OA #154

Show Intro

FLETCHER REEDE Your honor, I object.
JUDGE STEVENS And why is that, Mr Reede?
FLETCHER REEDE Because it's devastating to my case. (Liar, Liar (1997))

MICHAEL NORMAN SMITH I did, you know, the murders, but as you're all so looking forward to his I thought I'd plead not-guilty. (Pleasure At Her Majesty's (1976))

GOMEZ ADDAMS They say a man who represents himself has a fool for a client. Well, with God as my witness: I am that fool. (Addams Family Values (1993))

LIONEL HUTZ Mr Simspson, this is the most blatant case of fraudulent advertising since my suit against the film "The Never Ending Story" (The Simpsons: "New Kid on the Block" (1992))
LYDIA Welcome to Opening Arguments, a podcast that pairs an inquisitive interviewer with a real life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC 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.

THOMAS Hello and welcome to Opening Arguments, this is episode 154. I’m your host Thomas Smith, I’ve just been awakened from my slumbers here by one Andrew Torrez, esquire!

ANDREW [chuckles]

THOMAS Andrew, what’s going on, man? What are we doing here? It’s early!

ANDREW Yeah, we are going to break down the Stormy Daniels lawsuit, and I really think – I don’t wanna oversell this – I think this is the beginning of the end. I think this is peak Yodel Mountain -

THOMAS Wow!

ANDREW I really think it’s that significant.

THOMAS I wanna emphasize, though, for anyone who is not familiar with the show or with Andrew, you’ve never said anything like that.

ANDREW Correct.

THOMAS You’ve never said – like, ‘cuz you can find all of the Twitter-heads and the every – you know, you can find the people who’ve basically been making their living lately by doing stuff like, you know, this is the end! Ope, the Russian-whatever, he’s Putin-whatever. No. Andrew is not one of those people, just emphasizing for those who aren’t familiar with you, if you’re coming on this – if this is your first listen, this is the first time Andrew has ever said anything like that.

ANDREW Yeah, that’s right! And I’m glad you gave that disclaimer around it because I really think – I mean, part of what we do as lawyers is try and connect up the dots, try and dig into, you know, what does this particular document mean? What’s the connection, and I really think [chuckles] I think Stormy Daniels is a legal genius! [chuckles]

THOMAS [laughs] Wow!

ANDREW I think this is amazing! And I can’t wait for us to break it down.

THOMAS Oh my gosh! Well, that is big news! This is something that I think we need to just get right into, what do you say?

ANDREW Yeah, let’s do it!

THOMAS No dilly dallying, let’s go!

[SEGMENT INTRO] MUSIC

THOMAS Alright, Stormy Daniels!

ANDREW Yeah, so here’s the way every mainstream media outlet has been reporting the story. They have been reporting it as, Stormy Daniels has filed a lawsuit to ascertain the validity of her non-disclosure agreement, and the question is, did Donald Trump sign it or not?

THOMAS Yeah.

ANDREW And if he didn’t sign it that means it’s not valid. I am here to tell you, number one, this isn’t about an NDA, and number two, it isn’t about whether Donald Trump signed it or not. [chuckles]

THOMAS Wow! I’ve seen that headline everywhere!

ANDREW Yup, yup! No, that’s exactly right, because that’s how the lawsuit is framed, but here is what the lawsuit does. So, first, before we delve into it, I think it’s important to kind of set the stage of what the political fallout from the Stormy Daniels story has been to date, and that is, Donald Trump has expressly denied a sexual relationship between himself and Stormy Daniels, he has denied knowledge of any payment to Stormy Daniels for her silence, and Trump’s lawyer, Michael Cohen, has crafted a really, really carefully worded statement in which he said, quote, “I used my own personal funds to facilitate a transfer to Stormy.” Right?

THOMAS Yeah.

ANDREW We could parse for weeks about what “facilitate a transfer” means, that doesn’t mean that he wasn’t reimbursed. And then he said, “look, just because these allegations aren’t true doesn’t mean that it can’t cause you harm, I will always protect Mr. Trump.” So, without kind of expressly saying it, the story out of Camp Trump is, “oh yeah, this definitely didn’t happen, and the reason that we would pay -

THOMAS To make sure it didn’t happen we paid Stormy Daniels $130,000 [laughs]

ANDREW For her silence! Yeah, that’s exactly right. And so that has given Paul Ryan, that has given the Republican Party, plausible deniability. And you hear this, and you see it, even kind of across the spectrum, oh yeah, we’re gonna take the word of a porn star?

THOMAS Mm-hmm.

ANDREW Whatever. What this lawsuit is going to do is, number one, it’s going to force Donald Trump to make a choice – I’m gonna explain that in a minute. But even without that choice, it takes away that level of plausible deniability. And the second thing that it does is, if this is in fact an agreement authored on behalf of Donald Trump and with Donald Trump’s active knowledge and involvement, it is independent evidence of multiple different crimes.

THOMAS Wow.

ANDREW Okay, so, now, why did I say this is not about an NDA? Because – and this is kind of a mini Andrew Was Wrong – when the story first broke, I assumed that what Stormy Daniels would be thinking that she would be bound by is the stock form non-disclosure agreement that we saw come out -

THOMAS Yeah, I remember.

ANDREW Yeah, exactly, in connection with other Trump aides who were required to sign non-disclosure agreements as a part of the services they have rendered to the campaign. And I opined at the time, hey, thinking that that’s what we’re talking about -

THOMAS Yeah, you thought she would talk to a lawyer and find out she could actually talk about it because it was so news-worthy that – or something, right?

ANDREW Yeah, exactly right. That that NDA would be void as against public policy. That’s not what we have. And so the lawsuit is a declaratory judgment lawsuit, that’s the only thing it seeks. It says, “I am asking the Court to tell me, Stormy Daniels, that no agreement was ever formed between the parties or, in the alternative, to the extent an agreement was formed, it is void, invalid, or otherwise unenforceable.” And then the agreement that is the subject of the lawsuit. This is a settlement agreement. It is entitled, “Confidential Settlement Agreement and Mutual Release, Assignment of Copyright, and Non Disparagement Agreement.” So, number one -

THOMAS Hmm.

ANDREW - the first step is, what does it mean to have a confidential settlement agreement? Okay, what that means is that when you have tort claims or breach of contract claims between parties, those parties can get together and say, “okay, we’re going to release our claims with respect to each other,” or “you’re going to release your claims against me.” And it is very, very common for – in a tort situation – for that kind of settlement agreement to specify, “hey look, I’m giving up my right to sue you, you’re giving up your right to sue me, we’re gonna transfer money between the parties, and you have to keep the terms of this agreement confidential unless required to do so by a court of law.” That’s all perfectly normal stuff, but remember the first part of that. In order to compromise claims between individuals, there must be – you must allege, as one of the parties to the document, that you are giving up something of value. So here are the allegations – and I want to point out, this document, if the lawsuit is to be believed – and I think there’s every reason to think that it is the case because there’s no benefit to be gained from Stormy Daniels from alleging that Trump’s lawyer, Michael Cohen, authored this document. This was authored by Michael Cohen, by Trump’s lawyer. It says, “prior to entering” – and this is recitals, section 2.0, and then paragraph 2.1 says, “prior to entering into this agreement, PP” – that is “Peggy Peterson,” the pseudonym for Stormy Daniels -

THOMAS Aah.

ANDREW - which is in turn the pseudonym for her real name.

THOMAS Well, hold on, stop there. Peggy Peterson, not that bad of a porn name, either!

ANDREW Yeah! [chuckles] That’s true!

THOMAS Just – wow, I imagine she’s an embarrassment of riches in possible porn names, but okay, Peggy Peterson.

ANDREW So, “Stormy Daniels came into possession of certain confidential information pertaining to DD,” which is a pseudonym for David -

THOMAS Donald, uh -

ANDREW Dennison -

THOMAS Oh.

ANDREW Yeah, which Stormy Daniels alleges is Donald Trump – and I’m gonna get to that in a minute, okay? “She came into possession of certain confidential information pertaining to DD, as more fully defined below, only some of which is in tangible form, which includes but is not limited to, information, certain still images and/or text messages, which were authored by, or relate to DD, collectively, ‘The Property’.” So the very first thing is, this agreement includes, as part of the harm that Trump claims – if Trump is, in fact, DD – is that Stormy Daniels has text messages authored by him and still images, presumably of the two of them together. I’m gonna spin that one out a little bit in a minute. “DD, then” – this is paragraph 2.2 – “claims that he has been damaged by PP’s alleged actions against him, including but not limited to the alleged threatened selling, transferring, licensing, publicly disseminating, and/or exploiting the images and/or property or other confidential information relating to DD, all without the knowledge, consent or authorization of DD.” So, if there are no such documents, if no relationship took place -

THOMAS Ooh.

ANDREW - then there would be no property. There would be nothing that Stormy Daniels could possibly have that could possibly damage Donald Trump in any way. DD, we should say. Now, how do we know – this is – and this is the gravamen of the lawsuit, which we’re then going to spell out – all of that agreement is attached as “Exhibit 1” to the lawsuit, and then attached as “Exhibit 2” -

THOMAS So, just to make sure I’m keeping track -

ANDREW Sure.

THOMAS - of everything.

ANDREW Right.

THOMAS ‘Cuz it sounded like, at first you said, “okay, this has a settlement, not an NDA, it’s got a settlement,” and I was thinking, “okay, Stormy Daniels, Peggy Peterson, would have sued Donald Trump for something,” but it’s actually the opposite? It sounds like – or we should say, DD, Daniel Dennit – that’s actually who -

ANDREW [chuckles]

THOMAS No, was it Donald David …

ANDREW David Dennison.

THOMAS David Dennison. So the settlement part, is that a settlement in response to some lawsuit that happened that alleged she was going to damage him by releasing photos?

ANDREW That is exactly right. Now there is no – as far as I can tell – no lawsuit was ever filed. You can compromise unfiled claims.

THOMAS Oh, okay.

ANDREW But in paragraph 2.5, here’s what it says, “the parties agree that the claims released include, but are not limited to, DD’s claims against PP,” against Stormy Daniels, “as relates to Stormy Daniels having allowed, whether intentionally, unintentionally, or negligently, anyone else,” other than individuals who are identified in there, which we’re gonna talk about in a minute, “to become aware of the existence of and of content of the property, to have gained possession of the property, and to Stormy Daniels allegedly having engaged in efforts to disclose, disseminate, and/or commercially exploit the images and/or property, and/or confidential information, and any harm suffered by DD therefrom.” So, again, if all you have is the story, right? That’s what Michael Cohen has implied but not explicitly stated so far, and that’s what people like Paul Ryan have said in terms of making an excuse for why it’s a big deal. If all you have is the story, you do not have tangible property that is required to be turned over. It is very clear from this that there is tangi – that DD’s lawyer said, “you have tangible property which is required to be turned over, the existence of which would cause me economic harm if it were to be disclosed.” That’s a pretty shocking admission to make in a document, you can understand why the document specifies the matter, the existence of this settlement agreement, and its terms, are strictly confidential. [chuckles]

THOMAS Hmm.

ANDREW So, what has Stormy Daniels said in court? She’s attached this document as “Exhibit 1” and said, “hey, Court, tell us whether this document is valid or not, is binding? And, by the way, I have also attached ‘Exhibit 2’, which is a side letter that identifies who PP and DD are.”

THOMAS Hmm.

ANDREW And so, the side letter says, “this side letter is entered into by and behalf of the parties on October 28, 2016,” – oh did I mention that? By the way, this is 11 days before the election?

THOMAS Oh, wow!

ANDREW Yeah! October 28, 2016. So, “the side letter, entered into the same day, in which, Stephanie Gregory Clifford,” that’s her real name, “AKA Stormy Daniels, is referred to by the pseudonym ‘Peggy Peterson’ and” – and then there is a black bar, because this has been redacted pending judicial determination, “and [black bar] is referred to by the pseudonym ‘David Dennison’.” Now, this is the genius of this lawsuit. It is not ab – and I should say, the claims are correct, we’re gonna attach this, there’s a signature line for DD, there is no signature by DD. The real genius is not, is this invalid if whoever DD is didn’t sign it? Because, as we’ve talked about on this show at great length, you can have a binding contract in a great many situations that doesn’t require the party to have signed it.

THOMAS Right.

ANDREW It’s about requiring Donald Trump to make a choice.

THOMAS Yeah.

ANDREW He can do one of two things, he can say, “yes, I am DD, and I didn’t sign this, and I am entitled to the benefits of this confidentiality agreement,” at which point, everything that I’ve just described has now been admitted by Donald Trump in a document that has been attached to a lawsuit and reviewed by a court of law. If Donald Trump says, “I am DD,” now Donald Trump’s lawyer has put in a document, signed by Donald Trump’s lawyer, that Stormy Daniels has text messages authored by Donald Trump. On the other hand -

THOMAS Is that the extent of it? Like, the extent of that “choice A” here, is that we would know she had texts and photos? Is there anything else that comes about as a consequence of that?

ANDREW [chuckles] Yes. Because all of that is then defined as “The Property” and in the agreement it says, “each as more fully defined below, but all of which are included, and attached hereto as ‘Exhibit 1’ to the side letter agreement.”

THOMAS Hmm.

ANDREW And I should be clear on this, “Exhibit 1” was not attached to this lawsuit. But they have – we know Stormy Daniels’ lawyers have “Exhibit 1,” right? They deliberately didn’t attach it, probably because there’s no way to redact what those images are that would not -

THOMAS But then let’s say he admits to being DD, designated driver -

ANDREW Yes.

THOMAS Then doesn’t the settlement still protect those things from being released?

ANDREW So, we will talk about that.

THOMAS Okay.

ANDREW But, I will point out, if he admits to being DD, admitting that those documents exist -

THOMAS Mm-hmm.

ANDREW - is incompatible with the story that has been released by the Trump administration to date. It is -

THOMAS So what you’re saying is we will have caught Donald Trump in a lie?! Oh my god you’re right it is the end!

ANDREW [laughs] On the other hand, he can deny that his lawyer wrote this document, or deny that his lawyer wrote this document with his knowledge, and deny that he is David Dennison, and at that point, there is nothing that can stop -

THOMAS Nothing stopping her from releasing it, right?

ANDREW - Stormy Daniels from lifting up that -

THOMAS Yeah.

ANDREW - seal, and releasing the page.

THOMAS If there is no DD -

ANDREW Yeah, who cares?

THOMAS There’s nobody, yeah!

ANDREW Yeah! That is exactly right. So, now the question is, is there anything else – so I’ve said, the first implication is even if Donald Trump admits to be – which there’s no way he’s going to do, right? There is no way he is going to say, “yes, I had my lawyer draft up this document and pay hush money to Stormy Daniels.”

THOMAS Well, why no – I mean, we already know that the lawyer paid the money, right?

ANDREW Mm-hmm.

THOMAS That’s not even up for debate, really, is it?

ANDREW Yeah, I don’t think so. His lawyer has said on the record, the quotation that I quoted to you, right?

THOMAS Yeah, so then why would we -

ANDREW I used my own funds to facilitate a transfer.

THOMAS - I feel like the – although I see what you’re definitely building at, I think the choice will be, he probably has to admit he’s DD, or something, ‘cuz that’s more compatible with what people already know, right?

ANDREW So, if he chooses that, here are the consequences of making that choice. Whoever – if DD is Donald Trump -

THOMAS Mm-hmm.

ANDREW - then asking your lawyer to draft this document is a crime in several ways. [chuckles]

THOMAS Oooh!

ANDREW Okay? So, here are the various ways in which this document is a crime.

THOMAS Wow.

ANDREW Number one, this document would be prima facie evidence of a failure on behalf of whoever made the payment, be it Michael Cohen or someone else, failing to disclose a campaign contribution. We know 52 U.S.C. § 30101(8) defines contribution as including “anything of value made by any person for the purpose of influencing any election for federal office.” Keeping a porn star silent about your affair with them, a week and a half before the presidential election is very obviously a thing of value! And, it’s not gonna be hard to determine the value of that -

THOMAS Yeah.

ANDREW - because she was paid $130,00 dollars!

THOMAS Hmm, $130,000 dollars, roughly?

ANDREW Yeah! This is a violation of – and, if in California, it’s a violation of state election law, § 20440, which requires that -

THOMAS Oh yeah, so is that the jurisdiction for all this, or? …

ANDREW Yeah, this lawsuit was brought in state court in California, yet another part of the genius, the legal genius of Stormy Daniels – and I’m not being facetious with respect to that, right?

THOMAS Yup.

ANDREW This is a state court proceeding that is going to be beyond the ambit of the President to pardon individuals who were involved with this.

THOMAS Mm-hmm.

ANDREW There are potential state law violations, starting with the California Election Law that requires a campaign to disclose, within 24 hours, any contribution made of more than $1000 dollars from any single source. This was not disclosed. Okay, alright, failure to disclose that. What else do we have? We have the very clear use – because the payment was run through, among other things, an LLC, that is referred to as “EC” in the agreement, but then also, rather incompetently, the agreement – you can see this on page 15 – is signed by Michael D. Cohen, esq., attorney for Essential Consultants, LLC. So, the side letter is blacked out, again, Stormy Daniels’ lawyer, again, did a nice job, did not disclose that the blacked out Essential Consultants, LLC, refers to EC, LLC, but Michael Cohen himself disclosed that -

THOMAS [chuckles]

ANDREW - in the agreement, so we know it’s Essential Consultants. I have looked up Essential Consultants, it is a Limited Liability Company formed -

THOMAS Is it like a Pulp Fiction-like thing, where the guy -

ANDREW [chuckles]

THOMAS - the fixer at the end? Is it that kind of thing?

ANDREW Oh, yeah! Michael Cohen is very clearly The Wolf.

THOMAS Yeah, yeah. [chuckles]

ANDREW It is clear he is Trump’s fixer. The allegation in the lawsuit is that Cohen is Trump’s fixer. Delaware has the most minimal requirements for what you have to say when you form an LLC in Delaware, so all this shows, when you bring this up – anybody can do this search, by the way, just type in Google “Delaware corporate name search” the file number is 6185135, or you can search for “Essential Consultants, LLC”, it will show you that this LLC was formed under the laws of the State of Delaware, on October 17, 2016, so eleven days before this agreement was executed by Stormy Daniels, and you have to give a registered agent, but the registered agent that is listed is a registered agency firm called National Registered Agents, Inc. that is based in Delaware. It is incredibly easy and I encourage members of the media out there, I’m gonna file this myself, to send a request to National Registered Agents, Inc., and ask who hired them, right?

THOMAS Interesting.

ANDREW In a lawsuit – it’s not subject to a Freedom of Information Act request, and they can tell me to go pound sand, they can say, “yeah, no, we keep our client’s identities confidential,” and they probably will, it’s not subject to a Freedom of Information Act request because this is not -

THOMAS It’s not the government.

ANDREW - the government, right. But Stormy Daniels lawyer can absolutely serve a third party subpoena on National Registered Agents, Inc. and require them to produce the records that shows that Michael Cohen created Essential Consultants, LLC.

THOMAS That’s -

ANDREW That’s the allegation in their complaint, that Michael Cohen created Essential Consultants -

THOMAS But I thought you already said he signed as the -

ANDREW Yeah, and he signed on their behalf, but I sign documents, right? He could -

THOMAS Oh, okay, so his excuse could be that he just signed on behalf -

ANDREW Yeah, I’m the lawyer for Essential Consultants -

THOMAS Ah.

ANDREW - LLC, but it’s not a thing I created for me personally. And again, look, in any normal situation that’s a perfectly fair thing for a lawyer to say. Like, I create LLC’s for my clients all the time and I sign on their behalf, you know, where appropriate, and I would say, I’m not responsible for the activity. So you want to drill down and figure out, is there any actual connection between Michael Cohen and the -

THOMAS Okay.

ANDREW - substance of Essential Consultants, LLC. So, now, we know that this LLC was formed in Delaware, Delaware’s corporate law, this is § 18-106(a) is that a limited liability company may carry on any lawful business purpose or activity, whether or not for profit, with the exception of this banking thing. Is it a lawful purpose to pay hush money to silence someone with whom you are having an affair? It will not surprise you to learn, that is not a lawful purpose. [chuckles]

THOMAS Uh-huh.

ANDREW It’s not a lawful purpose in several ways, and hilariously, the best way is that adultery remains a crime -

THOMAS Oh, yeah!

ANDREW - it is a Class B Misdemeanor in the State of New York. This is New York Penal Codes, § 255.17, and I want to be very – I’m gonna read the statute, “a person is guilty of adultery when he engages in sexual intercourse with another person at a time while he has a living spouse, or the other person has a living spouse.”

THOMAS Hmm.

ANDREW So that means that the alleged activities, which took place in California, by the way, California has no statute either way, are very clearly adultery under New York law and Donald Trump almost certainly was in New York or have – was residing in – I mean, he was on the campaign trail at the time, so who knows where he was, but he was a citizen of the State of New York at the time that this agreement was entered into. Okay, so it’s an agreement to pay hush money to cover up a crime. What else is it? This could very easily, in my view, continue to multiply. Many states have, as part of their criminal code that anyone who has knowledge of the actual commission of a crime and takes money or the property of another or anything of value in, upon any agreement or understanding to compound or conceal such a crime, is in of itself a violation. So that crime would belong to Stormy Daniels, but forming an LLC to facilitate the payment to somebody who is committing a crime is not a legal purpose. So now you have yet another way in which the LLC was not formed for a legitimate legal purpose. And, this is where, I think – and we know that Robert Mueller listens to the show because he times -

THOMAS [laughs]

ANDREW - all of his releases to coincide with when the show goes to air.

THOMAS Well, at the very least this will get – if not him, it’ll get picked up by, you know, “Last Week Tonight.” One or the other.

ANDREW Yeah, right? [laughs] Yeah, definitely. Donald Trump lied about – again, if this is correct, Donald Trump lied about not having a relationship with Stormy Daniels -

THOMAS Mm-hmm.

ANDREW On January 31, 2018, while the Mueller investigation was proceeding, so that invokes all of the issues that we have talked about in prior episodes. 18 U.S.C. § 1503, interfere – obstruction of justice, to interfere with a present ongoing investigation. If any part of the investigation covers any efforts or any knowledge on behalf of the Russians or other related to Donald Trump’s sexual activities and the presidential election. And here, I wanna go back to the Steele Dossier. Cohen, by the way, is all over the Steele Dossier. But the Steele Dossier contains allegations about – and yes, the most salacious is the -

THOMAS Mm-hmm.

ANDREW - you know, Trump in St. Petersburg, you know, hiring prostitutes, golden showers, we all know that story. Page 27 of the Steele Dossier says this: “the local business political elite figure reported that Trump had paid bribes there” – in St. Petersburg – “to further his interest, but very discretely and only through affiliated companies, making it very hard to prove. The local services industry” - [chuckles] that’s an interesting euphemism!

THOMAS [chuckles]

ANDREW “reported that Trump had participated in sex parties in the city, too, but that all direct witness to this recently had been, quote, ‘silenced,’ i.e. bribed or coerced to disappear.” So, we do not know what Mueller has with respect to allegations about sexual blackmail of Donald Trump. We don’t know if that contains the Russians knowing about the Stormy Daniels affair. If it does, and these statements were made, then these statements very clearly are obstruction of the Mueller probe.

THOMAS Hmm.

ANDREW To say, “no, I did not”, to deny the sexual relationship between Donald Trump and Stormy Daniels at a time in which you know you are being investigated for, among other things, your potential vulnerability to blackmail to the Russians in connection with your sexual activities is absolutely obstruction of justice.

THOMAS Even though he wasn’t – it’s not like he was being interviewed by Mueller or something. When did it – where – what was the setting for this claim? Does that not matter?

ANDREW It was made publicly, it was made in press conferences and the like.

THOMAS Right.

ANDREW It is not required that you be engaged in actual testifying. So, for example -

THOMAS Okay.

ANDREW - 18 U.S.C. § 1001 says, “whoever, in any manner within the jurisdiction of the legislative or judicial branch of the United States, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device, a material fact, makes any materially false, fictitious, or fraudulent statement or representation, or makes any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, shall be guilty of crime.” So, absolutely it does not have to be in an official interview if you are trying to conceal a material fact from a matter within the lawful jurisdiction of the government of the United States, that’s a crime. So, what else do we know? [chuckles] I think this is all pretty good! There’s some really really interesting things that are contained within this settlement agreement, okay? One of the most interesting things is section 4.2, I flagged this earlier, this is Stormy Daniels representations and warrantees regarding prior disclosures of tangible confidential information. So here’s what the paragraphs says, it says, “PP” – Stormy Daniels – “represents and warrants that prior to the entry of this agreement she has directly or indirectly disclosed any tangible and/or intangible confidential information, i.e. any of the Property, to any third party, including, without limitation, disclosure or indirect disclosure of the content of such confidential information in tangible form other than the following persons to whom she has made such prior disclosures.” And then, there are four names that are listed. Those four names are Mike Moshey, Angel Ryan, Gina Rodriguez, and Keith Munnyon.

THOMAS Who the hell are these people?

ANDREW Mike Moshey and Angel Ryan? No idea. I spent all morning Googling, trying to figure out, can’t figure out who they are. Gina Rodriguez is Stormy Daniels’ personal manager.

THOMAS Okay.

ANDREW Keith Munnyon is an adult video photographer. He has photographed many of Stormy Daniels’ personal shoots, including calendars and other photo shoots. It is not confidential – remember, we went through the definition of “confidential information and property,” for purposes of this agreement. The fact that Keith Munnyon has photographs of Stormy Daniels is not surpr – right? Of course he has photographs of Stormy Daniels.

THOMAS Right.

ANDREW The only way that he has confidential information is if he has photographs of Donald Trump -

THOMAS Right.

ANDREW - and/or Stormy Daniels.

THOMAS So you’re saying it’s not as though he’d even be named – it wouldn’t bother if it was just, “he had pictures of Stormy Daniels,” it has to be -

ANDREW Correct.

THOMAS - Stormy Daniels and “DD.”

ANDREW And DD, that is correct. This is yet another reason why – you had asked at the outset, you know, why doesn’t he just bite the bullet and say that he’s DD? This would be a really bad reason, right? I can tell you, Keith Munnyon does not have any photographs of me, right? [chuckles] You know? So there is no good reason for an adult film photographer to have pictures of whoever DD is, unless DD and Stormy Daniels had a longstanding sexual relationship, and he is named in the settlement agreement. Well, I’m a hundred percent positive – I’m as positive of this as I am of anything, that that means Keith Munnyon also has a deal with DD.

THOMAS Interesting.

ANDREW There’s no way you would identify, “oh yeah, we know these people have information,” but, you know, “it’s really, really critical for us to lock down Stormy Daniels, but you know what? Yeah, we don’t care if Keith goes and discloses the photos.”

THOMAS Yeah.

ANDREW Of course they have locked down Keith, of course they have locked down Gina Rodriguez. And this is an area where I have tried, I have put it out on our Twitter, I am trying to find Keith Munnyon. Media personnel need to be figuring out and talking to -

THOMAS I think there’s only one option.

ANDREW Yeah?

THOMAS I need to schedule myself a porn shoot!

ANDREW [laughs]

THOMAS It’ll be like a movie, where you have to go under cover. “Uh, hi! I’m looking for” – I’ll put up fliers or something with little numbers on the bottom just ‘cuz I need – well how else are we gonna track him down, Andrew?

ANDREW As always, the legal related movie plots that we put together are so much better than any actual movies! No, but seriously, let’s find this guy, let’s ask him the question, let’s ask him -

THOMAS Doesn’t he have an online portfolio or something? He’s gotta have something. How does he get his work?

ANDREW Maybe he works on personal referrals -

THOMAS Hey, attention pornographer -

ANDREW - I don’t know.

THOMAS - listeners!

ANDREW [chuckles]

THOMAS Track this guy down for us, would you?

ANDREW Yeah, yeah! Seriously. It is amazing the property is further identified as including Text Messages, which is a defined term, so it’s used in capital letters. That strongly suggests, again, beyond all confidence interval, that Stormy Daniels had texts – sexually explicit texts from DD. There’s no other way to read this. And now, the very last bit of this, which is, is the agreement enforceable? Very strangely, in a way that I don’t understand, the remedies section of this agreement is Section 5.0, paragraph 5.1 says “DD’s Remedies for Breach of Agreement.” I’m not gonna go through and read it individually, it contains the standard Donald Trump liquidated damages, $1 million dollars, as liquidated damages, which means you instantly get to collect the million dollars because it’s very difficult to define exactly how you’re going to be harmed. We’ve seen this with his non-disclosure agreements, it’s a standard term. But the only person who is authorized under this agreement to seek remedies at law -

THOMAS Oh, is DD!

ANDREW Is DD! EC, LLC, which has signed the agreement, does not have any remedies.

THOMAS Oh, interesting! Okay, then why doesn’t she just release all this stuff? Is she really worried about, I guess, tying up every loose end to how she could be liable for a million dollars?

ANDREW Yes, that’s correct.

THOMAS Hmm, okay.

ANDREW Because what Stormy Daniels wants to do – and I’m assuming she is a patriotic American and she wants to bring down the charlatan in the White House, but what she really wants to do is sell whatever pictures -

THOMAS Right.

ANDREW - documents, to the highest bidder, and -

THOMAS That’s true.

ANDREW - before she can -

THOMAS Okay.

ANDREW Before she can complete that sale, she is going to have to be able to -

THOMAS Right, people aren’t going to buy it -

ANDREW Right.

THOMAS - if they think there’s some legal problem with it, is that right?

ANDREW Correct. And so that’s what this is meant to do. It puts Donald Trump in the position – so we’re back full circle – this is not about, “did he sign the document, is it invalid?” It puts him to the position of having to make the choice. Either he can say, “yes I’m DD and I’m entitled to take the benefit of this agreement,” at which point everything that’s in the agreement about DD is now a part of the public record, or he can say, “I’m not DD,” at which point she can peel off that sticker and she can sell those documents, and I am – I started – again, look, the reason we’re recording this today is because, you know, over the course of the week we get stories and I start looking and I start researching and people flagged, “hey, Stormy Daniels,” and obviously we covered this the first time around and -

THOMAS Yeah, you thought this was just gonna be a little update.

ANDREW Yeah! I was like, this will make a good A Segment.

THOMAS Mm-mm.

ANDREW I can talk about, “do you have to sign a document in order for it to be” -

THOMAS Yeah.

ANDREW - and then I dug into what it says and I was stunned. So here we are. There we are.

THOMAS This is gonna be like another – I know it’s not exactly the same, but kind of an Erin Brokovich situation goin – there’s gonna be a movie -

ANDREW [chuckles]

THOMAS Somebody – I dunno if it’ll be Julia Roberts – somebody else will have to portray Stormy Daniels as the woman – the brainy beauty who brought down Donald Trump. I can’t wait.

ANDREW I can’t wait, but I will tell you, break out that long Ricola-style horn -

THOMAS [chuckles]

ANDREW - ‘cuz I cannot –

THOMAS So there must be -

ANDREW I don’t see how -

THOMAS Yeah, there must – is there a time limit, then? So what are we looking for, then?

ANDREW So there’s two answers to that. First is, with respect to the lawsuit, Donald Trump will have 30-days from service of process – actually, probably 60 days because it’s in California State Court, so he’ll be an out-of-state defendant, he’s got time before he has to file an Answer. It’s why I wanted to go to press with the story, because this is something that every reporter should be asking at every opportunity. “Are you DD? Is this an agreement that you authorized to be drafted on your behalf?” If not, just tell us! Just say, “I publicly disclaim, I say that I’m not DD. That’s all you have to do.” And everybody should be putting him to that question.

THOMAS Now if he publicly says that, does that have bearing on the – like can he privately do a different thing? How does that work?

ANDREW So you can make – number one, you cannot plead inconsistent facts in court, right?

THOMAS Hmm.

ANDREW So if he has – you can plead alternative theories, but you can’t say, “I have said X, but in Court I am going to say Not X.” Number two, if he were to lie that, again, we go back to all of the potential obstruction of justice issues that we just talked about. So you’ve got wide latitude as the President to engage in the performance of your job duties and to talk and to – but, yeah, if he publicly disclaims that it’s him, remember that the whole idea of it being an unsigned contract in the first place is that you have to marshal objective indicia of whether the contract was intended to be binding or not. So, super simple example, you hire me to repaint the siding on your house, I send you over a contract, you never sign it, but you pay me the money and I show up and I paint the outside of your house.

THOMAS Mm-hmm.

ANDREW And then later, it’s important to decide whether we had a contract, I could go forward and say, “yeah, Thomas never signed it because it didn’t matter. Once I sent him the terms, he agreed to it, and the objective indicia” -

THOMAS Is this statute of fraud stuff?

ANDREW Well, the statute of fraud specifies exceptions to that.

THOMAS Okay.

ANDREW That’s exactly right. The statute of fraud says, “if it’s a contract for the sale of real estate,” “if it’s a contract that cannot be performed in one year,” right?

THOMAS Is there a porn star clause to that?

ANDREW No.

THOMAS No? No exception. [chuckles]

ANDREW And this doesn’t fall under the one year rule, either, because if Donald Trump had died, saying, “we’re gonna do this in perpetuity,” in perpetuity can be less than a year, with somebody of Donald Trump’s age it – you know, it would be difficult to maintain that argument. So there is no requirement that this be in writing, but again, that’s why it’s so important that media ask Donald Trump, “are you DD?” and he says “no,” then it would make it virtually impossible for him to try and obtain the benefit of this contract in court, and so, yeah, then she’ll go ahead and -

THOMAS So, as soon as -

ANDREW - pull of the sticker.

THOMAS Yeah, this time limit elapses – if he doesn’t say he’s DD then she just sells everything she has, right?

ANDREW That’s exactly right.

THOMAS Wow.

ANDREW And, again, he’s going to – look, the only strategy you have as a lawyer, assuming that Donald Trump is DD, is to find some grounds to move to dismiss. That’s what they will do. They will not answer the lawsuit, because that will require them to take a position, and even Michael Cohen, not smart enough to keep his confidential party confidential on his signature line, smart enough to know that he’s been put to a Hobson’s choice here, he’s going to move to dismiss the lawsuit at the last possible date, he’s probably gonna ask for extensions. That’s the only strategy you have as a lawyer at this point, is to try and ride out as long as possible, and that’s why it’s crucial that the media not let this go, and not be like, “we’re just overwhelmed, there’s X and Y and Z and we can’t keep track of Kushner and Stormy Daniels and this and that.” This is crucial to understanding whether there is provable falsehood coming out of the White House and they should continue to hold Donald Trump’s feet to the fire. And I wanna say this, there is zero doubt in my mind, if this were any other president in history, that this would be the beginning of impeachment proceedings.

THOMAS Yup.

ANDREW The filing of this lawsuit would be concomitant with the filing of impeachment proceedings. If Bill Clinton – if there was evidence – and there wasn’t – and, like, why did we hear Monica Lewinsky’s story during Bill Clinton? Because Bill Clinton did not try and pay off Monica Lewinsky. If Bill Clinton had tried to pay off Monica Lewinsky either before or after, there is no doubt in my mind that he would have been convicted upon impeachment. Enough democrats in the Senate would have said, “yeah,” because, essentially the position that democrats took was “lying about private sexual matters is not an impeachable offense.”

THOMAS Mm-hmm.

ANDREW And we’ve talked about how high crimes and misdemeanors are whatever the House of Representatives says they are and whatever the Senate decides to vote to impeach, to vote to convict. That’s the position that democrats took, there is no way they would have taken the position that says, “lying about sexual matters and then forming an illegal corporation to pay off bribes to silence the witness in connection with that is not an impeachable offense.” They wouldn’t have done it. And that’s why Bill Clinton didn’t do it. I’m sure that the members of the republican house who were still there who voted to impeach Bill Clinton back in 1998 are gonna have no problems squaring their hypocrisy on now, the same thing. They’re gonna say, “well, you know, we established under Bill Clinton that lying about private sexual matters is” -

THOMAS Yeah, yeah.

ANDREW - “not an impeachable offense.” That’s why I’m bringing this up 50 minutes into this recording. [chuckles] This is not about Donald Trump lying about having an affair with Stormy Daniels in 2007.

[music starts in background]

ANDREW This is about Donald Trump, one and a half weeks before the election forming – having his lawyer form an illegal LLC to pay hush money to a witness with a knowledge of multiple crimes -

THOMAS Wow.

ANDREW - and that’s impeachable, that’s the top of Yodel Mountain as far as I’m concerned. [music swells, bell tolls]

THOMAS I’m just in awe of whatever Brian just came up with sound-wise -

ANDREW [chuckles]

THOMAS - when you said that, to really underscore, maybe a giant horn? I don’t know what it was, but I’m sure it was good. But wow, okay. So that’s assuming we live in the real world, but we live in a post-fact, post-truth world where nothing matters, so in light of that, what’s actually gonna happen? He’ll delay forever, right? Or, how long do you think he can del – his lawyer can delay? Can his lawyer somehow get this dismissed? Is there – I mean, you mentioned that that’s what he’s gonna try to do, is there any reasonable grounds that he could do that on?

ANDREW No, because – yeah, he’s gonna file something, but in order to have a valid reason to bring a declaratory judgment – and this is, again, the legal brilliance of Stormy Daniels, no facetiousness intended – this is a one count Complaint. All it says, I’m gonna read the Relief Sought in its entirety -

THOMAS Oh, yeah, it didn’t try to do anything else ‘cuz he didn’t want to distract or open up other possible grounds for being dismissed or anything?

ANDREW Exactly right!

THOMAS Yeah.

ANDREW “On the First Cause of Action, Plaintiff Prays for a judgment declaring that no agreement was formed between the parties, or, in the alternative, to the extent an agreement was formed, it is void, invalid, or otherwise unenforceable.” The standard for being able to maintain a declaratory judgment action is that there must be a live case or controversy, there must be an actual controversy, relating to the legal rights and duties of the respective parties. And in that case, California Code of Civil Procedure, § 1060 authorizes a person to seek a judicial declaration of his or her rights and duties relative to an instrument or contract or alleged contract. The only way around that, the only way to say there’s no actual controversy, is to say, “we don’t disagree that the contract doesn’t apply.” That’s the only way. Because Stormy Daniels has said, “I’m concerned that the contract does, but I don’t think it should.” And unless Donald Trump takes the position of, “no, yeah you’re right, it doesn’t apply,” then there’s a live case or controversy. There’s no way around that. And we’ve talked about that before, if there’s a live case or controversy, you cannot proceed on a motion to dismiss. You could say, “oh, the facts aren’t gonna bear this out,” but that won’t matter. You can’t. You will have to answer this Complaint, and Donald Trump will have to take a position as to whether he is DD or not.

THOMAS Alright, but what I’m trying to get – Okay, so –

[space noise]

THOMAS Thomas from the future, I just came back. Hi, I’m Thomas from the year 2020. [space whoosh] Hey Andrew, Donald Trump is still President. So can you tell me how that happened? I would just – put on your “Donald Trump is Still President in 2020” maybe we’ll go before re-election, just before re-election, how would that happen here? ‘Cuz that’s what’s gonna happen, so I’m just trying to get at – there’s no end to my cynicism about whether or not stuff like this matters. So, that happened, I’m from the future, how did that happen? Tell me your best guess.

ANDREW Yeah, in the same way that our breakdown of Hillary Clinton’s emails in August of 2016 -

THOMAS Mm-hmm.

ANDREW [chuckles] - failed to penetrate the public consciousness.

THOMAS [laughs]

ANDREW It – yeah, it would mean that this got, that our investigative journalists failed to follow up on a story that says, “the issue here is the commission of a crime and the payment of hush money to a witness who has knowledge of an underlying crime,” and they just got distracted with, “oh, you know, porn star, it’s all about did Donald Trump have sex with a porn star?” That’s the way in which this becomes part of the landscape. And I would add, and it would require Paul Ryan, the republicans in Congress, to say and shape the narrative as, “this is only about whether Donald Trump had an affair in 2007.” Right?

THOMAS Right.

ANDREW And for people not to beat the drum of “it’s not about the affair, it’s not even about the cover up.”

THOMAS But I thought -

ANDREW It’s about the -

THOMAS What would have happened court-wise then? Like, you know, that assumes that nothing else happens there, does it?

ANDREW No, I’m saying, what that means is – I am assuming we will see – I’m not looking forward to that day – but I’m assuming we will see the text messages and photographs.

THOMAS Oh. [chuckles]

ANDREW I do not see a way -

THOMAS Wow.

ANDREW - in which that fails to come out.

THOMAS That’s checkmate! Lawyer’s checkmate, here!

ANDREW Yeah.

THOMAS Because there’s no option that he has that doesn’t result in that, that information being let out, eventually.

ANDREW I don’t see how – the only way around it is for Donald Trump to say that he’s not DD, right? [chuckles] And then the sticker gets removed and then -

THOMAS And then it comes out anyway!

ANDREW Yup, exactly! It – I suspect – I mean, we will test Cohen’s loyalty here, right? This is the problem, and we’ve seen this with Gates, we’ve discussed it as a potential hypothetical with Manafort, when you surround yourself with these guys who are willing to break the law, and they say, “oh, yeah, I’ll always protect you, I’m willing to die for you, Donnie! I’m gonna go to the mat!” As that starts to unravel, you have the question of, okay, well, is this person serious about that? Are they really gonna go to the mat? Here’s how you could do that, okay? Here’s how Michael Cohen go to the mat, he could say -

THOMAS Oh, he could just say he did the whole thing?

ANDREW “I did the whole thing.”

THOMAS Right.

ANDREW If he does that, that will be – A, it means Michael Cohen will be disbarred, he might not care.

THOMAS Wow.

ANDREW B, it means that he will be guilty of various state and federal crimes, only some of which he can be pardoned for, and C – obviously, that would be an enormous story -

THOMAS Yeah, but even if he doesn’t fall on the sword, I don’t see how he gets out of this – is it a defense as a lawyer to say, “oh well I did all these illegal things but my client told me to, so” -

ANDREW [chuckles] I am not – yes, that is not a defense. [chuckles]

THOMAS [laughs] So, regardless it sounds like he’s -

ANDREW Yeah.

THOMAS - in trouble.

ANDREW Yeah, no, Cohen is obviously in trouble, and again, you know, you read the allegations in the Complaint and you read the stories that are out there in the response to the Steele Dossier, it seems pretty clear that, as we started on this segment, that he fancies himself Winston Wolf, right? Michael Cohen is Trump’s fixer. That’s an allegation lifted directly from Stormy Daniels’ Complaint. That seems to be the image that he’s cultivated and, you know, when you live on the edge like that then you find yourself in ethically questionable and where we are here, which is far past the line of ethically questionable. This is cooperating with blatantly illegal conduct. The fun part would be if Cohen goes that route, and I haven’t researched any of this because this is a tangent on a question that you just asked and we didn’t discuss this in advance.

THOMAS Mm-hmm.

ANDREW You don’t have attorney-client privilege if your lawyer is not acting in rendering legal advice. So, who knows what that could open up in terms of being able to produce documents from the 2007, 2008 time frame, at a time when Donald Trump is not President, has no plausible claims of executive privilege, and Cohen has now been adjudicated not to be acting as a lawyer, to have been acting as a co-conspirator. Would he be able to go to a prosecutor and cut a deal that says, “hey look, if you’d like to see an awful lot of privileged emails that you otherwise will never get a chance to see,” here’s how to do it. That’s a potential – I don’t know, I’m not gonna predict what Michael Cohen -

THOMAS Yeah, too many moves down the road.

ANDREW But what I’m saying is, it’s why I said I think this is – history will look back and point to this as the start, you know, the beginning of the end.

THOMAS In the future we’ll have “Stormy Daniels Day”!

ANDREW Yeah!

THOMAS The holiday.

ANDREW I am in favor of us building a giant statue to Stormy Daniels.

THOMAS A national porn holiday!

ANDREW There you go!

THOMAS We need one, anyway.

ANDREW I agree. But -

THOMAS Wow.

ANDREW But, there you go! And I am really glad you did the intro on this. Our longstanding listeners know, they know we do a recurring segment called “Andrew Was Wrong,” in which I hold myself accountable for stuff I do get wrong, and that I try very, very hard to be measured and neutral and restrained in tone and statement, and I really – well, you heard what I think.

THOMAS So we need to get the main stream – the lame stream media needs to get onto this.

ANDREW Yeah, I -

THOMAS And start asking these questions.

ANDREW I – that’s what I think. That’s how I think, you know, if you ask me how does this not go anywhere -

THOMAS Maryl Streep and The Post -

ANDREW Yup.

THOMAS - and Tom Hanks need to get on this, that’s what you’re saying?

ANDREW That’s what I’m saying.

THOMAS Need to actually make there be consequences for things.

ANDREW I agree, that’s what I’m saying.

THOMAS Okay, well, you did your work for them. How many hours are you billing them for? Because -

ANDREW [sighs] Yeah! [chuckles] Sadly -

THOMAS Gosh!

ANDREW - that agreement’s not enforceable ‘cuz nobody signed it!

THOMAS [laughs] It’s free, groundbreaking, legal research, mainstream media! Listen to our show, take advantage of it!

ANDREW There you go! And if – and look, if you think I’m overplaying my hand here, please, write in, Tweet at us, tell me that I am, because I don’t – I am open to that, but I think I’m right.

THOMAS Wow. Wow! That’s pretty groundbreaking! That’s huge. We’ll have to – we may be at Yodel Mountain, we’ll have to see. Boy, are we gonna get hammered when we all get to the top of Yodel Mountain!

ANDREW [chuckles]

THOMAS We’re just gonna have a massive Yodel Mountain Ale party. So, woah, what do you think? I guess we’ll have to close it out and just say, you’ve laid it out, I mean, what else do we need to say?

ANDREW No, I think that’s it.

THOMAS Alright, with that all behind us, [chuckles] man! It is time to thank our top patrons, our hall of famers, they are the ones who are funding the groundbreaking legal research that the mainstream media needs to take advantage of, and the top patrons, the hall of famers who make this happen are:

Hall of Fame Patron Shout-Out

ANDREW Thank you all so much for supporting the show, we literally couldn’t do it without you, and if you would like to join their ranks, head on over – patreon.com/law, become a patron, support what we’re doin’ here today.

THOMAS Absolutely, couldn’t be a better time, lots of bonus stuff, all that. Alright, well now it’s time to head over to TTTTBE, Thomas Takes the Bar Exam, with a special guest!

Thomas Takes the bar exam

RANDALL DUNBAR Oh, no associate of this firm has ever failed the bar exam.
MITCH McDEERE No kidding.

THOMAS And it is time for TTTTBE, and we’ve got a guest for this one, and you know what I just realized? I think it’s accurate to say I’ve never been bested by a guest. Is that right? I think we’ve only been tied.

GUEST Does that mean I automatically have to answer differently than you to try and uh –

THOMAS [laughs]

ANDREW [chuckles]

THOMAS Well, you can!

GUEST [laughs]

THOMAS It’s all up to you, you know! I don’t think I’ve been bested. Most of the time what happens is we’re both wrong! [laughs]

GUEST Yeah.

THOMAS We’ll see how this one goes. Here we go, Andrew, start – see if you can get this question -

ANDREW Alright!

THOMAS - out all in one breath.

ANDREW [exhales] Deep breath here!

THOMAS [chuckles]

ANDREW When the 20-year incumbent in the State senate district representing her city retired, Judith, a city counsel member, filed as a candidate for that seat. She had the support of all the relevant politicos and was considered a sure winner until Kimberly, a local television personality, entered the race. You might see this as a prophetic question here. Kimberly and Judith-

GUEST It sounds like a sitcom.

ANDREW - had been friends, and Judith felt betrayed by Kimberly’s candidacy, believing that Kimberly was using her name-recognition to rob Judith of a position she’d been working towards for 15 years. The campaign was, consequently, a bitter one, Judith doing everything she could to portray Kimberly as an intellectual lightweight, who was more concerned about soundbites than issues, and Kimberly painting Judith as an old-style politico with plenty of favors owed and sleazy connections to unsavory elements of the power structure.

THOMAS This really paints a picture, this one, really.

ANDREW No analogy to the –

GUEST Well, so far it’s every election -

THOMAS Yeah, is this a –

GUEST Every election in the last, what? Ever.

ANDREW But we know this question was written at the dawn of recorded time, so -

THOMAS Yeah, these are old.

ANDREW - it was actually chiseled on a cave wall.

GUEST Exactly right.

ANDREW In an attempt to lower the hostility level, local community leaders organized a charity barbeque one weekend and invited both Judith and Kimberly to be celebrity chefs, the candidates were placed at barbeque grills on a raised dais before the large crowd, where they were each supposed to cook a mess’a ribs, using their own special barbeque sauce.

GUEST [chuckles] This is so ridiculous!

ANDREW While preparing to cook, Judith was using a large chef’s knife to trim the ribs she intended to barbeque. The slab of meat slipped from her grasp and fell to the floor. Judith swung rapidly towards the meat and uttered a sincere, “Damn!” when she saw she could not save it from the filthy floor. Kimberly turned at the same moment, and, seeing Judith crouched, holding a large knife apparently pointed at her, and appearing very angry, Kimberly believed that Judith was trying to kill her.

THOMAS [laughs]

ANDREW Kimberly grabbed her own chef’s knife and plunged it into Judith’s neck! [chuckles]

THOMAS Wow!

GUEST That is … something else.

ANDREW Yeah, at -

THOMAS So this turned out better than the 2016 election!

GUEST [laughs]

ANDREW So Kimberly was then elected and is now a 6-term republican congresswoman from Minnesota. At Kimberly’s trial for the murder of Judith, Kimberly should be found guilty of, A) no crime because Kimberly was justified in killing Judith, whom she reasonably believed was about to kill her; B) no crime because Kimberly was excused in killing Judith, whom she reasonably believed was about to kill her;

THOMAS Huh.

ANDREW C) Voluntary Manslaughter, because Kimberly unreasonably, but in good faith, believed that Judith was about to kill her; or D) Murder, because the bitterness between the candidates demonstrates that Kimberly killed Judith with malice of forethought.

THOMAS Wow. Okay, so I would – I think I can pretty easily eliminate D – murder because the bitterness between the candidates demonstrates that Kimberly killed Judith with malice of forethought. I think that’s a huge stretch. I don’t think the campaign bitterness would mean that no matter if it was an accident or not, you know, the bitterness beforehand means its murder. I think that’s too much of a stretch. And then A and B are so similar that they’re almost word-for-word – they are word for word except for one word which is very interesting. No crime because Kimberly was justified versus no crime because Kimberly was excused in killing. Man! I’m going to – here’s what I’m going to say. As a nonlawyer I have no idea what the difference is there, and – that would be flipping a coin for me in trying to figure out what that means. I mean, I feel like I’ve heard justified more, I feel like I’ve heard that one more than excused, so I would lean toward A, so in terms of Thomas’ Second Chance Bar Exam, I’m gonna eliminate D and B, and then I guess I’m just gonna go with C, voluntary manslaughter, because Kimberly was unreasonably – but in good faith – believed that Judith was about to kill her. That sounds the most rational to me. Now, if there’s some weird technical thingy that results in the answer being A or B, I don’t know. I got nothing there. But I feel like it’s kind of unreasonable to believe that all of a sudden this person, on a stage, was running to kill her with a knife or whatever it was, so that’s why I think – I think voluntary manslaughter is still pretty reasonable there, but – so I’m gonna go with C.

GUEST Well I’m afraid I’m not gonna have the opportunity to beat the great Thomas –

THOMAS [chuckles]

GUEST - because I think I’m also going with C? And one of the reasons I’m going there – and, again, first of all I think if someone just kind of standing next to you with an angry face with a knife under different circumstances –

THOMAS Hmm.

GUEST - then I can see where there would be actual justification, right?

THOMAS Yeah, like if you’re in your house –

GUEST You’re in a cook-off! [chuckles]

THOMAS - and it’s like a dark – yeah, something like that.

GUEST You were in a cook-off, you both have knives, obviously –

THOMAS [chuckles]

GUEST Kimberly had a knife, she used it to kill the other woman, so, you know, is it unreasonable expected that Judith would be holding a knife? Not at all. Of course she should have a knife. The fact that she was on the ground, the fact that she was angry, she just yelled out the word, “damn,” obviously she’s angry – it just, to me seemed like an insane overreaction on the part of, let’s see, Judith to kill Kimberly? Right? Oh, no, other way around. Kimberly to kill Judith?

THOMAS Yup.

GUEST I just can’t believe there’s no crime. At least I hope there’s no crime –

THOMAS [chuckles]

GUEST - but I also agree with you, Thomas, that murder because – like if it had just said “murder,” that would’ve been harder! [chuckles] right? If that’s all that it said?

THOMAS Right.

GUEST But the fact that it says “because of the bitterness between them.” I mean, if anything I guess that could point to motive, but yeah, I think I agree. She was unreasonable in thinking that her life was in danger, but because she believed it, it just – voluntary manslaughter. So I’m going with C as well.

THOMAS Well, alright. I guess we don’t even need to hear the answer for this one because I kept my perfect record against guests!

GUEST [chuckles]

THOMAS No, I’m kidding.

ANDREW [laughs]

GUEST There you go!

THOMAS Find out, maybe we’re both wrong and make sure to play along, everybody!

GUEST We might be, we might be.

THOMAS We’ll have one fewer person playing along since David Michael will – you’re not allowed to win the Twitter contest this time.

GUEST Aw man! Alright.

THOMAS But we’ll have to see. Play along on Twitter, play along on Facebook, you know how, and we’ll see! Tune in on Tuesday to find out, I’m very curious, maybe we’ll both be wrong. Alright, well, that does it Andrew. Thanks so much for – you know- you really are alerting everybody. You’re the – what’s a good reference? I don’t have one.

ANDREW Canary in a coal mine?

THOMAS Yeah! You’re the canary in a coal mine for Stormy – Coal Mine of Stormy Daniels – or Peggy Peterson, AKA – she’s got so many good names! Wow, we need to – guys, spread the word on this! Get this out there! We’re gonna be sharing it all over on social media, you can signal boost, you can make it happen, we can make this thing go viral. This is important! And thank you, of course, to all our Patrons who make this show happen, thank you to our listeners, thank you to David Michael for sitting in on the bar exam, we’ll see how that goes in next week’s show, and we’ll have to see you on – what might be a regularly scheduled show -

ANDREW [laughs] Who knows!

THOMAS - on Tuesday. Although if it’s not, that probably means something good happened, so we’ll see!

Outro

FLETCHER REEDE Stop breaking the law, asshole! (Liar, Liar (1997))
JUDGE DREDD You betrayed The Law!
RICO LAAAAAW!
(Judge Dredd (1995))
LYDIA This has been Opening Arguments with Andew & Thomas. If you loved the show and want to support future episodes please visit our patreon page at patreon.com/law. If you can't support us financially it would be a big help if 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 us. For questions, suggestions and complaints: email us at moc.liamg|stnemugrAnepO#moc.liamg|stnemugrAnepO. The show notes and links are on our website at www.openargs.com. Be sure to like our page on facebook and follow us on twitter @Openargs. Until next time
This podcast is a production of Opening Arguments Media LLC, all rights reserved.
ANDREW Opening Arguments is produced with the help of our editor Brian Ziegenhagen, production assistant Natalie Newell, and out unofficial researcher Magpie. A special thanks to the moderators of the Opening Arguments Facebook Community: Natalie, Alisha Koch, Eric Brewer, and Emily Waters. And also thanks to Thomas Smith who wrote and produced all of the amazing music you hear, which is used with his permission.