two it there will be a nationwide right like it'll be a no brainer To pash what will then be the judiciary act of twenty-three and expand the courts But but look we'll get no judges but the other thing and i want to start introducing you to this term and i want to get this out here early because if we've lost the senate We need to develop the battle-plan their one hundred executive branch appointees that are what we call p. s. offices that is their presidentially appointed but with the advice and consent of the us senate right people like secretary of state right and the principal deputies right the attorney general right and the assistant attorney. General are confirmed by the senate and mitch. Mcconnell absolutely could decide to take the same tactic he took with. Respect to merrick garland. And say you send me somebody on a like. I'm not even gonna hold a hearing on them. I'm not gonna give susan collins and lisa murkowski and mitt romney a chance to defect. I'm just not gonna stick it. On the calendar there is nothing we can do about that but there is something we can do in response to that and it has to do with the federal vacancies. Reform act five sections thirty three forty five under five. Usc thirty three forty five. The president can appoint an acting official. You've seen donald trump do this and you've seen donald trump be incompetent at a because the way what what trump was able to do was able to sneak through was he got a bunch of people confirmed for the jobs that they were doing. And then once you have been confirmed by the senate then under the vr. A sort of easier to shuffle. You around to other jobs right and again. The idea is that advice. And consent of the senate is meant to serve a gate keeping function so if you pick somebody and again example for donald trump you pick somebody like a ken coochie that even other republicans are like man. This guy is sleazy and incompetent and extreme and stupid and we're not going to work with them right and so can cuccinelli never been confirmed by the us senate right even the republican us senate so what you do is you you you you move up. A bunch of different senate confirmed guys around but that that mitch mcconnell says No we're not going to hold a hearing on anybody. what can you do. And here's what you can do. Section thirty three forty five a Says and three says that the president may direct a person to perform acting duties if that person served in a senior position in the relevant agency for at least ninety days in the year preceding the vacancy at They do not have to be confirmed by the senate they do not have to be an acting deputy somewhere else and so you can do and and at by the way. This is what they did with ken. Cuccinelli slight sidebar. Ken cuccinelli was illegally appointed But the thing they screwed up was not creating the job but they didn't they created the so. Let me first explain what they did. They created a brand new position at the department of homeland. Security called the principal deputy director and then they appointed ken cuccinelli to that position and then immediately transferred him to make him the acting director But the problem was he wasn't there for ninety days and never been confirmed by the senate so then they made him the acting senior official for like one hundred percent serious about this. They would have gotten away with it if they had just waited the days. Yeah because what they tried to say was well the principal. Deputy director is the first assistant so therefore once we make him the first assistant then he can become the acting bubble and and and and again you know. The the overriding theme of the trump administration was unrestrained evil. Checked only by incompetence right. So you're joe biden. Here's what you do for every executive department you fire everyone down to the level of the people you can trust who were already working in your agency so In some agencies that may be nobody in things like the department of justice there are many many many many many many good seem your career prosecutors shaef ing under donald trump who would love to be acting attorney general right and there's a complex system We've talked about before it. Our chief zachary villiger episode to figure out. You know who gets to be acting when there's no attorney general. There's no assistant attorney general. Those no deputy attorney general. There's no principle acting senior attorney general right. have we seen the last of dzhizak retur wilder. We may have seen the last of jesus so you fire everybody. Which by the way i just want to point out though. That's not something that normally you'd happily wanna do you know like in two thousand eight. This wasn't what obama had to do career because this is the kind of thing that that's mainly necessary because of the extremism of this last administration. Yes exactly right. So fire everybody. Who's a trump loyalist. You create a whole. You pick who you want to be your secretary of state your attorney general your secretary of transportation you create a whole bunch of principal. Deputy secretary of state decisions to the regional manager. Yeah the court. I will tell you. That's i know that that's a joke from the office. And the reason that i know that is because that joke is cited in the footnote of no i was going to quote it on the air but i realized i know the contexts so i was i waited for you to make it but yes You you create principal assistant to the regional manager and that's one of the office jokes that's in both the british and the american ones so we can all laugh together across across the pond in all share a chuckle. They must be a gs. Fifteen which is the level of government employees. But it's four point. Three percent of the federal workforce right there. Seventy five thousand. Gs fifteen out there right now right so you got you got a large pool to choose from and nothing to stop you from creating a whole bunch of new ones you stick your would be attorney general right at the new position they gotta they gotta stay there for ninety days but then at the conclusion of the ninety days You can appoint them and not only. Can they certain so. You may see that. Under the federal vacancies reform act That they can serve for a year. That's kind of true. Okay except that there are additional benefits to to joe biden in this situation baked into the r. a. And i'm going to read those to you now right so typically you get the person you make your acting whatever. Can we talk about this with chad. Wolf can only serve for two hundred and ten days. Chad wolf has exceeded is two hundred ten days And that incompetence as we've talked about the f. e. r. a. provides relief where ordinary citizens have standing to sue to render void benicio any actions that an acting director takes that are not authorized by law. So a big chunk of stuff. That chad wolf has done is going to get invalidated right. That's super duper clear. So we don't want a big chunk of stuff that joe biden's acting attorney general and acting secretary of state or is going to have to. We don't want all that invalidated so we got to play by the rules. But it's not hard to play by the rules here because they're two bonus points on timing that will thwart mitch mcconnell and it is this section first. Let's start with thirty three forty nine a That is when you have a new president coming in you. Get sixty transitional inauguration days So if the vacancy occurs at any time during the transitional inauguration day you then get ninety extra days to fill that vacancy before the two hundred and ten days. Kick it raoul so to ten plus ninety plus sixty is a whole year right so you gotta start teeing up the process again You know this time at the end of you know twenty twenty one beginning at twenty we just to have different appointees have second so you get you get. You'd like your secretary of state to serve for more than a year right. But i'd much rather have two secretaries of state than sorry. How mitch mcconnell Do they alternate. Is that what it is. Well i'm saying the first one would would serve until their time runs out. And then you'd have to elevate another person. That's that's all that's a quick transition but it's better than letting mitch mcconnell dictate your secretary. I'm trying to figure out how the full four years is covered. Because you've said there's a year limit so yep do we have four different secretaries of state assuming we take back the senate in two thousand twenty. Oh yeah i'm not by the way. The map is amazing for demo de map. Amazing for democrats in two thousand because we lawn publicans bright for precisely that reason because republicans want in a bunch of blue states in twenty sixteen. We don't have time to go through the map super good for us and we can do that on a later episode so trust me on that but it gets better than that right because so that's the three hundred and sixty days and then to ten for the next one but section thirty three forty six goes beyond that and says because the acting secretary of state or whomever serves only insofar as the senate does not act on a nomination submitted to it right so what you do is you say. Hey i really really want. Elizabeth warren to be secretary of the treasury. By the way i'm gonna have it's gonna take me three months to get them out there but But this person. Elizabeth warren moon's deputy is presently toiling away at the treasury department as the principal acting sub director to the regional manager. And as from. Today i'm going to name that person secretary secretary of treasury. If you don't confirm elizabeth warren then what happens. Subsection b one if the first nomination for the office is rejected by the senate withdrawn. Return to the president. The person may continue to serve as the acting officer for moon no more than two hundred ten days after the date of such rejection withdrawal or return. Okay so you get a whole nother. Three quarters of a year added onto your sentence right subsection to said you try again right you say all right you didn't like elizabeth warren okay bernie. Sanders is going to be secretary of the treasury. And then mitch. Mcconnell says well. We're just which never going to hold a hearing on bernie sanders then thirty three forty six b two kicks it. Nobody else has noticed this. Be to says. I'm going to read it to you here on the air. I have researched the cases on this. I'm one hundred percent correct notwithstanding paragraph one the stuff i just read about how you get an extra seven months. If a second nomination for the office is submitted to the senate after the rejection withdrawal or return of the first nomination the person serving as the acting officer may continue to serve until the second nomination is confirmed blue or for no more than two hundred and ten days after the second nomination has rejected withdrawn or returned in other words f- vr. A will allow us to force mitch mcconnell tavern hearing because if he just sits on it if he just does nothing than our deputy assistance can sit around and occupy the job forever. Till the end of biden's first time i. There's not a thing that mitch mcconnell can do about it andrew. So i love this. I love that you've gone to the detail. I love the one weird trick. I love that. Nobody's checked f- subheading bc twelfth sub dash. Whatever it's great. It's fantastic that you did this. I love everything about this. I just want to point out. This is all so that we can check notes staff the government. I hate to be the negative. No no no also that we can have a person in a position. That should be a no brainer. Every single president before this gets to Even republicans say the president gets to staff their cabinet Just just keeping in perspective. H-how out -rageous. This will be when mcconnell inevitably tries to keep us from even staffing these high level positions. That should be a no brainer correct. And let me say. I am saying this in response to the reports coming out today as we record this show that mitch mcconnell if he retains control of the senate and again. This is an indication you know given that we recorded the show last that republicans. New they'd lost right mitch. Mcconnell was openly talking about. How this is. This election was a mandate for divided government. And he was going to force. Joe biden to submit centrists candidates for his cabinet positions. So mitch mcconnell has already. I'd eyeing this has already thrown down his marker. And i'm telling you joe biden does not have to give in to the thuggery of mitch. Mcconnell that the the the one weird trick that mcconnell got to hold in his back pocket that worked for judicial nominees and it will work again. Look we're not getting judge. You wanna talk about you know. How much should we pack the court. We will not get a single sitting judge. No matter how conservative no matter. How competent Under joe biden until mitch. Mcconnell is out as majority leader the senate. It will not happen. Our courts will will will slow to a crawl It will be especially bad on civil litigants because You have the constitutional right to a speedy trial and so underfunded and understaffed courts with judicial. Vacancies will just drop civil cases to the bottom of their of their buckets right. They'll just be like yeah. I'm sorry i can't deal with this billion dollar patent infringement lawsuit right now. I got a guy who was arrested for jaywalking. Got a schedule for a hearing and if you think that like typical republican constituencies are going to be super happy about the fact that like they cannot go into court and get speedy relief on their civil claims. Like you know you've never worked in big law and that's going to create pressures but look that's going to happen right. A mcconnell already. Did that for the last two years of obama's presidency. He's going to do it for the first two years of the biden presidency but he cannot do it with respect to cabinet level appointees unless joe biden rollover and so it is our job to make sure to get it out now and to stay strong. If we've lost the senate biden needs to know and he needs to be working on this now right. He has to be out there. Identify people into those assistant. Regional man yeah positions during out. Who were the gs fifteens in all of these departments that he can count on that would make quality acting assistant associate directors And and he's got act on it and he's gotta be prepared by the way in cases where there may be a vacancy for three months right To to be able to work without his best team of rivals around because democrats do that. Was the obama. Model like democrats try and staff. These positions with the most competent. The best voices to help them make decisions as opposed to donald trump hoop staffs them with these sycophants who will help him commit crimes. We're gonna be stymied on that. But ultimately jill biden has the better hand going to require some hardball. I'm thinking shows up for it and we're going to help them get there. Let's do it we have to i. I actually have some confidence. I you know i. As much as people you know justifiably so do get mad at obama for not realizing sooner that republicans. Were you know we handed republicans a bunch of border crap and immigration crap that they wanted thinking you know it would help us make deals and it. Didn't i think you know. Hopefully joe biden remember. He was there for that and remembers what happened and we will not make the same mistake twice. Let's amplify that a little bit. If you ask. Joe biden not only what was your biggest legislative. Screw up what did you get wrong in you were term in the us senate and also coincidentally what hurt you the most. As a presidential candidate he would tell you the crime. Bill of nineteen ninety-six right. I'm like that. That absolutely turned out to be a disaster for the country and a disaster for him politically and that was the result of clinton You know okay. Well you give us midnight basketball and we'll give you locking up black people forever and right like it and you know and also consensus was just different back then about what was good for fighting crime. We've we've litigated. This look at again right. I'm deliberately portraying it. In the worst possible light right like when i have defended that crime though and i ninety six ninety four i have defended that crime bill because it it got a nation i mean we get republicans to vote for nationwide gun control banning assault weapons right so i do not mean to suggest that it was indefensible at the time And you have both said that it was kind of an unfair set of attacks on biden but all of that being said that would be the opening argument. I would use right. Like i would say If i'm biden adviser and he says well should i go to mitch and try and craft and xyz arabic. Yeah man if you want another crime bill and ninety four around your neck But like you know this what they're gonna do to us and and Why don't we stop playing by the bill. Clinton rules and start playing by the mitch. Mcconnell rules that'd be my argument biden. You know the areas where. He seemed passionate. Certainly seemed to dovetail with the grotesque abuse of the system. That took place behind the scenes and again and again right joe biden was in the senate for two hundred years right like he knows. Exactly what mitch. Mcconnell did and is doing and i was on the senate so long inter. I don't know why he didn't fix covert understand. He was there for seven years. Not fixed these problems that happened under trump. Yeah that was a such a t you know. That's what made the difference for trump in the election that attack. I'm sure you don't wanna think. But donald trump got forty percent of the vote. I know i know andrew. You know what i hear when i hear you gone through all this. You know what i hear. I hear so many future. Oa deep dives. I hear so much to cover. There was never any risk that we run out of things. Were going to in either case. You know i i really. I'm going to be so devastated. If we don't have the senate re. I cannot have enough you. You cannot emphasize enough. We all can't just how bad that is if we don't win the senate it's really really really really bad but assuming we don't we still there's still things we can do. And there's even that much more we're going to need to do breakdowns of lots of one weird tricks to find every single you thing in our arsenal to get anything changed. It's gonna be it's gonna be a slot but hopefully it doesn't come to that and hopefully we pick up these two georgia seats if indeed. That is where we stand. We'll know this coming thursday right or friday. When's the final north carolina. Well we'll we'll know we'll know what our odds look like. This coming friday right so thursday. Is the deadline. Friday is when north carolina will certify will will finish its counts. I don't know that. The board of elections will certify But yeah we'll we'll we'll have an answer by the time probably to labor friday baby as possible but probably not probably We'll have to do a An emergency drop Or or put it on social media or something like that and again we think as of the time of the record that they're going to be two runoffs in georgia so think about it this way. It's really the difference if if cunningham wins his seat than it is flipped to coins. Get one head and you take back. The senate verses flipped to coins. Get two heads to take back this. It would be hard to imagine. There would be much difference in the votes between the races. Maybe but i feel like it's going to be so little to do with the candidates and so much to do with democrats fighting for control of the senate republicans fighting to not give it to us. I think that's right. But ultimately i think in in a purplish state like georgia. It's gonna come down to republicans who don't want to pull the lever for either produce lawfully right and i'm wrong on an awful lot this political cycle so let me not put my pundit hat on. You are correct in that. I said it. As a as to coin flips that assumes that the the events are independent of each other and obviously they are highly correlated. Yeah it might be one coin flip. Essentially if they're correlated perfectly one I will say this end as not amazing as it will be to have a fifty fifty tie because as we've covered that means joe manchin that means whoever the right word most democrat is. We'll have a lot of control in the senate. It's still an astronomical difference between short. Maybe joe manchin might stop. Some legislation probably will honestly stop some legislation that we want to happen. But it's it's all the difference for judges right. It's all the difference for appointments it. They're still going to be things that there's no chance that we won't have the democratic Consensus on in the senate. If it's fifty fifty. Am i right. Yes and i love that you went to judges look idiots the difference because you we will see god we're going to get it from you know certain corners but like it. It is the difference between because they'll say well. You know. joe manchin will veto elizabeth. Warren is treasury secretary. No he won't don't there so on that. Yeah i think. I think every democrat will support anybody that joe biden wants to serve his go and the second part is really the critical aspect. We need chuck. And i look like neither you nor either. Big fancy chuck. Schumer right like chuck. Schumer is a great guy. It's not like he's super progressive. It's not like he's a brilliant strategist right like doesn't matter. We need chuck schumer as majority leader to schedule hearings right. It is the difference between replacing on the damage done by trump by the way. Yeah lots if it's a big deal it is it is not just like oh. It's his judgment like joe. Manchin does not give one clown horn. Who gets nominated to be the. Us district judge for the western district of oklahoma right. But i do and you do. And and joe biden does and that nominee will not go through if we do not take. The senate is everything absolutely. I didn't even get to gosh. We're going to do another deep dive on. This can do eight seconds on one more huge thing which is remember went donald trump came in and overturned a whole bunch of late obama era regulations. Right that were passed in twenty sixteen o because of that one weird trick from because the congressional review act. I'm going to do more much more of a deep dive on the congressional review. act Because we have to just five. Usc section eight. Oh two but here's the thing that's a law and if you'll have by their own petard possibly if we own the senate. Yeah we can come in and undo the last six months everything. Trump does as rulemaking We we don't do everything with the congressional review act. It is filibuster-proof it will be glorious. You will love it. We need to have the senate for that. If we don't have the senate we will be stuck staffing executive agencies. They can overturn those trump rules. But they'll have to go through and follow the administrative procedure act. They'll have to hold hearings. They'll have to have public notice and comment. It will take longer and like that's not just me going man do it faster. These regulations are the regulations. That are hurting our friends right now right. These are the anti trans regulations in the military. These are the regulations putting kids in cages. Right these are the kinds of things that you know. It is to to change the guidance. I would much rather have every tool at my disposal than be deprived of a of a pretty big one. So yeah. that's that's thank you. For reminding me of that i i wanted to at least do thirty seconds on the sierra No sierra if no senate so there you go thank you. Time to think are hall of famers all time greats over on patriot dot com slash law. And i will start. Thank you to justice for beer. Checkout budget botanist. On fiver for all your virtual houseplant needs. Oh that's really if You know this is a One instance where cats are worse than dogs. We can't have any house plants because the cats eat them in the throat up all over. And it's the worst. I also even by my poor wife some flowers on her birthday. I've done this two years in a row. The cat eats them and throws up. And then i have to put in a plug for our patron longtime listener april path. If i know you've seen this but if you haven't seen the facebook pictures of her little kitty like i'm not a cat person and it is just adorable so anyway geez. We're going to give shout outs. Everybody with cat pictures. This is going to be a long true rob shock. Ceo of the kodori salesforce implementations and custom apps. Cool listening for years and still can't come up with something. Clever chelsea olson nevin dude. His cow wesley glennbrook becoming a patron five episodes week now to catch up on months of backlog new book the greatest gift of all a logical path from religion to humanism. By mark mclean out november thirtieth preorder now mat rogers for virginia forty seventh house district. Hope that went well. At casa is the best burry at emperors burris close second bradford. Now's not the best time to touching your shirt giddy. Great do coutry attorney general for the galactic republican district viral dominic liebenberg docket energy. Mary perez guy or blank. You box. Men's worst nightmare idea first screenplay airbud man's best amicus hadron. I feel like dark helmet. Because i'm surrounded by ails. I only have one or two shots left to say this before. It's too late now. It's too late but vote biden. Save america. I am an ancestor of marcus. Aurelius historic tudor. Junius rusty kissed to fabulous lesbians. Who tired of politics being exciting. Yeah william drew collins. bob newhouse sassy. Italy towards brother was murdered by trump supporter last year. So we really don't give a crap about hundred emails. Yeah sassy liters posted about this. I think in the group after we we asked about or indus story there. That's that's awful. They're not not much more to say if you're interested in the story check out the The facebook facebook opening arguments group. I think is where he posted it. Greg kramer canadian with increasing election anxiety trump did to the presidency. What michael bay. Transformers complacency breeds contempt. Vote now jennifer schakowsky. Hi i'm at hans. Royal and vote. Joe biden. That's it. that's my patriot. Name doug jones for torney general my call megrim lock love andrews law stories tall grim. Lock petro rabbits again. An old mad blind despised undying king. That dickens always with complement it with me. I'm meek us fly like dog freedom. legal cory seager By the way world series. Mvp cory seager my favorite cory. Cory booker is okay to guess angry. Mac face sorry. Andrew uncle frank is too far gone statehood for puerto rico american samoa guam northern mariana islands and us virgin islands center black trans sex workers. The books have burned. Podcast reviewing fictional depictions of trauma since twenty vote. Done flu shot done. Stay sane through november. Let me get back to you on that. Exactly the same i voted. I got my flu. Shot everybody. I mean soulet devote but do the flu shot thing. Yeah go early if you can. If everyone listed speed one point three they would find thomas's music is even more exciting inspirational. Thank you appreciate that. It's thursday and i still don't have badri on name. Wise stormy daniels tax deductible but not the only fans payments. I call. Change my patriot names. I don't jump every time you read it. Murray gregson thomas and andrew jury consultants. Yep yep that's for real. What do a banana and a lawyer have. In common appeal. I moved for a bad president thingy in illinois we pronounce it illinois and are all time great. He should never be dethroned. Conrad michael's my a-hole will stay tightly puckered until january twentieth. Thanks for that. Dash any dash putting opinion. This patriot named for later brent meddling jake brown alfred wallace. I'm steve. vote trump too sexy about trump trump needs to be impeached. I'm a lawyer. You know what. I mean when i christopher brown. It's election week. What are you drinking to drown out. The noise until biden wins lawful. Copter says he was going to vote biden but trump tweeted space force. And now i don't know into do. The wheels of justice turn faster than the speed. I changed my patriot. Name support co ops and not for profits man. I really porked my t. Three beasts cheek didn't go why there goat andrew titles but is in despair. Let me drink lots of water. I like ping totally clear. Open the lot not that chris. Wallace give demosthenes dot org dot org hokuto. Stormy decisive has the break from the shoutout for yet another panic attack sorry polly hernandez the previous patriot. Name is true. The next patron true new york judges are not non-partisan but judges can run under multi party's electoral fusion ds and rs make deals. I get no choice. Yeah dunkin dixon cuffy emily rainbows benz. Optimism is overrated. And what patron named you. Give to the podcast. Who everything your earn andrew. Thank you to jason us too. Hot speier dot com got are cut out for us. I guess jiu jitsu twenty twenty three. Well listen to today's episode. Maybe maybe not malania is at russian super spy. I'm afraid to look. Are we done with the worst time line yet. Maybe super precedent for super predator. This it's supreme dealing with republicans as playing prisoner's dilemma with someone. That always betrays you drop ethics. Go with game theory matrix tariff mandy pants biden harris or how. I learned to love the electoral college. No electoral college is still terrible. Thirteenth century saxony gravelled truck lawyer no idea what emotion lemonade is. But it sounds delicious. I am the bad things that happened in the philadelphia's take gritty diogenes the cynic was right jennifer crash. Jeff gill back unionized brooklyn friends. This truly is darkest possible timeline. Well maybe light at the end of the tunnel civil politics radio dot com fridays at seven pm eastern on valley free radio. Wash your hands then. Vote for joe biden. Well time to change that name but good work. Stephen baltica taste and of all time to get back to work. This country is still in a bad place. Yep mike hudson sucks. I'll be taking no further questions at this time philip kaiser andrea the arbitrary and capricious eric. Osman i like traffic lights traffic lights. I like traffic lights. Stop equivocating there. Vote biden by dawn. Twenty twenty. I hope you all voted. I pooped several mailboxes in your next alright. Well pain trumpet. Save me from my trumpet. Co workers who believe every live from his orange face. He don't have much more to go. We're going to be good us. Thank god she finally changed her stupid patriot on name jonathan. The wandering gambler clown horn the lame down. Horn guy chapman at skeptic one s. k. e. p. t. i g. u. y. One milo meed song is stressing again. You and me both brother. Boston live show. Twenty twenty one with lobsters and karaoke. Join your labor union together. We bargain alone. We beg put a pin in it and buy it. I mean your trump voodoo two hall. Therese chan a waterfowl. Telling jokes is known is a lame duck. Sorry i love that. James k. It's a it's an inception of de jokes. James k doctorate night. Homeschooling her kids in the day. Pretty sure my wife is superhero chad. T anonymous beans are my favorite minders because there for subjects more likely to put trump in prison well fair word origins dot org your source for legal terms from thirteenth century. Saxony welcome to your life. There's no turning back even while we sleep we will find you. R i p notorious. Rpg video killed the patriots pun. An undisclosed senior government official from an undisclosed red state by that is true that we do have a listener. Who is an undisclosed senior government official from undisclosed red state This is not timely but on election night watch table shuffleboard on. Espn to eight pm eastern seven pm central. Liz weeks. that's it. That's my name while we still love you. Listen derek terrified will be pest terrified. We'll be kicked to death by lame ducks a string of characters each of which is pronounced. Vote adam kosta j alden. Walt rhonda wants the most boring twenty twenty one possible. The corona virus apocalypse is making me too depressed to think of anything. Clever this week fair. It's november second. If i have to change my patriot name again because biden didn't win i'm done with you. People well us seem like a chandler. Try secular manslaughter. Soggy pants matthew vernon sexually tissue kasumi adopted homeless pet to post declaring an docking. Don't take legal advice from laser beam monstrosity. Attorney at law have their loveridge. Jeremiah's fancy microwave. Emporium in an alley tanneries ari ally bosnich who may have been somewhat high on our livestream david at brooklyn. My kid keeps playing warrior inside by leader. I am for it. I don't know what that is. So sam donell mitchell. No commutes behind on podcasts. Michael rhop's too exhausted to make a name this week. Natasha crush rap wants you to support. The justice policy institute agree with that one hundred percent. Sam buck and of course conrad michael's thank you folks so much pledging can't wait to give you more bonus stuff in this new era. It's nice to be done with election. Could it be great. We're gonna give strategy joe biden. We're going to attack him from the left. We're gonna attack people who attack him from the left when they're wrong. Talk about thomas. You and i had this vision of like helping people navigate normal news that guests the law wrong. We did not think we were going to have to deal with a gas lighting monstrosity. We did and and we made it through the rain and there's not that much longer now so there. We go no social. This firm has ever failed the bar exam. No kidding right. It is time for t three b. Answer time did. I start off this new era on the right foot. Yeah so thomas. This was a A self defense westbound stone law question. Yeah tombstone law so rancher in his neighbor disputing over where the boundary lies. They they both approach while you know. Ominous rattlesnake music plays in the background. I've a rancher gets to just say no. I don't think i'll let you arrest me today. And then the question. I'm a big tombstone fence. Great movie i i'm with you. I like i like tombstone so there you go again. More things we have in common so Rancher is there accompanied by four friends the neighbours alone rancher they both approach offense rancher gets out stands by his truck neighbor hops. The fence comes towards him. The rancher just shoots him inflicting serious injury. The neighbor brings a battery action against the rancher. And the rancher says no no. But i thought you were carrying a weapon so That's why shot you. But the fact pattern says that. That's just a subjective belief that he could point to nothing that would have reasonably justified. This belief is the neighbor likely to prevail And you narrowed it down to what you thought was the best no answer which is the sort of castle doctrine standard ground. No because the rancher was standing on his own property. It had no obligation to retreat. And then you said yeah. But we're not. We're not talking about. Just give a duty to retreat. We're talking about used force right. You shop the guy And you picked the yes the best yes. Yes answer d. It was unreasonable for the ranchers to consider the use of a gun. Necessary for self defense. And thomas were starting off the next two hundred on the right foot my friend all right good good election. Happy results here and happy results to t three. The correct answer is d. It was unreasonable for the rancher. Consider these begun necessary. For self defence the ranchers belief that deadly force was necessary was was subjectively actual but not objectively reasonable and You must satisfy both prongs in order to in order to defend yourself a not correct because Stand your ground here. I'm scott question. The majority of states that recognize a right to stand one's ground rather than retreat limits. That right to an owner who is confronted in his home. Yeah not one simply standing outside on land that he owns also even if the rancher had no obligation to retreat he used deadly force. which is not justifiable. Unless he had reasonable belief that he himself was threatened with that degree of force needed to use deadly for israel. So exactly right. I just. I needed to read that to you because i was to say well but like they use the same words you use thomas rhett like it's it's retreat is one thing but he was not the doctrine of retreat comes up. When you're in a scuffle right so is by just logic you can just kill anyone who comes over for dinner. Party like just no justification. I shoot anyone in my house. Yeah that's absolutely right and by the way you are also correct that the The other answers were were were kind of nonsense. Did we ever figure out if this test is getting easier. Feel like it's getting easier. I think the going with the obvious answer has been working out a lot more than i remember it working out the first hundred and fifty questions. We'll say i think what's obvious to you becoming more clear. Something has just become more clear. That's right so good well thomas. let's play the music. you are. Correct best heightened direct. He's not even a lawyer. And mr torres having your time machine and tell us who's going to win the georgia runoffs all right. Just tell us the winner of t three b. Is i guess. Well thomas and this is going to be no surprise to you. This week's winter is the entirety of the united states of and quite possibly all of the world. That's right just like we predicted in between when we recorded the show and win. The show is going live. Joe biden kamala harris has been elected the next president vice president of the united states of america. I can't think of a better way to celebrate that then this show and so we're really just for one day. We're all winners. Thank you so much for listening. That's our show. We will see you on friday. I moved for a bad thing. You mean a mistrial. Yeah that's why you're the judge. And i'm the law talking guy. This has been opening arguments with andrew. And thomas. If you love the show and want to support future episodes please visit our patriotic. Hfs on dot com slash law. If you can't support us financially it will be a big help. If you leave us a five seven i tunes stitcher or whatever podcast vehicle use and be sure to tell all your friends about us for questions 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 join the facebook group at facebook dot com slash groups slash yodel now and follow us on. Twitter at open arcs this podcast. Production of opening arguments media. Ls in reserved. It is produced with the assistance of transcriptionist. Heather muggeridge production assistant ashley smith and additional. Contributions from morgan stringer and deficit special. Thanks to theresa gomez who runs our live shows and had the wikki follow at oa with on twitter additional thanks to the moderators of the opening. Arguments facebook community. Emily waters elisha. Cook eric brewer natalie. New brian z. Canadian and theresa and finally thanks to tom. Smith who edits the show and created the fabulous things which was inspired commission.

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