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Speaker 1: What up. It's Jesse, Obviously, Jesse Kelly. You know all that.

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Speaker 1: Because I'm so world famous and important, it's a lot

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Speaker 1: to manage. But I get by well because I am

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Speaker 1: a generous person who's of course above everybody. But because

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Speaker 1: I'm a generous person, I want to give you a gift,

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Speaker 1: And here's a gift, an ad free bonus episode of

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Speaker 1: the essential podcast of twenty twenty four, America on Trial

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Speaker 1: with Josh Hammer. It's a new daily podcast covering the

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Speaker 1: twenty twenty four presidential election through the only lens that

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Speaker 1: honestly matters now, the legal proceedings of Donald Trump, Joe Biden,

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Speaker 1: Hunter Biden. Every single morning, Constitutional attorney Josh Hammer gives

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Speaker 1: you updates on all the cases, because how else can

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Speaker 1: you keep them straight? He analyzes the questions, what are

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Speaker 1: the limits of presidential power? Can the president, current or

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Speaker 1: former even get a fair trial or go to prison?

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Speaker 1: Can Joe Biden pardon its son? But I don't know?

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Speaker 1: Josh does. Get the answers and stay informed by listening

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Speaker 1: to America on Trial with Josh Hammer every morning. Enjoy

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Speaker 1: this bonus episode, then go subscribe wherever you get your podcasts.

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Speaker 2: I'm Josh Hammer, and this is America on TRIALI your

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Speaker 2: one stop shop for all of the legal information you

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Speaker 2: need to get through your day and feel informed and

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Speaker 2: prepared for this most monumental and unprecedented of litigation and

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Speaker 2: law fair adult elections, the fourthcoming matchup as it was

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Speaker 2: in twenty twenty between Joe Biden and Donald Trump. It's

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Speaker 2: a heck of a news cycle and a heck of

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Speaker 2: a busy week out there. So let's not waste any time.

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Speaker 2: Let's go straight to Around the Horn looking at our

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Speaker 2: legal calendar there we of course, as we covered on

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Speaker 2: this show already this week, we had the three judge

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Speaker 2: panel issue they're ruling when it comes to presidential immunity

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Speaker 2: or lack thereof, as the case may be for former

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Speaker 2: President Donald Trump. As bertains to Special Counsel Jacksmith's sprawling

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Speaker 2: federal probe there in Washington, DC, this is probably the

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Speaker 2: highest profile of all four of the criminal prosecutions against

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Speaker 2: Donald Trump. This is the federal probe that is alleging

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Speaker 2: wide ranging conspiracy to overthrow democracy and to overturn the

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Speaker 2: election and January sixth, and this and that the false electors.

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Speaker 2: This is the juiciest of the four it's the merrit

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Speaker 2: Girl and appointed special counsel Jack Smith, And we got

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Speaker 2: that ruling from the three judge panel this week. We

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Speaker 2: covered in depth earlier on this show. Go ahead and

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Speaker 2: listen to that episode for all of the legal analysis.

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Speaker 2: So right now, we're still willing to hear what Donald

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Speaker 2: Trump's lawyers, John Sower and Will Sharf in particular, are

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Speaker 2: going to do when it comes to that case. What

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Speaker 2: is their strategy going to be. They have a deadline.

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Speaker 2: There's a deadline coming up of this Monday, February twelfth,

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Speaker 2: that is deadline for the team to ask the US

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Speaker 2: Supreme Court to do something. Based on my reading of

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Speaker 2: the tea leaves and some conversations that I've had and

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Speaker 2: just my general sense of where things stand and where

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Speaker 2: they will go, I predict that they are going to

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Speaker 2: ask the Supreme Court for an emergency stay to stay

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Speaker 2: the holding from the three judge panel that would affect

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Speaker 2: nullify that for the time being while they go ahead

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Speaker 2: and seek en banc review before the full court there

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Speaker 2: in the DC circuit. I think that makes the most

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Speaker 2: sense when it comes to trying to run out the

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Speaker 2: clock proverbially speaking there and also raises the possibility of

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Speaker 2: getting a blistering descent, possibly because it's not going to

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Speaker 2: go their way. The DC circuit is a seven to

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Speaker 2: four Democrat majority court when you look at who nominated

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Speaker 2: the eleven judges there. But it does raise the very

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Speaker 2: intriguing spectacle of possibly getting a blistering descent from one

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Speaker 2: of the two more fiery Trump nominees, their Judge Katsis

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Speaker 2: or Judge Row. That decision from the Trump legal team

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Speaker 2: could come any day. Again, the deadline for what to

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Speaker 2: do when it comes to the Supreme Court there in

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Speaker 2: the Jacksmith federal probe in DC is this Monday, February twelve.

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Speaker 2: We'll find out more there coming up any day. Big

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Speaker 2: news as well on the Fannie Wills case in Georgia.

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Speaker 2: So in this case is just turning into an absolute

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Speaker 2: poop show. I mean, this thing is just a topsy

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Speaker 2: turvy upside down to backle no matter how you look

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Speaker 2: at it, Donald Trump, I cannot emphasize how just how

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Speaker 2: lucky Donald Trump is getting when it comes to Georgia.

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Speaker 2: This was supposed to be the most dangerous of all four.

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Speaker 2: That case is totally totally in the toilet right now.

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Speaker 2: The latest shoe to drop is you had a tweet

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Speaker 2: from Congressman Jason Smith. He is an influential congressman. He's

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Speaker 2: from Missouri, he's there, he's the chairman of the House

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Speaker 2: Ways and Means Committee, but also involved in various other committees.

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Speaker 2: And he had a tweet just yesterday on Wednesday, he

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Speaker 2: tweeted quote, White House visitor logs confirmed that Fulton County

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Speaker 2: DA Fannie Willis and her lead prosecutor that would be

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Speaker 2: Nathan Wade, had multiple, multiple hour long meetings with the

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Speaker 2: President of the United States. So there was a lot

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Speaker 2: of smoke here. You had a lot of allegations from

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Speaker 2: trump co defendant in Georgia, Michael Roman. We were set

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Speaker 2: to learn more at this forthcoming evidentiary hearing before Judge

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Speaker 2: Scott McAfee there in Fulton County next week. But here

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Speaker 2: you have a US congressman who is now saying that

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Speaker 2: he has ironclad proof based on the White House Visitor logs,

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Speaker 2: that she actually was there meeting not just according to

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Speaker 2: Congressman Smith, the Missouri, not just with the White House

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Speaker 2: Counsel's office, but actually with the big guy himself, the

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Speaker 2: doddering adult from Delaware. The Senile Commander in chief Joseph

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Speaker 2: ar Biden. I mean, this is truly damning stuff if true.

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Speaker 2: Jason Smith's tweet cannot be separated from Congressman Jim Jordan's

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Speaker 2: newly announced subpoena of Fannie Wills as well. He announced

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Speaker 2: that on Friday, this thing in Georgia is just totally

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Speaker 2: going upside down. Once again, say what you will about

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Speaker 2: Donald Trump, he really does have the best enemies imaginable.

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Speaker 2: There big big news if we actually have Fannie Wills

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Speaker 2: dead to rights. When it comes to visitor logs, expect

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Speaker 2: this to come up next week's EVIDENTI you're a hearing

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Speaker 2: in Fulton County when it comes to Jack Smith. Finally,

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Speaker 2: when it comes to Around the Horn, before we get

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Speaker 2: to our big news of the day, in our deep

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Speaker 2: dig our final Around the Horn item today, we are

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Speaker 2: still expecting a imminently forthcoming report from Robert Hurr. He

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Speaker 2: is the special counsel who was assigned to review Joe

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Speaker 2: Biden's own classified documents retention scandal. When it comes to

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Speaker 2: the Pen Biden Center, all signs, based on all the leaks,

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Speaker 2: all of the mainstream media outitis are reporting that this

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Speaker 2: is going to be a tisk tisk slap on the

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Speaker 2: risk sort of thing. There are no expected criminal charges

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Speaker 2: to drop there or anything of that nature, but it's

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Speaker 2: going to be interesting to see, at least how much

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Speaker 2: Robert Hurr can amp up the rhetoric at a bare

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Speaker 2: minimum there. What kind of political implications will there be.

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Speaker 2: Recall that Joe Biden was grossly, grossly mishandling his own

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Speaker 2: classified documents. He had them in his garage in Willington, Delaware,

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Speaker 2: in the home, oh by the way, where his prodigal

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Speaker 2: drug adult son Hunter Biden happened to be living in

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Speaker 2: and out. Probably not the kind of thing you want

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Speaker 2: around someone like Hunter Biden. These top secret classified documents.

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Speaker 2: He had them all about his office in this Chinese

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Speaker 2: Communist Party funded apparatus, the Pen Biden Global Center for Diplomacy.

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Speaker 2: So it's extraordinarily sloppy. To put it mildly, it kind

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Speaker 2: of reminds me of the whole Hillary Clinton thirty three

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Speaker 2: thousand deleted emails scandal with Jim Comey back in the

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Speaker 2: twenty sixteen presidential election cycle. Unfortunately, if I'm making a

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Speaker 2: prediction here, I think similar to the way that Hillary

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Speaker 2: Clinton got off in twenty sixteen. That's probably what's going

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Speaker 2: to happen with Joe Biden. But again, we are expecting

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Speaker 2: an imminently forthcoming ruling from Robert Hurd, just as we

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Speaker 2: are expecting an imminently forthcoming verdict from Justice Arthur and Goron,

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Speaker 2: who is the New York State judge overseeing New York

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Speaker 2: A Training General Tis James is sprawling fraud fishing expedition

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Speaker 2: into the Trump organization. That verdict also should be imminently

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Speaker 2: forthcoming within the next week or so. So, with all

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Speaker 2: of that around the horn out of the way, we

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Speaker 2: turned to the news of the day and our deep dive,

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Speaker 2: which is the news of the day, is that it's

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Speaker 2: argument day. This is the day. This is argument day

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Speaker 2: at the United States Supreme Court. This is a huge,

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Speaker 2: huge case. This is the case of Trump versus Anderson.

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Speaker 2: This is the appeal from the Supreme Court of Colorado,

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Speaker 2: the Supreme Court of Colorado which infamously infamously held in

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Speaker 2: a divided ruling that Donald Trump was disqualified from the

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Speaker 2: ballot this fall due to the insurrection clause of Section

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Speaker 2: three of the Fourteenth Amendment, which has it received extra

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Speaker 2: extraordinarily litigation when it comes to the federal jiciary. Since

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Speaker 2: the fourteenth Amendment was ratified back in eighteen sixty eight,

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Speaker 2: you did have one case the very year after the

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Speaker 2: amendment was ratified, so this will be eighteen sixty nine,

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Speaker 2: a case called Griffin's Case. It was an opinion written

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Speaker 2: by Justice sam And Chase, who wrote an opinion that

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Speaker 2: seems to strongly militate in favor of Donald Trump. In

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Speaker 2: this opinion Griffin's Case, Justice Chase basically said that where

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Speaker 2: you have sweeping language in a clause like this, like

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Speaker 2: the insurrection clause of Section three to the fourteenth Amendment,

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Speaker 2: then you essentially need Congress to pass a follow up

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Speaker 2: subsequent statute in order to put into effect the nuts

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Speaker 2: and bolts of this. Put another way, the constitutional provision

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Speaker 2: is not itself what lawyers refer to as self executing.

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Speaker 2: You need further congressional legislation to actually show how you're

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Speaker 2: going to enforce this. In Congress today really has not done.

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Speaker 2: So they passed one statute a very long time ago

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Speaker 2: called the Insurrection Act, which doesn't really have a whole

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Speaker 2: lot to say about the insurrection clause, but it's their

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Speaker 2: opponent's best arguments. In any event, there. This is a huge,

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Speaker 2: huge argument. As I said on the show, I know

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Speaker 2: Donald Trump's lawyer in this case the Council record, who

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Speaker 2: filed the brief for the Supreme Court on Monday, and

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Speaker 2: who was representing him at the Supreme Court today. I

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Speaker 2: know him personally quite well. He is named Jonathan Mitchell.

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Speaker 2: I've known Jonathan for over a decade now. Jonathan. I

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Speaker 2: cannot emphasize this point enough to the listeners here. John

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Speaker 2: de Mitchell is one of the most brilliant legal minds

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Speaker 2: on the American right. In a just world, he would be,

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Speaker 2: at a bare minimum, a federal appeals judge. At a maximum,

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Speaker 2: he would be United States Slicster General, United States Attorney General,

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Speaker 2: or god willing, if we if we should be so lucky,

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Speaker 2: a United States Supreme Court justice. He really is just

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Speaker 2: that kind of legal intellect, the kind of statutes that

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Speaker 2: he has helped work on behind the scenes here and

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Speaker 2: the brief that he turned into the Supreme Court on

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Speaker 2: Monday on behalf of his client, the former President Donald Trump.

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Speaker 2: It's an exceptional brief and he basically makes four constitutional

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Speaker 2: argument and then he makes an additional argument when it

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Speaker 2: comes to the Colorado Election Code perhaps actually five US

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Speaker 2: constitutional arguments, depending on how you're counting. There so one

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Speaker 2: argument that he makes what we're just talking about about

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Speaker 2: how you need additional congressional legislation to actually implement the

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Speaker 2: insurrection clause of fourteen Amendments, Section three, that that is

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Speaker 2: not self executing. This is a heavy citation to that

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Speaker 2: eighteen sixty nine case called Griffin's case. Furthermore, there is

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Speaker 2: the argument that a president is not a quote officer

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Speaker 2: of the United States as that term is used in

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Speaker 2: section three the fourteenth Amendment. And if a president is

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Speaker 2: not a quote officer of the United States as the

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Speaker 2: term is used, then he definitely is not subsumed into

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Speaker 2: any of the other renumerate categories. So he has to

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Speaker 2: be part of that in order for any of this

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Speaker 2: ship to fly in the first place. By the way,

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Speaker 2: as an aside, really interesting article in the New York

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Speaker 2: Times dropped yesterday about a somewhat obscure legal academic who

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Speaker 2: I actually have no not necessarily in a closely personal level,

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Speaker 2: but we've been in touch a lot over the years.

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Speaker 2: God by the name of Seth Tillman, who is a

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Speaker 2: somewhat arcane, an obscure constitutional theorist. Professor Tillman actually doesn't

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Speaker 2: even teach in the United States. He teaches in Ireland,

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Speaker 2: which is really interesting and pretty unusual for a religious

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Speaker 2: june I speak from the college year and personal knowledge

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Speaker 2: to live in Dublin, Ireland. But he's been putting up

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Speaker 2: some really brilliant constitutional scholarship over the past few years,

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Speaker 2: especially during the Trump era, mostly alongside his frequent co author,

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Speaker 2: my friend Josh Blackman, a law professor in Houston, Texas,

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Speaker 2: and this New York Times profile is really articulating the

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Speaker 2: work that Professor Tillman has done when it comes to

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Speaker 2: this very argument that Jonathan Mitchell on behalf of Donald

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Speaker 2: Trump advances in this brief, which is that the president

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Speaker 2: is not a quote officer of the United States as

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Speaker 2: that phrase is used in section three of the fourteenth Amendment. Therefore,

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Speaker 2: on those grounds which are totally independent additional grounds to

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Speaker 2: the whole argument when it comes to Congress and self execution,

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Speaker 2: that the argument fails there as well. There are also

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Speaker 2: other reasons why this argument fails, as John De Mitchell

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Speaker 2: argues in his brief, and as frankly anyone who has

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Speaker 2: more than one brain cell can can into it. Namely

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Speaker 2: that January sixth, twenty twenty one is not a quote

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Speaker 2: insurrections as the term is used in the Fourteenth Amendments.

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Speaker 2: To put it mildly, the events of January sixth, twenty

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Speaker 2: twenty one, which began as and frankly ended as an

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Speaker 2: exceedingly peaceful protest where you had virtually no one who

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Speaker 2: is armed. To try to analogize this to the actual

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Speaker 2: insurrection that the draftsmen of the Fourteenth Amendment had in mind,

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Speaker 2: which would be the actual four year Confederate uprising for

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Speaker 2: God's sake, I mean, culminating in the surrender of lead

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Speaker 2: to Grant and appomatics courthouse. I mean, I mean you

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Speaker 2: have to be a patently insane person. Yeah, I mean

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Speaker 2: you have to be drugged out, drooling out of your mouth,

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Speaker 2: watching Joy Read and Enjoy behar on repeat in order

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Speaker 2: to arrive in an argument like that. I mean, seriously,

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Speaker 2: check yourself into an asylum if you actually think that

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Speaker 2: would happen on January sixth, is directly equivalent to the

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Speaker 2: United States Civil War, which saw a well over half

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Speaker 2: a million debt a four year long uprising. I mean,

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Speaker 2: I can't believe that I even need to say this.

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Speaker 2: I can't believe that someone is smart as Jonathan Mitchell

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Speaker 2: is going to have to actually argue this in front

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Speaker 2: of the non justices. It's just absolutely, absolutely outlandish, frankly,

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Speaker 2: So it's gonna be interesting to see what they focus on.

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Speaker 2: What is going to happen here at the Orler argument?

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Speaker 2: Where is Jonathan Mitchell? Where is the lawyer on the

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Speaker 2: other side of the argument representing and in this case,

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Speaker 2: the state of Colorado. Where are they going to focus

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Speaker 2: their time at oral argument? Are they going to focus

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Speaker 2: on this question as to whether the president is a

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Speaker 2: quote officer of the United States for purposes of Section three.

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Speaker 2: Are they going to focus on the question as to

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Speaker 2: whether Section three is quote unquote self executing or whether

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Speaker 2: Congress must have legislated a specific mechanism for its enforcements.

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Speaker 2: Are they going to talk about whether Section three is

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Speaker 2: only a restriction on holding office as opposed to being

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Speaker 2: elected to that office. That's another source of contention throughout

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Speaker 2: this litigation. Are they going to actually focus on the

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Speaker 2: meaning of what insurrection is what we were just talking

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Speaker 2: about a minute ago or so. I mean, there's all

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Speaker 2: sorts of ways that this argument can go ultimately, when

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Speaker 2: all is said and done here, I really really do

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Speaker 2: feel confident about this case. I think this is a

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Speaker 2: slam dunk legal case there. I saw my friend Randy Barnett,

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Speaker 2: the esteemed Georgetown law professor, tweeting about this yesterday as well.

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Speaker 2: He was predicting that this was going to come out

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Speaker 2: eight to one or nine to zero, straight up unanimous.

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Speaker 2: What I've been saying for a while is that I

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Speaker 2: think this is going to be at least seven to two.

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Speaker 2: With the four Conservatives, Roberts and then also Kagan, who's

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Speaker 2: the more sensible of the three liberals, I think it's

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Speaker 2: going to be at least that seven to two coalition.

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Speaker 2: But I honestly think that this is a big enough

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Speaker 2: slam dunk case where it definitely would not shock me

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Speaker 2: in the least if this thing ends up being a

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Speaker 2: nine to zero unanimous decision. Regardless, this is a huge,

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Speaker 2: huge day at the United States Supreme Court. This oral

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Speaker 2: argument gets to the very crux of what this new podcast,

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Speaker 2: America on Trial, is dedicated to exploring, which is who

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Speaker 2: ultimately decides the outcome of elections? Is it we the people?

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Speaker 2: Is it we the people of which the preamble of

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Speaker 2: the Constitution speaks we the people who Benjamin Franklin said,

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Speaker 2: it's a republic if you can keep it, the people

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Speaker 2: that are supposed to be in charge of the destiny

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Speaker 2: and the ultimate orientation of this grand experiment in order liberty.

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Speaker 2: Are we the ones who are going to be able

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Speaker 2: to choose our leaders? Are we the people going to

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Speaker 2: be actually able to select our own presidents? Or or

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Speaker 2: are we going to let these dirtbag, scumbag, tangentious lawyers

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Speaker 2: try to boot these presidential candidate's off the ballot based

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Speaker 2: on dusting off some arcane, obscure provisions that have barely

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Speaker 2: been litigated from a constitutional provision ratified one hundred and

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Speaker 2: fifty years ago. I mean that, basically, boiled down is

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Speaker 2: what it gets to here. It is we the people

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Speaker 2: versus unaccountable, unaccountable bureaucrats, administrators, and judges. I do confidently

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Speaker 2: predict that Donald Trump is going to prevail and be

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Speaker 2: vindicated on this particular issue. But it's going to be

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Speaker 2: an extraordinary interesting day at the Supreme Court. I know

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Speaker 2: that I will be following along, and I would strongly

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Speaker 2: encourage all of you to do the same. Finally, if

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Speaker 2: you've been enjoying our show America on Trial, please go

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Speaker 2: ahead and give us a subscription. Go ahead and hit

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Speaker 2: the fall button. If you have not already done so,

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Speaker 2: go ahead and download the episode and leave us a

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Speaker 2: comment as well. We really do want to hear from you.

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Speaker 2: The show is still very new. We care a great

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Speaker 2: deal about what you the listener, have to say about it,

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Speaker 2: so go ahead and do that if you have not

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Speaker 2: done so already, So on that note, happy listening today. Everyone,

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Speaker 2: Go ahead and enjoy this or argument in Trump versus

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Speaker 2: Anderson at the United States Supreme Court m