OA35: The Emoluments Clause (w/Seth Barrett Tillman) Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments, I'm your host Thomas Smith and this is my, uh, host number one, uh, Andrew Torrez. Just wanted to make sure I, you know, this week made that clear. I am host, but I'm host number zero, so I, uh yeah.

0:01:27 Andrew: Right, right. Thanks. Soon we will have mathematicians writing into the show. Don't, don't take mathematical advice from a podcast.

0:01:37 Thomas: How are you doing today?

0:01:39 Andrew: I'm great. How are you?

0:01:40 Thomas: Doing great. Uh, we've got, sounds like we've gotten a lot of interesting political questions this week, uh maybe some misconceptions here or there. I'm excited to get to it. As well as An interview, where so we're going to jump over to our first segment, which we're loosely fitting into the "Are You're a Cop" segment, just because we haven't done that one. All right.

0:01:50 Andrew: Yep.

0:02:01 Clip: If you ask a cop if he's a cop, he's like obligated to tell you. It's in the Constitution. Constitution of America?

0:02:11 Clip: So, I should go ahead and ask. You a cop?

0:02:15 Thomas: Andrew, I want to know, our is it, is it a legal misconception or not that 50, uh, Trump electors were illegitimate? This is a story listeners may have seen. I think some people sent it to us. But yeah, are more than 50 electoral college members illegitimate?

0:02:33 Andrew: Well, sort of. So here's, here's the story. This was from, uh, there was a story on the Raw Story and an alternate, and a bunch of folks, uh, sent us this regarding a thousand page report that was generated that purports to show that more than 50 separate Trump Republican electors were not lawfully certified. I've read this entire report. I would say that these objections fall into the following couple of categories, right? So some, are an elector is assigned to the congressional district from which they appear. And many of these electors were assigned, lived in one congressional district, but were serving as an elector from another electoral district, which violates both state and federal election law.

0:03:29 Andrew: A number were elected or appointed officials, which is an issue we'll get into in the main segment. And again, state laws. So, for example, Beau Rivard from Florida was Florida's Republican elector number four. The Florida Constitution, Article 2, Section 5A prohibits any person holding any office of emolument serving as an elector. And Mr. Rivard is also the commissioner of the Florida Fish and Wildlife Conservation Commission. OK, so that's the form that all of these objections take. Right. Which is to say there are requirements to serve as an elector and these people have fallen short of it. But as you know, that's asking just what the law is, is often not the right question, right?

0:04:21 Andrew: So the question is, how do you go about challenging someone as an elector? And the answer is the Federal Elections Act, which we've talked about before. That is 3 U.S.C. 1 et seq. We've talked about the safe harbor provisions of 3 U.S.C. 7 as in terms of the timing of when challenges to electors needed to be brought for certification purposes. Right. In connection with the recounts. There was also a provision under 3 U.S.C. 15 for objecting to the electoral votes from a particular state, given that those electors don't meet various criteria. And the last time that there was an objection was in January of 2005.

0:05:08 Andrew: And it was an objection brought by the objection, I should say, is required by law to be sponsored by one senator. It's brought by a senator, but is also sponsored by at least one member of the House of Representatives. OK. So in 2004, Barbara Boxer in the Senate and former Representative Stephanie Tubbs-Jones brought objections to the qualifications of a couple of Bush-Cheney electors. Uh, and, that um, would not, obviously that would not have resulted in any change to the election. Uh, but it could have just, yeah, yeah, Right. Because, uh, because the margin was, was, was too large.

You know, the margin was, uh, about 20 electoral votes, uh, uh, because, uh, Bush and Cheney won Ohio. Um, but, despite falling um, under the same set of criteria that we have here, uh, and this is really the "are you a cop" portion of the segment because once a formal objection to an elector is raised, then the two houses of Congress, uh, adjourn and evaluate and rule on that objection, right? And as we both know, both the Senate and the House of Representatives are controlled by the Republicans. So the bottom line is there is zero chance that any of these objections, even had they been timely raised, they were not.

0:05:49 Thomas: It not enough? Okay. Yeah.

0:06:39 Andrew: The deadline for raising them was January 6th. But even had they been timely raised, they they would be raised as objections before the Republican Congress. The Republican Congress would receive them, adjourn, and then come back and say, yeah, we don't see a problem with any of this.

0:06:56 Thomas: And then can I ask, maybe this is a dumb question, but even if they said, oh yeah, there's a problem with that elector, don't they just find another elector to cast that vote? Doesn't that, does that, I mean, it's not like that means therefore that elector goes goes to Hillary, they now reverse it, and I mean, really, what would happen and

0:07:13 Andrew: So interestingly, under the provisions of the Federal Election Act, if an elector is disqualified, then their electoral vote is removed from the total. So the reason why it's crucial.

0:07:26 Thomas: 538 has to rename their website, okay yeah

0:07:28 Andrew: Yeah, right. Exactly. They have to become five hundred and twelve and a half or whatever. And and so interestingly, the fact that the report has discrepancies with 50 different Republican electors, this in the range in of this could have been a valid mechanism. Uh, um, the underlying conditions were very different, I would say, and, and you and I have said this on the show multiple times, uh, even if the Democrats controlled Congress, I would be strongly opposed to using this provision to exclude Donald Trump from taking office

0:07:32 Thomas: 50 yeah okay so yeah yeah and okay so just to sum up this this group called Americans Take Action has written what is likely a report because you've described this report in a couple minutes, so I'm guessing that thousand pages, there's... there's a bit of fluff going on, right? There's kind of, there's some filler material in there uh, my question though is, it sounds like this is contrary to most of these things we talk about, this is actually maybe legitimate law, it's just a question of the reality of the how it's enforced and no, the fact that people wouldn't actually do it. Now, can can I ask, if someone went down this road, do you happen to know offhand how many Hillary electors would fall under the same thing?

0:08:03 Andrew: Yeah right Right.

0:08:15 Andrew: A little bit. Yeah.

0:08:42 Andrew: Well, you and again, there is. So the answer is zero because nobody has tried to disqualify any Hillary objectors. But

0:08:50 Thomas: Right, but if they tried, do you know offhanded, like, if, yeah.

0:08:51 Andrew: Yeah, I yeah, I don't I don't know because no one has tried. And it doesn't count until it's formally raised as an objection that is sponsored by both one senator and one representative. Right. So, for example, you know, stick.

0:09:07 Thomas: Well, but no, but what I'm asking is, could some other group called Un-Americans, Un-take, Un-action, I don't know, some group that has another name that's a total or whatever, uh, could they write another report that said, well, look, uh, for, you know, 40, 70, whatever the number is, three, five of the electoral college members who voted for Hillary are ineligible to serve, you know, because you're it sounded like you were answering okay that

0:09:08 Andrew: Yeah. Right. Yeah. And we just don't know. Right. Yeah. So the answer to that question is we don't know because no Trump supporting groups are motivated to try and challenge Hillary electors. I suspect that, well, I was going to say I suspect that there are probably some irregularities, but I will say this, right, like we know that it was a challenge given that Trump is kind of an outsider in the Republican Party and came very, very late to being embraced by the establishment, that it would not surprise me if this were uniquely irregular to Trump. That is that they specifically found a hard time.

0:10:11 Thomas: Is interesting okay because I had been taking the thing you said, I'd been taking a mean to be like, well, this is just something kind of everybody does because nobody cares, you know, like, that's why nobody would challenge it because people just do electors this way, it doesn't matter, but that's even more interesting because it sounds like this is like kind of totally legitimate, just not the way that anyone would want to win an election.

0:10:13 Andrew: Yeah.

0:10:33 Andrew: Yeah. Now, that's that's right. I mean, that's to me, that's the bottom line is that idea of overturning an election after the fact with, you know, technicalities in the residence of electors is just I mean, that to me, that's profoundly anti-democratic. It's kind of it's the difference between and this happens in congressional races. It happened in Barack Obama's first Senate race, first House race, I think, where you have to compile a certain number of signatures to get onto the ballot in a local race. And frequently you will have one challenge. One candidate will challenge another candidate. Right. Like so if if you have to have 10,000 signatures and your opponent in a primary has submitted 10,008 signatures.

0:11:24 Andrew: Right. Then your lawyers will often go and scrutinize that list. And if they can find nine, yeah, you know, where people have signed, because, you know, I mean, you get you get volunteers and people sign as Mickey Mouse and, you know, whatever, right? Like people screw that up. You can get nine and you can disqualify somebody. So usually, right, if you're a campaign manager and, you know, they say, well, you need 10,000 signatures, your campaign manager will submit 20,000 signatures, right, to sort of deter the other side into that. So I don't have a problem with using the law in that way to disqualify somebody prior to an election. But I do have a problem after the fact. Right. Like if you were to take that provision

0:11:33 Thomas: Duplicates or something yeah just random, yeah if

0:12:05 Andrew: And then say, yeah, right.

0:12:05 Thomas: I were to take the hyper left partisan kind of counterpoint and say, but Andrew, why can't they just follow the damn rules? Like, isn't it, is there no sense in which Republicans need to follow the rules when it comes to the electors? I mean, is that all

0:12:08 Andrew: Right.

0:12:20 Andrew: Well, and there, right, I mean, to sort of take the position of the Republican Party, which is not one I'm asked to do very often, I think I would say, look, it's a question of what are the consequences for breaking this rule, right? Right. And if I if I want to go a step further, I would say, hey, look like you guys spent, you know, an hour and all of the summer talking about Hillary Clinton's emails. And there was no dispute that, you know, she broke protocol. But the question was, should the punishment for being terrible at email be, you know, busting rocks at Leavenworth? And you concluded that no. And, you know, if she were a civil service employee, she could have been disciplined or fined or whatever or, you know, reduced in rank or something like that. Since she wasn't, you know, her essential, essentially her punishment, there was nothing.

0:13:08 Andrew: And I would say, you know, that same analogy would apply here. Yes, we should have done a better job in getting these Trump electors lined up. Yes, we should play by the rules. But if the punishment is essentially, you know, the political death penalty, right? Like, you don't get to be president when you won. That seems a little bit of a disproportionate punishment. So that would would be my answer

0:13:22 Thomas: Right I get it Andrew Torrez Republican that's that's what I've I get you're part of the, uh, yeah establishment

0:13:32 Andrew: Yep right I have I have joined the establishment now, so right.

0:13:39 Thomas: Lawyer Andrew Republican and Republican Torres, uh, okay, no, that makes sense, but, um, interesting, I, I, that was a little bit of a twist on what I thought this was going to be, one of those, you know, ah, total BS, someone just, you know, nutcase writing a thousand page report where most of it was probably just nonsense about being in love with a celebrity or something, I thought it was gonna be total crackpot, but turns out kind of legitimate, just nobody wants to win that way, okay, uh, For the main topic for today, we're going to be talking about the Emoluments Clause. And before we go into what I think was a pretty technical discussion between Andrew and Seth Barrett Tillman on the Emoliaments Clause, I'm wondering, Andrew, what is the sort of consensus view, I guess, if it's safe to call that, on emoluments.

Because prior to this article that we're looking at, I am sure it's going to to be linked in the show notes by Seth Barrett Tillman, I would have just assumed that this would apply to Donald Trump, that he would be, we could, we could possibly impeach him on the Emoluments Clause because of very, it may be his dealings with Russia, and it just kind of depends on the facts. But is that, is that a good assumption? Is that a safe assumption, or am I wrong? Well,

0:14:54 Andrew: No, I think that's right. So the Emoluments Clause is a provision, it's in Article 1, Section Section nine of the Constitution, and it prohibits any person holding any office of profit or trust under the United States to accept any present emolument, office or title from any king, prince or foreign state without the consent of Congress. And so the argument that's being made is that Donald Trump, by virtue of having foreign holdings, is receiving, potentially receiving emoluments from that foreign state by getting preferential treatment and sending people to his hotels and, you know, all sorts of things. Right. And this is a, it's a common argument on the left, that it was raised to us on a number of occasions.

0:15:41 Andrew: And, you know, Thomas, you and I have kind of consistently advocated on the show that looking for grounds to prevent Trump from being president or to impeach him upon assuming office are just politically, I think, not, don't make a whole lot of sense. Um, right.

0:15:59 Thomas: Okay. I, First off, I want to separate a couple of things, because our interview is going to be one thing, like, that's going to be you, you talk to Seth Barrett Tillman about the very specific wording of the Emoluments Clause and whether or not that applies to president. But let's, let's go separate from that, just talking politically now, which, which you were just doing, would you not see it as valid if, if, again, we, we assume that this does apply to presidents, if there's all kinds of proof of Donald Trump doing this, I don't see any reason why you wouldn't want to impeach him based on that.

I mean, I think maybe our views are a little more different than we thought, or maybe you'll convince me otherwise right now. But I mean, if he's doing something impeachable, I don't have any problem impeaching him. I think that presidents should be held to the standard that they need to be. Now, I will say that it doesn't make me that happy because I'm more, more afraid of Mike Pence, to be honest with you. But I do still, but I would say that, sure, I'm not going to try to find some illegitimate or some corner case reasons to impeach him if they're not valid. But it sounds like this could be valid.

0:16:10 Andrew: Yeah No, It, let me be, let me be clear on that. So the first is, I don't know that I've said this on the show, um, a president can be impeached for high crimes and misdemeanors, and one of the things that we learned in the impeachment of Bill Clinton in 1998 is that high crimes and misdemeanors are pretty much whatever the Congress thinks high crimes and misdemeanors are. Right. So there was some debate over, does lying in a deposition about a sexual act count as a high crime and misdemeanor? Right. And the answer is, on the one hand, from legal precedent, the answer is, right, like it's it's never happened before, right.

But, uh, but that legal argument didn't stop the House from, uh, bringing up articles of impeachment and voting on articles of impeachment. And appointing managers to impeach the president on those grounds because they were convinced that it constituted a high crime or misdemeanor. So with that in mind, believe, and we're going to discuss before and afterwards, despite the presentation by Seth Barrett Tillman, that the, that Emoluments Clause does indeed apply to the president. And so I think if you had a situation where a critical mass of members of Congress, including a certain number of Republicans. Right. I don't know what that number is.

0:17:41 Thomas: Of course, it's got to be

0:18:26 Andrew: It's it's it can't be it can't be zero and it can't be one. And it can't be, you know, like that one Republican from, you know, upstate New York who got in on us. Like it's got to be 10 percent or 20 percent or 25. I don't know what it is, but it has to be enough Republicans such that there's a bipartisan consensus that there is that the president has violated the law. And in that situation, then I think it makes sense to talk about impeachment. Right now, we don't have that kind of consensus. Right. And until we do, until, you know, you've connected up the dots in such a way I think makes that a plausible case. That's when I would say politically, it's not a it's not a smart tactic to talk impeachment. So I

0:18:26 Thomas: Some number. Yeah. Yeah.

0:19:09 Andrew: Don't know how that squares with with your view.

0:19:10 Thomas: Well, OK. I don't know. Yeah, I still I still have questions. It sounds like you're you're talking a lot, almost as a, what's a way to put it? You're talking almost as an observer of like, well, here's what we need for impeachment. We need a critical mass of people to think that he's done something impeachable. And that's a separate question from saying, Andrew Torrez, you're an independent, right? Now let's pretend you're independent Senator Andrew Torrez. Senator Senator Torrez, what's it going to take for you to think, you know what, he's done something impeachable? You know, you forget you're not on either side. You're just you're Andrew Torrez. You're all about the, you Know, things being by the by the law, reasonably speaking. What what are you going to think it's going to Take? Would you would you think that certain dealings with Russia or what facts would it take, I suppose, for you To say, well, you No, he violated this emoluments clause he's uh you know we should impeach him what would that take

0:19:11 Andrew: Sure.

0:20:07 Andrew: So as an independent, my thought would be that if there were hard evidence of a payment by, say, Russia to Donald Trump, his organization, his kids, any evidence of something like that, to me, that would very clearly violate the emoluments clause. I think it would not be hard to get the kind of political support that I'm talking about at that point where, you know, when when a foreign government is making a direct payment under the table to your president, I would certainly hope that you would get that that critical mass of Republicans. I would add that the scenario I've just described is not sufficient to convict the president of bribery, for example. So, you know, one of the things we don't, we don't talk about this in the interview with Seth Barrett Tillman, but but other folks have have raised this is, you know, even if the emoluments clause doesn't apply to the president, that, you know, that 18 U.S.C. 201 still applies to the president.

That's the federal bribery clause. But one of the things that we learned from the Bob McDonnell case, that was the recent Supreme Court case about the governor of Virginia who received all of these lavish gifts from campaign contributors, um, uh, and that conviction was overturned by the Supreme Court, uh, and uh

0:20:37 Thomas: Yeah, just

0:21:25 Andrew: Justice Roberts really emphasized that the key to proving bribery is proving a quid pro quo, right? Like it's not enough to show your campaign contributors yeah gave you the, you've got to show that you did something in response, right? And the emoluments clause, I mean, one of the the things that I like, that it illustrates from our nation's history is the common sense notion of, you know, when somebody is giving a huge chunk of money to an elected official. Right.

0:21:35 Thomas: The payment, okay, hmm, there's an implied quid pro quo, I'm guessing, yeah, especially when it's Donald Trump, no one likes that guy, what, so, and then also the other, I guess the other component of it is, all this stuff has got to be in the future, right, because it doesn't, does it matter what's happening now? I mean, he's just, he′s president-elect, I going with the traditional interpretation of the emoluments clause, he hasn't been an official yet, right? So it's all going to have to do with what happens in the future, right?

0:21:58 Andrew: There's there's. Yeah, exactly. That like people don't write, checks with lots of zeros on the end of it because they like you. Right. You know, correct.

0:22:34 Andrew: Correct. Yeah. The emoluments clause would depend upon him holding an office of profit or trust under the United States, which is to say being president. The.

0:22:46 Thomas: We'll see. According to you, Andrew Torrez, that means being president. Okay.

0:22:51 Andrew: The. Yes. Right. Right. And I mean, let's talk about that a little bit. So.

0:22:54 Thomas: Sure, sure. So yeah, so let's transition just because the audience is a little blind on this. So now, so we've talked about politically kind of what's going on with impeachment. I get your answer, independent independent Senator Torrez. Respectfully, I understand you'd want to see proof. You'd want to see something that definitely suggested he had either broken the law or run afoul of this clause or whatever. And then you would be, I guess, maybe you would be lobbying your fellow congressmen and women to get the impeachment effort going. But I just wanted to tie that up. I just want to distinguish between what's a political reality, reality of having a Republican-dominated Congress, versus what I guess is quote unquote the right thing, or like quote unquote, to the best of your ability, like the unbiased thing to do, you know?

0:22:58 Andrew: Right.

0:23:23 Andrew: That's right.

0:23:42 Andrew: Yeah, yeah. And I think that the direct payment scenario I've laid out is, you know, I think a slam dunk case. I don't mean that to suggest that some of the indirect cases are not also potentially worthy of running afoul of the emoluments clause. So, you not hard to imagine preferential construction deals. Forgiveness of loans.

0:24:08 Thomas: Yeah. So there's, it doesn't literally have to be pay to the order of Donald J. Trump president in, in the memo field, it says definite violation of emoluments clause. Yeah.

0:24:12 Andrew: Right. It does not have to be a sack of money with a dollar sign on it, but exactly, exactly.

0:24:21 Thomas: So it doesn'T have to BE that, but, but I get what you're saying. It would need to be, you need more explicit proof, I guess. Okay. And so transitioning from that kind of political reality and Senator Torrez's answer, now we'll go back to lawyer Torrez. Now let's talk about this emoluments clause because the content of your interview with, your interview with Seth Barrett Tillman, according to him, it's not so clear whether or not the Emoluments Clause even applies to presidents and vice presidents. So with that in mind, let's get to part one of the interview with Seth Barrett Tillman on the emoluments clause I

0:24:24 Andrew: Right.

0:24:58 Andrew: Mr. Tillman is a lecturer, which is the equivalent of a full-time professor here in the States. I have been somewhat erroneously referring to him as Professor Tillman, but that's how I've come to know him. So Professor Tillman has view on the Emoluments Clause that I found really interesting and that I really wanted to share and explore with our listeners. So just kind of as a setup, the Emolluments Claws, this is a question some of our listeners have asked us about with respect to the incoming president. It is Article 1, Section 9 of the Constitution, and it says, no title of nobility shall be granted by the United States and no person holding any office of profit or trust under them shall, without the consent of Congress, accept any present emolument office or title of any kind whatsoever from any king, prince, or foreign state.

0:25:48 Andrew: And Professor Tillman, it's your view that that clause does not apply to the president of the United States, correct?

0:25:56 Seth: Correct. My view is the second half doesn't apply. The first part, which is often called the titles clause, that the United States shall not grant a title, that applies to everyone, including the president. It's only the part about presidents, gifts, emoluments, titles, that that only applies in my view to what I would call statutory officers, that is officers or positions that are created by federal statute.

0:26:17 Andrew: Okay. [0:26:17] GUEST1: Okay. And just to explore that a little bit, this is a variation on a hypothetical that the professor, Zephyr Teachout, asked of you in her exchanges with you in the Northwestern Law Review. And I'm not sure if you respond. I've obviously, I've read those articles, but possibly But I missed it. But suppose that the day after the inauguration, Russia were to bestow the title of, you know, Prince Donald on our incoming president. And it means that your view that he's free to accept that.

0:26:49 Seth: View is that the foreign emoluments clause wouldn't be at play, uh, whether he's freed, whether she's free. I would say that it would be very poor political judgment for him to accept it. And I, and I, I would also say that, um, questions of titles, pose peculiar challenges, uh because of divided loyalties and I could Congress ramping up an inquiry on that. But if you're asking me, does he fall technically under the scope of the clause, I want to be clear on this, and I would say the answer to that is no. Let me put it to you another way.

0:26:52 Andrew: OK, I Right.

0:27:23 Seth: The vast majority of constitutional law professors, or public law professors in general, would agree that the clause does not include members of Congress. Although I have to say I was surprised when I read Eisen and Painter in their article in The Atlantic suggesting it did. Did. We've had almost undivided authority on this for 30 years, and going back further than that, that the office language of the Constitution only refers to executive branch and traditional branch employees, except the more general office under language, which would also include employees of the legislative branch, but not the elected members of Congress. They're not officers. They're described by the Constitution as members. By the same token, and I'd say that any senator could accept a title without breaking the Foreign Emoluments Clause. It might be very bad policy, but that's a different inquiry. Let me put it to you another way. There are lots of bad things in the world that could happen. That doesn't mean the Constitution has addressed each one, or we should pretend that it does.

I mean, I could pose lots of terrible hypotheticals that the Constitution quite clearly doesn't address. For example, what if a person is elected governor from two states? That'd be very Bad. He'd have two full-time salaries, but the The federal constitution doesn't say anything about it or being a governor and a senator or a senator and a representative. There are lots of conflicts that the founding fathers didn't put into the constitution because they were burdened with a history of particular fears.

0:27:56 Andrew: Okay.

0:28:45 Seth: And the constitution reflected the fears that they've actually experienced as colonies and as newly independent states.

0:29:11 Andrew: Because you've parsed the clause very carefully, I wanted to make sure I understood that its application, because obviously present emolument office or title are sort of all in a running chain with, with comma. So I just wanted to makes sure that I understood the extent of the application.

0:29:28 Seth: Those could be understood reasonably expansively, reasonably, not not not, you know, wildly so. But it's the for me, the controlling language is the office of profit or trust under the United States language. And I would just summarize that by saying office under the US.

0:29:31 Andrew: Right. Right, right. Okay, and, and obviously we're we're going to get into that. I want to take a step back. And I do want to explain for our audience, my understanding, you have been writing on the meaning of the word office and its variations in the constitution, at least as far as I'm aware of since 2008. So this is not an this is not an ad hoc position that you've, you know, come up with, uh, to, to exempt Trump.

0:30:11 Seth: Let me let me point out that this is the second time during this election cycle that this issue came up. It also came up in relation to Hillary Clinton. Hillary Clinton, many people wanted to see prosecuted under a statute in the United States Code that also used the exact same language. Had she been convicted, she would have been disqualified from any office under the United States. Former Attorney General Mukasey got on TV and he said if she were prosecuted and convicted, she couldn't run for president or be president because he said this office under the United States language includes the president. Now, in response to Mukasey's statement, I published a very short article on the Volokh Conspiracy, which is a blog on the Washington Post. And Mukasey was very generous and retracted the next day. All right. So so in a a sense, this very same argument came up with Clinton and it was in a sense pro she was never prosecuted. But in theory, if she were, I tried to point out that it wouldn't keep her out of the presidency because this language doesn't reach the presidency.

0:30:20 Andrew: Right. Yeah.

0:31:13 Seth: It reaches appointed officers.

0:31:14 Andrew: Right. And, [0:31:15] GUEST1: And, And, and I, and I want to, I want to follow up on that thread a little bit. I, I should add that we did one of our most, uh, popular episodes was a, an in-depth look at the Espionage Act. So it, we, we have discussed the merits of that prosecution and not, the, uh, consequences, um, uh, but I, I let me, let me explore that uh just a little bit, um, same language, um, of office under the United States, uh, is also used in the impeachments clause. And so is it, is it your view that if a president [0:31:45] GUEST1: a... No, no, no. That's Oh,

0:31:45 Seth: Not true. That's not true. In the impeachment clause, it's officer of the United States. It's a variation. And most scholars, particularly scholars who were trained under the tutelage of Akhil Amar or came out of what you might widely call Yale school originalism, the seminal article on this subject suggested there's no difference between officer of of the United States, an officer under the United States, and all the other variants. And what my writing has basically been doing since 2008, it's challenged that status quo which sought to impose uniformity on all the various language in the Constitution.

0:31:46 Andrew: Okay. Right. Right.

0:32:21 Andrew: So, Um, let's, let's talk about that as a reading, uh,

0:32:23 Seth: Okay, so the impeachment clause says the president, vice president, and officers of the United States are subject to impeachment. And I think there are, It's not just me. It's Associate Justice Joseph Story, who wrote in his famous book, Commentaries on the Constitution, that if the president and vice president, this is according to Story, were officers of the United States, it's repetitive. Officers of the Unites States is listed there, and the president or vice president are expressly there because they are not encompassed by the category of officer of the U.S. States.

And Then Story also goes on to mention that the same argument applies to office under the United States, that the president, he suggests he's not firm on this, is not in this category either. So I don't want your listeners to think this is just some crazy argument and academic thought of all on his own. People have thought of this better than me and smarter than me. And hundreds of years ago before me. Now, I have to admit, when I first came up with this argument, I wasn't aware that Story had thought of it before me, I was very pleasantly surprised to find that Story said something on this, but

0:32:24 Andrew: Right. Right. Okay.

0:32:55 Andrew: So, Yeah.

0:33:26 Seth: The argument does not start with me.

0:33:29 Andrew: Let, I want to look actually to uh the language that that I was thinking of was the language at the end of Article One, Section Three, uh, relating to impeachment, which says judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. And so my right.

0:33:51 Seth: That's often called the disqualification clause, and you want to know what that language means. Perfectly fair. So the way impeachment works is if a person is impeached by the House, there's a trial in the Senate. If the person is convicted by the Senate, the majority view is he automatically loses his position if he's in position at the time, if he hasn't resigned. There's a second punishment the Senate can impose, and it's called disqualification. Only three people have ever been disqualified in American history. Only three.

0:33:52 Andrew: Right. Right. Right. Right.

0:34:19 Seth: And only one of those three is now alive. It was a judge named Porteus, I think, from Louisiana. Even people who were impeached and convicted for betraying the United States during the Civil War were not disqualified, which is pretty amazing, except for one judge, to be really bad to be disqualified. And we don't have a lot of case law on disqualification simply because of the three people who were disqualified, none of them entered political elective politics. So what I have to tell you is that there's... there's no rich judicial tradition opining on this language. My view, based on similarity of other language and other clauses, is that this clause, like the other clause, is a proscription against an impeached, convicted, and disqualified person, person, being appointed to a position in any of the three branches.

0:35:05 Seth: Now, you might ask yourself, if you really were a interested in grammar, why is the language here a little bit different from every other constitutional provision? Because this is the only constitutional provision that uses the language of honor. And I could give you an answer to that. I don't know how satisfying it will be. I don't know how satisfied it will because-

0:35:21 Andrew: What You've, you've anticipated my question, so, uh, so go ahead, right.

0:35:30 Seth: What I could tell you in all fairness, and again, this is something that should go into this entire debate, not just for this unique clause, but also for the wider issue with the foreign armada, is the courts have not opined on almost any of the variants of this language. The courts have opined an officer of the United States in great detail, but the other variants the courts did not opine on. There's simply been no occasion. So I'm not giving you the official story. I'm giving you one academic's best guess after several years of study on the question. And my understanding of why honor was added here is as an extra precaution for how the clause might have been confused. That is, office of profit or trust under the United States or office of trust or profit under the States, because different clauses vary the order.

0:36:17 Seth: Some are profit and trust and some are trust and profit. I think we're meant to include every office under the U.S. States. They weren't to catch everything. But just in case someone was simple-minded enough to think that office of profit was one category and office of trust was another, that is, could one imagine an office that was not of profit and not of trust? The only thing that would be left over would be an office that had no official duties and had no artificial pay. And an office that has neither of those are sometimes called offices of honor, an honorific office. And they, they wanted to make sure that a person who was so bad that was subject to disqualification would either – would also be cut out of that. I happen to think that language wasn't necessary because the whole purpose of describing an office of profit or trust was already to capture everything.

0:37:05 Seth: An office – that is, what we mean by an office or trust is an office whose duties can't be delegated. And what we means by an Office of Profit is an Office that can. So those two really already capture everything, but just in case because disqualifications – was such a significant punishment that someone might misunderstand its scope, they were even going to cut out minor offices of honor. An office of honor would certainly not include the presidency because the presidency is a paid office and the presidency has non-delegable duties. It's described as a position of trust, but it's not under the United States. So

0:37:40 Andrew: So So So Let me, let me put all that back together again. It, it's, it's your position that that the disqualification clause, the inclusion of the word honor, was meant to sweep up every conceivable appointed office, but it still excludes elective office. Do I understand that correctly?

0:37:59 Seth: Office under the United States, any, anything that's under the United States with, with starting with the word office would only be restrictive. That is, if you put in profit, trust, or honor, it's going to be less than the wider, the wider possibility of office under the united States office under the United states, the widest possible category cannot include the president or vice president in my view, because those offices are offices that are created or destroyed or defeasible by statute, not offices created by the constitution, particularly apex positions. Those are going to be described expressly. Office of honor is at most a sweep up. And as a matter of fact, just, just to give you a little bit of a, a taste for how bizarre this becomes. If you look at the constitution you'll see whenever it uses office of profit or trust, the P in profit and the T of trust are capitalized, but in the disqualification clause, the H of honor is small case. It was an afterthought.

0:38:11 Andrew: Right.

0:38:53 Andrew: Just sort of putting it all together again, our listeners are mostly non-lawyers. So it's your position that under the disqualified clause, somebody who who has been impeached and disqualified, is prohibited from holding any executive or any appointed office in the United States, but would remain free to run for president, be elected president and assume the office of the presidency.

0:39:17 Seth: And that should be no surprise because we have many decisions on point that say a person sitting in jail convicted of a felony can actually run for the president and, and be elected. Uh, being convicted by the Senate is certainly less than being convicted by a court of your peers. I am not surprised that the qualifications in the Constitution for elective office are just the traditional ones, age and residence and citizenship, and that the disqualification clause was not meant to limit that. There was a terrible tradition coming out of the Wilkes case, which was a British case of an elected British parliamentarian who was was repeatedly thrown out of parliament for having unpopular views.

And the idea that the American Republic, during the experience of Wilkes and similar experiences in the colonies, would allow the government, that is one group of elected officials, to kick out another and to do it repeatedly over the will of the people. If the people know about an impeachment and know about a conviction and know of a disqualification, but elect someone anyway, Anyway, it's no surprise to me that the Constitution would allow that because that was the tradition they were fighting against during the revolution,

0:39:34 Andrew: Not sure I agree with that, but OK.

0:40:28 Seth: The tradition that a faction in parliament would use its oppressive power to kick out elected members.

0:40:35 Andrew: With that understanding of why, why the framers might have intended to exclude the presidency from the list of offices that would otherwise be reached by the disqualification clause. Do you have a postulate or an understanding of why the the framers might have tended to do something similar with the emoluments clause? In other words, why they would have been very, very concerned about gift giving to of the executive branch who were appointed, but not at all concerned about that same gift giving the president and the vice president. [0:41:12] GUEST1: the vice president. Well, It

0:41:12 Seth: Again, not just the president, vice president, but my view is all elected officials and that would include senators and representatives. So yes, I, I do have a view. And so I sort of have a little view and a big view. The little view is basically this. The history of the Foreign Emoluments Clause was the history of ambassadors. That was that was the stereotypical fear that that ambassadors sent by the United States into foreign courts would be nobbled by getting gifts. That that was the fear. Now, they could have used the word ambassador in the Foreign Emoluments Clause. They could have.

The problem with using the word Ambassador is that there are all sorts of grades of ambassadors. And of course, you might send a person as an unofficial ambassador or as a temporary diplomat, and you don't want people by the name of something escaping the burden of the law. So they used wider language.

They used the language of office, officer under the United States to capture all types of ambassadors, and not just ambassadors, but other appointed officials that would participate in foreign affairs, or even if they didn't participate in foreign fairs, there was some fear that they could be nobbled and they had important government power.

0:41:16 Andrew: Sure. Well,

0:42:17 Seth: So the fact that they wanted to use expansive language doesn't necessarily mean they wanted it to include everybody. They didn't expand it to included private citizens. They didn't expanded to include state officials. As a matter of fact, the predecessor clause to the US Constitution's Foreign Emoluments Clause, the clause that existed in the prior Constitution of the United States, which was called the Articles of Confederation. The predecessor clause, in fact, did include state officials. That was dropped from our Foreign Emoluments Clause. So they definitely had in mind discriminating between different sorts of positions where their real fear was. So now another question is, but okay, so you might say, Tillman, ambassadors was the coverage. Why would they want to exempt the president? Why would they wanna exempt Congress?

0:43:02 Seth: Well, one, they might never have thought about it. The second reason, they might not have feared it because the the president was here at home, not abroad. But it could be, and I'd suggest there's another reason, which is you wanted the president and other elected officials, in fact, to have the potential to accept such gifts. And such gift giving in the future could be regulated by statute. It didn't have to be constitutionalized. And that probably takes us back to something that is, you know, essential for people to understand about what's going on with the president-elect. The fact that the Foreign Emoluments Clause doesn't control this particular set of circumstances doesn't mean Congress should be cut out. Congress probably should pass some sort of statute to regularize the position of the president in this particular sort of circumstances.

0:43:50 Seth: But it has nothing to do with the Foreign Emonuments Claws. The Foreign Emoluments Clause was to protect ambassadors and diplomats and people in the regular course of events, albeit the people who drafted the Constitution used more expansive language. But the idea that you'd want to bring in apex officials who I would say need some residual discussion to carry on diplomacy, probably it makes sense not to include them. By the way, there's an unfairness people will think. Why are you including the guys low down and not the guys at top? And part of the answer to that is I didn't draft it. But another way of thinking about it is it's not uncommon to leave a certain residual amount of discretion in the system for certain important apex officials.

The classic example of this is that the Federal Code of Ethics for judges, which is binding on all federal judges, believe it or not, except Supreme Court judges. And people will laugh when they hear that. They'll say, what, federal U.S. Supreme Court judges are the one group of judges that don't need ethics?

And there's a reason the Supreme Court charges were exempted, because if you put Supreme Court judges under the control of an outside ethics board, that outside ethics board will very quickly become the Supreme Court.

0:44:14 Andrew: Well,

0:45:01 Seth: They will in fact control who gets to sit on each decision, and they will in effect be less monitored than the court you have. The president and the vice president and Congress are monitored. They're monitored by elections and by the fourth estate. If you take away all their discretion, there will be a cost to the system.

0:45:18 Andrew: I, I would, would I point out that the emoluments clause as drafted in the Constitution does have that play in the joints, right, in that it has shall and it specifically added the without the consent of Congress, which, you know, obviously as, as you know, and this is a subject of debate between, uh, you and Professor teach out uh, that clause was itself the subject of debate. And, that seems to me to answer the play in the joints question. And I would also go back to, and I don't know that we have a full amount of time to sort of go down the rabbit trail between you and Professor Teachout on the importance of the change in the wording in the emoluments clause between the Articles of Confederation in the Constitution, I, I would just, I would flag, I think this is fair to say that there is debate over the meaning of, of the, the change in that language, I don't, I don't t necessarily, uh, read it the same way you do as necessarily moving from excluding state officials to, uh,

0:46:15 Seth: Not don, I I think I think it's fair to say that no court has opined on this precise language and,

0:46:23 Thomas: All right. Well, we're going to pause there for part one of the interview with Seth Barrett Tillman. Still lots of interesting stuff to cover. Uh, I, I for one, I'm looking forward Andrew to after hearing the completion in part two on Friday, uh maybe discussing a little bit of your thoughts on the entirety. We'll pause on that for now, but let's just say lots more interesting stuff to come and we'll move forward with part two on Friday. All right, let's get on to the rest of our show here.

0:46:48 Andrew: Yeah. Yeah.

0:46:51 Thomas: For our first listener question of the day, William Stemler asks, is a term limited former president prohibited from taking an office in the cabinet that would be in the line of presidential succession? Now, I think think, because in my doing research for my cabinet episodes of Serious Inquiries Only, I think I might know the answer to this. Could I take a stab, and then you can correct me and say I've totally got it wrong.

0:47:07 Andrew: Yeah.

0:47:17 Andrew: Please. Do.

0:47:18 Thomas: I think they can hold the position, but they're just skipped over officially in the succession, in the line of succession. Is that right?

0:47:18 Andrew: Exactly.

0:47:27 Andrew: Right, and and one of the ways in which we know this is that we, um, have had, in particular, we have had secretaries of state who are non U.S. citizens. Right. So Madeleine Albright, Henry Kissinger, those sort of immediately come to mind. So could Donald Trump appoint George W. Bush to his cabinet? Yes, he could. If a Democrat wins in 2020 and wants to make Barack Obama secretary of state, they could do that as well. And the line of succession would just skip over that person. So And

0:47:56 Thomas: Yeah, and the Reason I saw that was because I was looking, I was referencing the line of succession, and currently we have as secretary of the interior Sally Jewel, I guess, I'm not sure how that's pronounced, Jewel, I don't know either way. Uh, she is not a natural born citizen, so she would be skipped over and it would go straight to secretary of agriculture Tom Vilsack. So there you go. Oh,

0:48:21 Andrew: What I what I assume happens, but I have never checked that that is an interesting question that I will I will ask our listeners, if any of them know, is, you know, there is the process during the State of the Union of keeping back one member of the cabinet. Right. And having that sort of designated survivor.

0:48:38 Thomas: Yeah, So, They Tell Sally, like, I know you Can go, you're fine, it Doesn't matter. Yeah, I'll

0:48:43 Andrew: Yeah. Yeah. Do they, do they skip over ineligible members of the cabinet when choosing that, that, that designated survivor? I assume they do. But, but I have to say I have never, you know, that's one of those bits of trivia that comes up when, you know, your hosts are trying to fill time while the president is walking down the aisle for the State of the Union address. So, um, I don't know the answer to that.

0:49:08 Thomas: Just go ahead and chalk me up for some bar exam credit for that question And we'll move on. Oh, right, now it's time to thank our new patrons for this week over on patreon.com/law. Once again, enjoying a lot off of movies, the, uh, the extra Andrew content, from time to time, like a newsletter, early answer to Thomas, takes the ball, all kinds of perks, check it out. Our new patrons for this week, uh, Benjamin Carlisle, I also want to thank John Bodley with a pledge edit to 10, thank you so much, John Bodley, uh, Joseph Cabal, Peter Robert, uh, Lin Ryan Blakeslee, Chris Michael, Phil Moore, Tim Piper and Mark, thank you guys so much for your pledges, absolutely

0:49:12 Andrew: Well, And thank you as well to Brandon Price, to Terry Schmidt, Karen vs Doom, Tooth Love That, Dave Lovely, Lincoln Davidson, Josh Godby and Scott Quinn, thanks to all of you for supporting the show. Good,

0:50:10 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:50:16 Thomas: All It is time, everybody, to find out. No, now am I currently three of five, is that where I sit? Okay. I

0:50:23 Andrew: You Are So this Is a crucial question, right?

0:50:25 Thomas: Yeah. Yeah. Well, I mean, they've all been incredibly crucial, um, I could go to four, I could do it, really, like, close to passing, from, from close to passing, two, definitely passing with a strong 66.66%, which is what I want to do. Yeah. Okay. Let's find out answer to T T T B E six.

0:50:26 Andrew: Yeah. Yeah. Okay, and this question was involving cohabitating individuals who decided to get married. The man asked the woman for a prenuptial. She agrees, demands a written document, but they never sign anything. Three months later, the husband divorces, leaves her for it says another woman. I'm going to insert a younger woman. That's we're going to give some give some color to this question here.

0:51:13 Thomas: Think it would be funny if it was like an older woman, like leaves for like a 75 Year old. I Don't, just randomly, I Think that would add Even More Color To The To The test

0:51:17 Andrew: Yeah. Yeah. Kind of a Harold and Maude sort of situation. Yeah. Yeah. So, OK, so Harold and Maude here When Maude does not move out, Harold sues asking for the enforcement of the oral prenuptial agreement. Will the court likely enforce the husband's claim? And as per usual, we had two yes answers and two no answers. And Thomas, you picked no, because a contract in consideration of marriage must be in writing and the prenup was not legal as long as it remained oral. And are you ready for the answer? Answer You are correct. Uh,

0:51:27 Thomas: I Suppose so. Oh, Yes, okay, I'm so happy, I was worried I was pretty sure it was going to be a no answer, but I didn't, what was the other no answer that I didn t get Stuck

0:51:59 Andrew: The Other No answer d Was because the husband did not live up to his promise to put the agreement in writing, and therefore he was guilty of Fraud, which

0:52:05 Thomas: Oh The Fraud Part, yeah, that that was just Obvious. One thing I've learned from you, and I did actually, I applied some knowledge, and you can tell me if I misapplied it, but when it said guilty of fraud, that made me think, well, there's no intent there. Like, don't you need intent for fraud? Isn't that a higher level of specificity?

0:52:12 Andrew: Yeah. Yeah.

0:52:28 Andrew: You need, well, you need a higher level of, of specificity, so, um, So Yes. Good. Good. Good application.

0:52:34 Thomas: Because I thought, well he would just say, well I just forgot. Like there's no way that's fraud, you know, if he just forgot to, you Know, it's not like he was trying to, okay, so I did kind of apply my legal knowledge there.

0:52:40 Andrew: There you go. Yep. No, I think you did that exactly right. That answer becomes weird with the addition of, and therefore was guilty of fraud, because it would certainly be a much more difficult choice to say that he did not live up to his promise to put the agreement in writing. And in fact, the law were less clear, you could certainly say that there was no actual contract form. We've talked about the principles of contract formation require that I make an offer, that you accept every term in my offer without variance, and that then there be consideration, something of value exchange between the parties. So, you know, if I say to you, "Hey, Thomas, I will buy your house for $100,000," and you come back and say, "That's great, but you have to give me a week to move my stuff out." And I never say, "Okay, right," we don't have a contract, right? Like you've made a counteroffer.

0:52:51 Thomas: Yeah. Okay,

0:53:39 Andrew: Even if the counteroffer is kind of de minimis, it would be a real challenge to enforce that contract because you would say, hey, look, like there was an offer made on these terms. The terms were not accepted. There was no acceptance. Therefore, there's no contract. So, yeah,

0:53:54 Thomas: So this Is interesting. Let me ask you, which was more important in this case? Was it that she demanded it be in writing, or was it just that all these things in general need to be in right? Okay.

0:54:04 Andrew: No, it's that what this is testing is it's testing your knowledge of marriage contracts and prenuptial agreements are required to be in writing. So, yeah, right.

0:54:12 Thomas: So Didn't matter That she demanded it or not, that Was Kind of a Little bit of a red herring. I'm

0:54:15 Andrew: Right. And that's yeah, that's and that's another good point. I mean, you're seeing this. Remember, when you take the bar and you will, you have these these 200 questions in have 200 questions which you will take in a six hour period, which is 360 minutes. So, you know, each question has kind of a long paragraph or two as a setup. So it's also a test of speed reading, right?

0:54:25 Thomas: Doing It Right now, I don't know What you're talking about Gotta skim it a Little, but You gotta, yeah I

0:54:45 Andrew: And so one of the things they do to make it difficult is they will put in or irrelevant facts. And, you know, in I mean, the bar exam is not a good test of being a lawyer, but in fairness to the bar examiners. Right. That is it's a good way. It's a good technique in the sense that as a lawyer. Right. People will come into my office all the time. And the first thing I do is set them down and have them tell me their story. And they're going to tell me everything. Right. And it's up to me to figure out, you know, what's what are the parts that are relevant and what are the parts that are not relevant. So so I think it's fair, but it it does make it a tough reading test. So but but you passed on question number six. You got it right.

0:55:28 Thomas: Mean Tough for Non Top five and Harvard Law lawyers like me I mean, yeah, it's certain I could see, I didn't see how, how someone not, you know, named Mitch McDeer or Thomas Smith would have, you know, might have a problem with that question. But for me, it was clear from the beginning, easy as could be. I'm going to start, what percentage am I allowed to start getting cocky about it? I don't know if four out of six is quite there.

0:55:31 Andrew: Right. Exactly. Yep. Yep. Well, five out of seven will put you, I think that's 71%, right? Like that is getting dangerously close to the, you know, gentlemen's C minus territory. So, uh, you know, that will put you in, uh, in, in such esteemed company as, uh, as, uh, Dan Quayle and, uh, and George W. Bush in business school. So, um, uh, I can't wait. I can't wait for you to hit.

0:55:53 Thomas: I, I'm, man, I love this segment. I love it so much when I get it right. I hate it so much when I get it wrong. No, either way, I, I love it. I'm, there were a number of little things to that question that I was worried about, because I, I mean, I don't know if it's worth going down this avenue now, but there are a lot of things that are required to be in writing, but there aren't a lot of things, or at least there are some things that aren't, and this is something that I do remember, from, because the only legal course I ever took was business law, so it is kind of relevant to that, like deals that you make and stuff like that, but is there any rhyme or reason to that? Is it kind of, you just gotta kind of remember, like, oh, if it's a land deal, then it can or can't, or how do you, how do you go about remembering all that as a lawyer? No,

0:56:35 Andrew: Yeah uh it's one of those things that you just sort of have to brute force, uh, memorize. Um, it's easier to know the exceptions, uh, than it is to, you know, to sort, sort of memorize all of the scenarios.

0:57:07 Thomas: Just, I'm trying to milk information for a future bar question out of you, so next time I get, yeah, interesting

0:57:08 Andrew: But yeah, no, and I am happy to give it, but I just don't think there's a good one here that I can give you as sort of a guideline. I will say this, that I don't know whether this is going to come up as a bar question, but I think you've internalized the important principle, which is to say a lot of non-lawyers kind of have the belief of, Well, this wasn't signed, so nothing happens. Right. And and there are a tremendous number of even high end oral contracts which courts are very happy to enforce. That I see all the time is, you know, you have an agreement between two companies that they agree in principle on a joint venture agreement or, you know, some other collaboration. And while they're hammering out the details, you know, everybody kind of agrees, okay, you know, we're all in agreement on this.

0:58:05 Andrew: Then while you're hammering out the details and the lawyers are submitting submitting drafts back and forth, start working together, right? Because there's a time sensitivity. And in those cases, sometimes things go wrong. And sometimes there's a lawsuit that results. And so it is not, about to say it's not uncommon. I think I'll stick with that language. It's not common to see multi-million dollar civil lawsuits over unsigned instruments, But it's not uncommon, right? I've litigated those cases. And so I think you're looking for a higher order principle and give yourself some credit for knowing something that not a lot of, in my experience, not a lot of non-lawyers know, which is the fact that it's signed or not signed isn't magic in a lot of cases. In some cases, it is a requirement. And prenuptials is an area where I think that, you know, as you start to think about it, you can imagine the reasons why we would want to have a concrete requirement.

0:58:35 Thomas: Sure that's what I started to say yeah in my answer, and I wonder if I was right, just that this is a really contentious thing, it's the kind of thing where I can imagine a lot of, you know, revisionist history, and like a lot of motivation, so I don't know, it just seems like an ugly thing that the, the law would have wanted to say, let's just get everything in writing here, all

0:59:05 Andrew: Yeah. Yeah. It, when you have, So the rule is, when you have a written contract, and specifically when you have a written contract that contains a complete integration clause, right, that says this writing represents the agreement in full of the parties, and no other writing can, or, or oral representation can be used to vary its terms, right, then that's it, right. Like that enables you to go forward and say, hey, look, I've got a contract. It says you give me 100 apples and I give you $100. And you could have, you know, a letter from me to you saying, no, no, no, it's fine, only ship me the 50, you know, only ship me 50 apples this month or whatever. But that's not going to be permitted to vary the terms of the contract.

1:00:14 Andrew: And so writings give you predictability. In the absence of a writing, then what the court has to do is try and ascertain what the intent of the parties was. And that's when you look to what's called parole, P-A-R-O-L, evidence, which is extrinsic evidence about the signing of a contract. In the business realm, it's pretty easy to dig up this kind of stuff, right? Like you have emails, you have letters, you have, right? Right. But now think about when you're talking about, you know, husband and wife, not there's not likely to be the same level of of extrinsic evidence. And so, you know, you can see as a practical matter saying, yeah, this is going to be impossible. Every case is just going to be who does the court believe testimonially.

1:01:00 Andrew: Um, and so, you know, to, to avoid that situation, presumably, I mean, I don't know why, but, uh, but I would surmise that being in that spot of having to sort of weigh between the testimony of two people, um, for over whom the court has no intrinsic reason to, to believe one or the other more highly. Right. So, yep.

1:01:21 Thomas: Right, yeah, makes sense. Well, uh, I'm very excited to be, uh, four out of six, boy, I'm, I'm on my way to 198 out of 200, I would say I'm streaking, I'm, I'm definitely, that's the trend on my answer, so I'm going to say that's a safe prediction, maybe 190 to 198 range, something like that. Thanks for that. And, oh, Andrew, who is our lucky winner for this week?

1:01:37 Andrew: Yeah. Yeah. That's, that's solid. Colin yeah Yeah, this week's winner is Cindy Lynch, that's at C-I-N-D-I, the trainer, all one word on Twitter, who not only got the correct answer, C, as did most people, but justified her answer by quoting creative genius and 50% more influential than any other human being, Kanye West. And since I know Thomas wants to hear me quote Kanye West, I will do that now. And you ain't no punk, holla, we want prenup. We want prenup. Yeah, it's something that you need to have because when she leave your ass, she gone with half. So for making me do that on the show and the creativity and getting the answer correct. Shout out to Cindy, the trainer. Congratulations.

1:02:28 Thomas: Right, well, that's all we have for you today. Uh, anything else from you, Andrew? Are we good to call it a show? Right, well, stop breaking the law, all

1:02:35 Andrew: To go all

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