OA40: Who is Neil Gorsuch, and How Scared Should You Be?

Transcript

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

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode number 40. I'm your host, Thomas Smith. Over there is your host Andrew Torrez. How are you doing today, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:28 Thomas: Doing great. We've got, as always, a ton of useful information coming at you in today's episode. I'd like to start with our first listener question.

0:01:39 Clip: He who questions training, only trains himself at asking questions. What?

0:01:46 Thomas: David Derman asks, can Trump or any president have a civil suit brought against them while president? Is it possible? I would presume typically not, but it's easy to imagine Trump taking grounds for civil suit to an absurd level. If he said on national television that he knows for a fact that Thomas Smith, with his address included, is a murderer and a cannibal or some other set of circumstances, would he still be immune? Now, this is weird because just last episode, we already talked about a civil suit that was brought against Trump. So it seems like it's definitely possible, but I don't know if he means, will it survive that first round where the judge might just throw it out because of standing or some other thing? So my answer would be, yeah, possible.

0:02:32 Thomas: But I would like to also add in, could he just pardon himself for whatever it is? So what do you think there, Andrew?

0:02:41 Andrew: Yeah. So David also linked a Washington Post article that we'll link in the show notes. And I liked the question because it was an opportunity to explain the difference between immunity from suit and immunity from suite while in the performance of your duties. Okay. So let's answer the question first. Thomas, you're absolutely correct. The binding precedent on this actually is Clinton versus Jones, which was the Paula Jones sexual harassment lawsuit that was brought against Bill Clinton while he was president. It is 520 US 681. And it says that the sitting president does not have blanket immunity from civil lawsuits that are brought against the president, even, you know, while the president is in office. Okay.

0:03:33 Thomas: Hmm.

0:03:33 Andrew: So the answer, you can sue Donald Trump. Why did this come up as a question? Well, the Washington Post was talking about the fact that when you are in the government, when you were sitting as president, you have immunity from civil lawsuits, charging that you have committed a tort while in the furtherance of your official duties, right? So what does that mean? This is how I learned it in law school, for example, if a senator needs to, you know, gets the little ring on his cell phone, wasn't described as a cell phone when I was in law school, it was described as a pigeon with a note attached to it, but, and uh, and and is six blocks away from the Capitol and hops in a car and drives over a pedestrian while attempting to get to the uh, the Capitol building to cast his vote, the, the law seems pretty clear that you don't get to bring a lawsuit against the senator for that, the the more, the, the case for when we did, you know, we discussed that as hypothetical, I, you know, go into the arguments pro and con nothing

0:04:39 Thomas: Interesting.

0:04:48 Thomas: Well, how is it, what is the remedy for that then is it just nothing wow but

0:04:51 Andrew: Right yeah no it's immunity right like when when you are immune from suit, you may not be sued. And if it leaves, it leaves the plaintiff.

0:04:57 Thomas: I mean there's no like congressional remedy there's no disciplinary

0:05:01 Andrew: No, no, I've certainly that that there's broad discretion for, you know, the Senate Ethics Committee to reprimand, you know, Senator Ledfoot for running over somebody. But no, like it, even though, you know, it would cause grievous harm to someone, and they would be left with no one to sue, you know to pay for their medical bills and pain and suffering and that sort of thing. Right. That's what immunity means. Like when you're immune from suit, it means that we think that it is more important to not hold the defendant responsible than It is for the plaintiff to be compensated.

And the classic example of that. So look, I deliberately started with the running somebody over because I'm tugging at your heartstrings and giving you the worst case scenario. The reason for the doctrine of political immunity here is you would not want somebody to sue a sitting senator for libel for what they've said on the floor of the Congress, right? And you could imagine, right, like take for example Elizabeth Warren calling out by name the heads of various major banks, right? Like if you could bring a lawsuit at all – and look, like could you file – yeah, like you can file the lawsuit.

0:05:11 Thomas: Wow yeah

0:06:21 Andrew: But not only will you be able to move to dismiss, you'll be able move for Rule 11 sanctions, right. Like any lawyer who signs their name to that will – can and should and likely will be fined by the court for signing on to a lawsuit like that. So we want that because we want debate on the floor of Congress to Proceed without – we don't want somebody to say like, well, gosh, I'd really like to call the head of Goldman Sachs a liar. But if I call him a liar, like is he a private person? Am I liable? So I'm going to say I strongly disagree. No, we want unfettered debate. So therefore, we have given senators immunity from what they say on the floor of the Senate. And similarly, the president in performing his official duties has immunity from civil liability for actions taken in office that are in furtherance of the duties of his office. But as the Jones versus Clinton – sorry, as Clinton versus Jones at the Supreme Court level, as that lawsuit shows, things that are not within the scope and duty of your office, you can be sued for, right?

0:06:41 Thomas: So

0:07:34 Andrew: So you could be sued for sexual harassment. You could be served with a lawsuit. And so, yeah, if President Trump acting on his own behalf, admittedly, it's going to be difficult to differentiate that from acting in his official capacity as president. But if he acting outside his official duties as the president commits a civil wrong, you can sue the president. So if

0:07:59 Thomas: In the example yes because if he just you know slanders me or whatever for no reason you're

0:08:04 Andrew: He slanders you for – well, it wouldn't be for no reason. It would be because of the hard-hitting analysis in SIO 2 and 3 as well as your continued lefty presence on this show.

0:08:07 Thomas: Right it's probably for pretty good reason yeah oh I thought you're saying I was actually a cannibal I thought your you're gonna let that cat out of the bag That too. Yeah.

0:08:17 Andrew: Oh, no. Well, that – yeah, well, again, truth is an absolute defense. No. No, like so in a situation where the president clearly commits a civil wrong, he he may be sued. And if he if he tortiously harms any of our listeners, this and this one piece of legal advice I will allow you to take from this. But please, please do sue the president if he commits a tort against you personally outside the scope of his office. And let me know.

0:08:33 Thomas: Yeah.

0:08:50 Andrew: Send me an email about it.

0:08:49 Thomas: Well, in an opening arguments first, do take that bit of legal advice from a podcast. But only that.

0:08:54 Andrew: But yeah, this still does not create – it still does not create an attorney-client relationship. I am not your lawyer until you sign that piece of paper and I disclose how much it's going to cost you. That's the answer to that question and I thought it was good to sort of explore the boundaries of civil immunity.

0:08:59 Thomas: Sure.

0:09:12 Thomas: Yeah, I didn't know anything about that civil immunity. I feel pretty foolish for not really knowing that. I can't believe you can run over a guy and just be like, yeah, I was on the way to work. And then you're fine. Why doesn't that happen more? I guess re-election could be a problem.

0:09:26 Andrew: Yeah, I think that dovetails nicely with our Non-justiciability doctrine that we discussed in the last episode, which is to say one of the thoughts of the founding fathers was very clearly that for things for which there were obvious electoral consequences, you don't have to add judicial consequences on top of it, right? That the notion that you would be run out of office is at least as sufficient a deterrent as the notion that you would be held civilly or criminally liable.

0:09:29 Thomas: I Don't know. I still think it's insane that that would apply to running someone over on the way to work. I get it with a lot of other stuff, but I feel like that's more a question of like, how careful are you in your everyday life when you're driving somewhere? That has nothing to do with like a senator. Like, oh, he or she shouldn't be re-elected because, you know, he runs people over. To me, that seems like a weird remedy.

0:10:20 Andrew: Well and again but again Let me be, let me be clear about the hypothetical, right? Because there that's not a slam dunk case that, what makes the facts on that hypothetical turn in favor of civil immunity is the notion that, you know, you've got your eight minutes away and you have five minutes to report for the vote, right? So it is, in other words, traveling at an excessive rate of speed and traveling recklessly is required to get you there in order to complete your official duty, right? So the key for civil immunity for elected officials is it has to be done in furtherance of your official duties. So I give the car example we talked about in law school as the car sample as as sort of the farthest contours of what counts as in the furtherance of your official duties. Right. So I don't mean to say, you know, that there's a Supreme Court case in which Senator Brown ran over somebody and then was, you don't know, there isn't. If there were, I'd be citing that instead of the Clinton v. Jones precedent.

0:10:31 Thomas: Oh, okay. Okay. Yeah,

0:11:32 Andrew: But it is clear that the core of civil immunity for elected officials, particularly for the president, extends to the things you do while doing your job, right? Right. So, and look, like with our president, you know, I mean, I don't know why I'm constructing sort of far off hypotheticals. Right. Like libeling people while speaking as president on a political issue is something that it doesn't strike me as implausible that our president may do over the next four years. Right. Like so, you know, and that, and that would clearly fall. Like if you say I need to mobilize federal troops to go in, as he did, as Donald Trump did last week, I need a mobilize federal groups to go into Chicago because there's so many murders.

0:11:32 Thomas: Yeah,

0:12:20 Andrew: Well, he could have called out individuals by name. He could have said, yeah, because Rahm Emanuel basically said, you know, it's the purge in Chicago. And I mean, it wouldn't be hard to imagine him libeling Rahm Emmanuel and then being completely immune from any civil consequences of that libel because it was undertaken in connection with his official duties as the president. So maybe I shouldn't have led with the car. I should lead with something that I think is very, very likely, which is the president can libel you in a news conference. Yeah, probably will. Cool. All

0:12:55 Thomas: Yeah. Will probably happen. All right, time for our main segment for the day. And this, a lot of people asking about this. This is something in the news, could be way in the News by the time this airs. We'll see. But Donald Trump has a Supreme Court vacancy to fill. And the reason he does is because of cheaters who didn't let the last president fill the Supreme Court vacuum. So just get I'm just getting my personal opinion out there first. But because the result of this cheating, and just just bending the rules to whatever you want, Trump's got a spot to fill and it looks like his leading candidate, as of the time recording this, is someone named Neil Gorsuch. Is that how you would pronounce that?

0:13:51 Thomas: Gorsuch. Okay, it's exactly how it's spelled. Neil Gorsuch. Andrew, what do you have to say about this? Is this going to be an amazing candidate for the Supreme Court, a justice so brilliant we will never forget all of his rulings and just how brilliant they were? They were. Is that, or, or am I off on that?

0:13:50 Andrew: Yeah. Of course such. Yeah. Look, Donald Trump has said and has said since the Republican primaries and consistently throughout the election that he wanted to fill Scalia's seat with the next Scalia. And he has found the next Scalia in Neil Gorsuch. It is, yeah, he

0:14:26 Thomas: That's the best backhanded compliment ever. This is one thing Trump promised that, yes, he's actually delivering on.

0:14:33 Andrew: Is going to deliver on it. So let's kind of take that apart a little bit. He is 49. He is a graduate from my alma mater, Harvard Law School, with honors. He is currently a an appellate judge on the 10th Circuit Court of Appeals. He is considered a feeder judge. He clerked for the Supreme Court and his clerks have gone on to become Supreme Court clerks. And all of that is to say that he is of unimpeachable academic credentials. He's very, very, very, very smart in the same way that Scalia was very, very, very, very smart.

0:15:10 Thomas: Allegedly. We still argue about that, but I'll, all right, I'll take your word for it.

0:15:13 Andrew: In addition, I will link this in the show notes. In 2005, before he was appointed to the federal bench, he was Neil Gorsuch was in private practice and he penned an op-ed for the National Review that made fun of stupid liberals, called Liberals' Lawsuits." And so it is liberals and lawsuits, suits but he used the little apostrophe n apostrophe construction because I don't know that was what all the cool kids were doing in 2005 or something I don' t know yeah

0:15:32 Thomas: What, what was that? Huh? Yeah, I don't even understand that. Is dat what he thinks, like, dumb people do or something? Thing.

0:15:47 Andrew: It was it, was it's, it's, I'm gonna link it because it is amazingly condescending, and you cannot come away from that without thinking that here is somebody who has a profound visceral political hatred for people on the left now

0:16:03 Thomas: Okay, I'm going to ask you something. I apologize if this is out of time for you, like not when you're planning to answer this. But one thing I've seen in Serious Inquiries Elderly, my other podcast, studying these appointees and all that, is it's hard to keep in mind just what the precedent actually is. Especially for someone like me, I, you know, I'm newer to all this, to really paying attention to the inner workings of our politics. I'm not not going to make an age joke, but you know, I haven't been around as long as certain co-hosts of the show, for example, just off the top of my head. But what, how, when it comes to a justice for Supreme Court, because when I think Trump, and you said right there that he has a disdain for liberals, I thought, yeah, well, whatever, it's Trump. Of course, he'll just appoint someone who has a distain for liberals. That's totally normal. But I have a feeling that unlike all his completely awful, unqualified cabinet members who just get in, like there's nothing really you can do.

0:16:09 Andrew: I

0:17:01 Thomas: This could be a different story. How unprecedented is it for someone to get in who has an obvious bias here? Like, is that normal?

0:17:10 Andrew: I, look, this piece will come up during the Gorsuch confirmation hearings because it shows up on page one when you Google his name. Well, I think I had to Google Gorsuch, I searched for some other terms, but, look, like if I found, and I found it right away, and as bad as our, you know, congressional staffers and journalists are, like, it will be found. I will tweet it, if no, if no one finds it, I will aggressively tweet it at every member of the Judiciary Committee. I've already started to do that, right? There was a Time article that said, the three things you need to know about Neil Gorsuch.

And I tweeted out one. He's penned an article for National Review making fun of liberals back in 2005. 2-C-1, 3-C1. And I'm going to continue to do stuff like that. The answer is we have a mixed history, right. So certainly folks who have held political office have been appointed to the Supreme Court. There is some notion that when you are seeking a Supreme Court justice, you're trying to find someone who is of a temperament that is impartial and equal to everyone. One of my ongoing criticisms of Clarence Thomas is that he spends virtually all of his free time speaking to conservative action groups like the Federalist Society on various law school campuses.

0:17:40 Thomas: Ooh, good idea.

0:18:29 Andrew: And so the hand-wringing and hair-pulling that went on when Ruth Bader Ginsburg made an offhanded comment that, boy, Trump seems kind of like he's not that bright or whatever. I forget exactly what she said, but the fainting spells that that caused in right-wing circles when you have a dedicated, ideologically conservative activist on the Supreme Court right now was just a level of hypocrisy that I found. Just mind-blowing. So look, I don't think this is disqualifying, but I think that it is instructive, and I think what you should do, what I would do if I were the Democratic chair of the Senate Judiciary Committee, is put that together with his other rulings and make the case that this is somebody who wants to use the Supreme Court to advance conservative political ends, and that we We have every reason to believe that that's what he will do.

0:18:42 Thomas: Yeah.

0:19:27 Andrew: So the fact that he wrote a couple of page, you know, op-ed for the National Review, making fun of whiny liberals, like, you Know, that standing alone is not a disqualifier, but I think that helps us interpret and understand what he's actually done since being on the bench, which I will tell you, I find frightening and terrifying. So think about some prominent Supreme Court cases that have come up through the Tenth Circuit.

0:19:57 Thomas: Yeah, let me just, yeah, brainstorm those real quick. Uh-huh but

0:19:59 Andrew: Well, how about Hobby Lobby Stores versus Sebelius? How about Little Sisters of the Poor versus Burwell, which were both of those cases involved corporate entities alleging that the ACA violated their deeply held religious beliefs and seeking not just exemptions, but to block the ACA's mandate regarding contraception. And Gorsuch participated in those cases. He has consistently on religious issues, he has taken what I would call the accommodationist position. So for example, there were cases brought by one brought by American Atheists.

It was American Atheists versus Davenport in 2010. The other one was called Green versus Haskell County Board of Commissioners in 2009 in which um groups sued in connection with public displays of religion, and those uh cases, uh, Gorsuch actually was in the minority that the the uh American Atheist won in their case, and Gorsuch wrote a dissent in which he says that that the, you know, using originalism, that there was not meant to be, that the founding fathers would not have thought that, you know, things like public displays of religion constitute an impermissible endorsement of religion where none was intended. And so he has opined at significant length in his opinions about the need to promote healthy religious participation in public life. I could go on. There are another couple of cases,

0:21:41 Andrew: But I will tell you that it is the sort of classic conservative judicial activism on –

0:21:47 Thomas: What does this all amount to because all I'm hearing is yeah sure reasonable person Andrew Torrez will say, yeah, this guy sucks, let's not have him be, but what does that amount to? Anything? I mean, he's just gonna end up getting confirmed, right? Unless, and are you making the case, should the Democrats, uh, here I'll ask a couple different points here on this one. Should should the Democrats, and this is a separate question, but I'm curious about your opinion while we're at it, should the Democrats just kind of filibuster whoever, just like any, virtually any, short of an actual moderate good candidate? Should they pretty much filibbuster whoever he appoints? Because, you know, they did the same thing to us. Or, and then aside from that, is this person particularly filibusturable? And is this somebody who we just should not, it's too, he's too extreme.

0:21:54 Andrew: I

0:22:43 Thomas: We should just try to do anything we can to prevent him from being put up. Or is it going to be like Trump's cabinet where

0:22:50 Andrew: Want to answer both those questions. As a predicate, I want to say part of what I want to do here is calibrate our alarm correctly, right? So if the question is how potentially dangerous is Gorsuch as a Supreme Court appointee? And to me, the answer is potentially very, very dangerous, right. So, you know, the worst case scenario would be if some of the, you now, Alabama Supreme Court Supreme Court justices and the other like the state Supreme Court justices who were on Trump's list, who who lacked the academic criteria to really be on the court. You know, if you if you want to put a danger rating, if there are four, right, they're the worst on a scale of one to four, then to me, Gorsuch is a three, right?

He's, he's a Scalia. There is an area where he's even worse than Scalia. He's 49. He he's really, really smart. So he's likely to be on the court for three decades. But but he's really, really smart, so we see how dangerous that can be. At least it means that there is some potential for evaluating cases that don't neatly fall on the right-left spectrum. But I also think we have pretty good evidence of where his political leanings are, and the fact that it was why I thought it was worth going through the religious cases. He said, I want to use the court as a vehicle to help encourage religious people to participate.

So if you believe in the separation of church and state, that's a pretty big slap. A threat level two might be somebody like a John Roberts, right? Like somebody who is very, very conservative, who has a conservative judicial philosophy, but seems to be either apolitical or willing to straddle political consequences and so therefore can be reached, right.

0:23:12 Thomas: Yeah. Jeez.

0:24:45 Andrew: Right. Like, so, for example, it was a bit of a surprise to some people to see Roberts uphold the individual mandate in the Obamacare cases. Right. And that was a non-doctrinaire party line decision. And what I worry about is that in the discussions over Gorsuch in his hearings, that the fact that he is a Harvard grad will be used to blur the line between threat level two and threat level three, right?

0:25:16 Thomas: Yeah.

0:25:16 Andrew: Right. So and just remember, like Ted Cruz is a Harvard law grad. Like, you know.

0:25:19 Thomas: Yeah, anyone can go to Harvard and graduate from it, I think is what you're saying. Is that right? Yeah, it's so easy.

0:25:22 Andrew: Yeah. Yeah, it is right now. Look, like it's it's. It is it is good that he is smart, but the fact that he istmart does not absolve him of the notion of being incredibly partisan and committed to using the court to promote conservative judicial ads. And so your two questions were, should you filibuster? I guess the way I would answer that question is, do you think if we could go back in time and convince Joe Biden to filibbuster Antonin Scalia the way that the Democrats organized and forced Ronald Reagan to withdraw the nomination of Robert Bork? I would make a very, very strong case for that, right? Like, I think the left has really kind of lost the public relations debate over the Bork nomination hearings.

0:26:15 Andrew: Bork was sort of the original Scalia, even more of a hardliner. He was nominated by Ronald Reagan. The right has sort of taken up his name as to Bork somebody to, you know, kind of impermissibly criticize a Supreme Court nominee on the basis of things that they've written. But I think what Biden did there – to me, that's one of the most valuable things he's done for the republic was to organize and to say, hey, this person – and Robert Bork was very, very smart too, right? Like this is not – there was not a qualifications problem. There was at the end of the day, thisperson's view of interpreting the constitution is so far outside the mainstream that they don't belong in the Supreme Court.

0:26:28 Thomas: That's what the kids are calling it these days, huh?

0:27:04 Andrew: Legal scholars right now who are Derrida deconstructionists, right? Who, who believe that like the law has no fixed meaning and who take a like radical postmodern view of the law. Okay.

And I would not want somebody like that, even if I thought they were going to vote the right way in all of the important cases to sit on the Supreme Court, because that ideological method of jurisprudence is inconsistent with the methodology that that is necessary to interpret the constitution to set, you know, that the the mainstream view of what the constitution means, that that the Supreme Court requires. Like, the Supreme Cort does not need to be, you know, ideologically balanced.

Like, oh, well, you know, we don't, we don't have any nuts on the, like, no. Like, you can say you're disqualified to serve on the Supreme, like, if you're a hardcore Marxist, right? You could be a brilliant Marxist, but you would say, well, look, if you believe in the dialectic overthrowing the state, maybe you shouldn't sit on the US Supreme Court. And I think that the radical originalist philosophy is as incompatible with the Supreme Court as Marxism or Derrida-level deconstructionism. Now, even the most radical Democrats in the Senate seem not to share that view. Samuel

0:28:28 Thomas: Jeez.

0:28:29 Andrew: Alito, for example, is a doctrinaire Scalia originalist. I forget the margin by which he was confirmed, but there was no public outrage to Alito. I suspect that that will be the case here. It would require you to start making the public case right now that if you believe in using the court as a vehicle for conservative judicial activism, then we're going to oppose that. I don't know what – like that's not – you can get that out in 15 seconds. I don't know why Democrats aren't taking that line because we've got the ground primed already for people thinking, oh, judicial activism is bad.

0:28:29 Thomas: Oh,

0:29:22 Andrew: But for whatever reason, they haven't wanted to take that up. I will say what I find the most interesting about Gorsuch and the most potentially dangerous relates to the doctrine of Chevron defense that we talked about last week. With respect to the FLSA. So he wrote a separate concurrence in a case called Gutierrez-Brizuela versus Lynch in which he strongly criticized the doctrine of Chevron Deference. And so not to put sort of too fine a point on it, but when you talk about – And so what that does is that reduces the power of executive agencies to promulgate rules to implement legislation. And by doing that, it is yet another vehicle to strengthen the power Of the courts, right? Like, so what he's saying is, I think judges decisions about what constitute findings of laws that defer to administrative agencies should take precedent over the administrative agencies findings themselves.

0:29:34 Thomas: Yeah.

0:30:20 Andrew: So if you were to bring the FLSA case before Gorsuch, like you might have a good chance of winning, right? He would say, yeah, I don't really care what the Department of Labor says about the regulations that the Department of Labor is authorized to promulgate. What matters is what the founding fathers would have thought about that, which means what I think the founding fathers would've thought about, which is to say it is a mass—and I don't understand. I haven't seen anybody talk about this. In my view, it is a massive power grab for the judiciary and for conservatives on the judiciary. And in that respect, am really, really concerned about a Supreme Court Justice Gorsuch. I think that that would truly, you know, aggregate power in the judiciary in a way that upsets our balance of powers. And Chevron defense, I mean, like, watching conservative judicial activists undermine principles that, right, I that the Chevron defense is not thought of as a particularly lefty device, right?

0:30:39 Thomas: Yeah.

0:31:24 Andrew: Like it is saying we defer to what administrative agencies do. Well, you know, during the 2000s, right, you were deferring to What Bush appointed administrative agencies were doing. But obviously that makes sense over allowing litigants to argue de novo as a matter of first impression before the courts to say, "No, no, no, judges, we want you to interpret this statute," instead of the agency that is specifically delegated by congress to interpret Yeah, and and and it just, it's one of these that it's, it's a, it's principle of functional government that I didn't expect to see eroded, you know, and that um and that I really do I really fear that so

0:31:31 Thomas: Yeah, Whose job it is.

0:32:04 Thomas: Yeah. Well, here's what I'm getting from all this to attempt to summarize. I'm getting, yes, this guy is Scalia, possibly a little worse. Yes, Democrats should really work hard to try to fight this. Also, welcome new Supreme Court Justice Neil Gorsuch. That's what I'm getting. It's definitely going to happen. Democrats aren't going to fight it enough. He's going to get through.

0:32:07 Andrew: Yeah I mean get look get get used to of that like I said, uh, like I said on Twitter, and again, do not take legal or punching advice from a podcast, but, you know, if that makes you mad, like, find the closest person who said, "Well, there's no difference between, you know, Hillary and Trump, they're both corporate democrats and punch them in the face right don't don't actually punch them in the face I'm not I'm I'm anti-punching I am on the thomas smith side that says we don't we don't even punch our nazis but uh yeah I mean this In my mind, this goes back to elections have consequences. And if you sat out, if you said, well, Michigan isn't a swing state, Wisconsin isn't a swing State, and I'm worried about Hillary Clinton's emails, this is what happens. And you can think Hillary Clinton is as corporatist as you want. She would not have picked Neil Gorsuch and elevated him to the Supreme Court.

0:32:41 Thomas: Yeah. Wow. Wow, yeah, yeah. Yeah,

0:33:20 Andrew: So hate to end a segment on a downer, but I think it is.

0:33:20 Thomas: All right. Well, I'm yeah, well, this is it's a downer. This is this is a downER that there's no avoiding that. That. Hopefully we'll be proven wrong, but I'm going to boast a little bit. I correctly predicted that all the cabinet members, that was an easy prediction, but I predicted that they would all get through and the democrats would barely even fight anybody, including, and I predicted, that Rubio would back down on Tillerson, and he did. And it's because these men are cowards.

0:33:47 Andrew: Yeah. If we have, if we have any Florida listeners who voted for Marco Rubio right into the show, uh, because I mean, here's somebody who has said openly, like, eh, I don't really like being in the Senate. I don'T really go to votes. I kind of want to be president. So, you know, that's why. And like to return that guy to the Senate, like are you kidding me?

0:33:52 Thomas: Yeah. Yeah.

0:34:06 Andrew: Like I get, I get ideological, like whatever, you But if there was a Democrat out there who was only in the Senate to burnish his credentials to run for president, it would be awfully difficult for me to pull the lever for that guy to come back. So anyway, I

0:34:05 Thomas: He's such a waste of space. Oh, man.

0:34:23 Thomas: Yeah. All right. Well, it is a downer, but we'll keep an eye on it. Maybe we'll, if he gets confirmed, if all this happens, maybe we can do an update on maybe what the effects will be on current cases or future cases or we'll see. But anyway, thanks for explaining that. Thanks for breaking that down.

0:34:40 Andrew: Recommend screaming.

0:34:42 Thomas: Yeah, yeah. Oh man. All

0:34:43 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:34:53 Thomas: Right. Well, now it's time for Closed Arguments. Oh, we haven't done this one in a while. I love this one. Closed arguments. The Trump administration has said that there is no barrier, like the anti-nepotism laws or anything like that, that there's no barrier from Jared Kushner or his sons, Trump's sons receiving security briefings or whatever, that There's no barrier to that. And this is in the closed arguments section. So that means there's either an obvious yes or an obvious no to that, so let's have it.

0:35:23 Andrew: This is very obvious. Yes, the anti-nepotism law does indeed apply to Donald Trump and to his efforts to secure employment for anybody related to him. This is 5 U.S.C. 3110. It is written in such a way that even Seth Barrett Tillman would agree with our analysis here. And I mean that specifically. So subsection A2 says public official means an officer, parenthesis, including the president or a member of Congress, end of parenthesis. So clearly applies to the president. Subsection three defines relative as any individual who's related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in law, son-in law, daughter-inlaw, brother-in Law, sister-in law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister.

0:35:28 Thomas: Uh-huh.

0:36:19 Andrew: And what is the prohibition? The prohibition is comes actually in three parts. It says a public official may not appoint a relative and may not appointment, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement to any position in the agency which he is serving over, which he exercises jurisdiction or control, and an individual may not be appointed. And then there's another provision that says an individual appointed is not entitled to pay and money may not be paid from the treasury as pay to an individual so appointed. So this is really, really clear. There's no good argument to the contrary. There is no ability for any member of the Trump family to receive an executive appointment to anything over which Trump has any control and which Trump and Trump may not advocate. Advocate.

0:36:36 Thomas: Wow.

0:37:13 Thomas: Hasn't he already done that? And not only that, isn't he, as the president, I mean, he's kind of over anything, right? Like, so what the hell's going on?

0:37:20 Andrew: Yeah. I mean, you know, look, there's not there's not a lot of jurisprudence over. So, for example, you know, something that would be outside of an executive agency if so, could you come up with a hypothetical that is a close question, right? Sure. That would be Donald Trump Jr. wants to clerk for Ruth Bader Ginsburg on the Supreme Court, right. So, you know, is that directly under the control of Yeah, probably not.

0:37:48 Thomas: I don't think that's happening. But

0:37:53 Andrew: But, you know, but those are the kind of situations where you could say, well, look, you know, Ruth Bader Ginsburg is already on the Supreme Court, you know, he doesn't exercise any control or leverage, but almost everything else, including, you know, numerous examples that are already present, sort of clearly violate the statute.

0:38:11 Thomas: I'm pretty sure that Jared Kushner has been cleared to serve in the White House. What's going on here? I mean, what's the remedy if this violates the law? How do we do it? I mean, how do we enforce it? What's Going On

0:38:24 Andrew: Yeah, so that's correct. There's... there's no private right of action here. So what you would have to do is you would have to convince the Department of Justice. You would have to either have a special prosecutor or any prosecutor could bring the case against Donald Trump. The Department of Justice issued a memo saying that they thought that this appointment did not violate the anti-nepotism law because of a separate provision in the U.S. Code, 3 U.S.C. 105. And, and this, I will tell you, this is, is, uh, I'm going to read 3 U.S.C. 105(a) to you in a minute. There is no case law that says 3 U.S.C. 105 supersedes the nepotism law.

0:38:25 Thomas: Oh

0:39:11 Andrew: Every available precedent we have suggests that the anti-nepotism law was put in, you know, you, you may recall, uh. Sort of from U.S. history, when John F. Kennedy was president, he made his brother the attorney general, and there was sort of widely considered to be a ton of nepotism going on. That's when these laws were passed, and they were designed to prevent the president from doing exactly what he is attempting to do right now. It was strenuously applied with respect to Richard Nixon. Three U.S.C. one oh five says the following: subject to the provisions of paragraph two, which, you know, talk about number of appointees. The president is authorized to appoint and fix the pay of employees in the White House office without regard to any other provision of law, regulating the employment or compensation of persons in the government service employees.

0:40:08 Andrew: So appointed shall perform such official duties as the president may prescribe. Okay. Now that says without regard to any other provision of law regarding the employment or compensation of persons in the government service, there's absolutely nothing that suggests. And 3 U.S.C. 105 very much predates the anti-nepotism law. This was passed in 1948 and the anti nepotism law was passed in 1962. So there's nothing in the legislative history. There is no case law for the proposition that 3 U.S.C. 105 supersedes the anti-nepotism law and every piece of evidence to the contrary. So yeah, this is a case where Rudy Giuliani liked to boast loud and long about How he could win a conviction on Hillary Clinton's emails back in the summer of 2016.

0:41:04 Andrew: There ought to be a prosecutor out there who is willing to bring the case because there's a reason we have this in closed arguments. Arguments, if it's Unindicted, it's unindicted, but I think you could very, very easily. I say this, I know we have prosecutors who listen to the show, if I'm wrong, write in to openarguments@gmail.com, but I don't think I'm wrong on this, I think the law is very clear, I think the arguments to the contrary are flimsy and unsupported by case law, and I would love love to hear of uh you know anything else, but until then I'm gonna call this a closed argument case.

0:41:14 Thomas: My gosh wow

0:41:47 Andrew: Closed equally

0:41:47 Thomas: So let's Add this to the long long list of nonsense of the Trump administration and, but also, let's uh continue this powerless feeling like we can't do anything about it. Gosh, this is so frustrating. Anyway, it's, but what's important though is that, you know, that both candidates were, you know. They were both bad. That's what's important. Yeah. So, gosh, I don't know what else to say on that. Closed argument and yet it's just happening and Trump's doing whatever. Because this has got to be a first for that. Because we've had things where we've talked about like, yeah, this a little gray area. You know, will this case, like last episode, will the CREW lawsuit go through? Well, well, probably not a little gray. This is the first like, nope, closed arguments.

It's wrong, but nothing we can do, apparently, if you're, unless we're a prosecutor, I don't know. All right. Well, it's that glorious time, Andrew, where we have got to thank our top, top, top patrons. And it's my pleasure to do so. And these are people who have pledged over on patreon.com/law, an amount of $5 or more per episode. And they are Roger Metcalf, Dan Irizarry, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast,

0:42:06 Andrew: Bad yeah yeah and

0:43:00 Thomas: Steve Sigman, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall, and Heath Enwright. Go ahead and take the rest there, Andrew.

0:43:17 Andrew: Thank you to Jeffrey Mainer, the Wayward Willis, Detective Matthew Maxson always on the case, Leon Hartley, Matthieu Hillier, Zena, Dave Lovely, Danny Baker at Combat Nonsense, the Net Sec Heathen, recent, uh, upping his, uh, patronage, Charone Frankel, recently upping her patronage, John Bodley, Esquire, Hunter Ash, Kylie Reiser, Jeff S, Sakashita Fukasumi, Philip Stromberg, Michael Schaefer, Michaela, Rob V. Thank you to Michael, to Frederick Alstromer, Sammy, Conrad Michaels, Zabby, and the Inciting Incident Podcast. Thanks to all of you so much. We say this every week, but we really do mean that, and we really couldn't do the show the way we're doing the show without you and without your generous support.

0:44:03 Thomas: Absolutely. I hope you've enjoyed the ad-free movies. Yeah.

0:44:03 Andrew: Oh my gosh, that's right.

0:44:12 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:44:18 Thomas: All All right. Well, now is the time where I have to apparently continue trying to keep up to expectations, the lofty, lofty expectations I have now that I'm six of eight on the bar. Andrew, let's have it. Question nine.

0:44:18 Andrew: Right.

0:44:34 Andrew: Okay. This is a real estate question. These can be tricky. Two cousins took title to real estate as joint tenants. The first cousin put up his interest in the joint tenancy as security for a $20,000 loan and signed a judgment note. It was later entered as a judgment against that cousin's interest in the real estate. The First Cousin then died a year later. Okay, so you follow the facts so far?

0:45:00 Thomas: Of, I don't, unfortunately, I don't know what it means when it says as a judgment something. I didn't really get what what that meant. But whatever, it's the bar. I guess I got to figure it out.

0:45:10 Andrew: The second cousin decided to sell the property, but the mortgagee filed an action to prevent the sale and to enforce his interest in the property. The second Cousin defended on the basis that any lien on the first cousin's interest in the Property was extinguished on the First Cousins death. Will the court enforce the lien of the mortgagee against the sale of the property by the second cousin, okay? So two cousins, first cousin takes the two cousins buy the property together. The first cousin takes his interest in the property and puts it up as security, that is pledges for collateral for a $20,000 loan, right? And the judgment note is that this is the way your mortgage works. I'm giving you a little bit of help on this.

0:45:58 Thomas: Yeah, I was just saying, well, you don't have to. I mean, don't help me.

0:46:00 Andrew: You deserve it. You deserve it and our listeners deserve it, right? So the way that that works is if you default on the payment on the note, then the collateral that you've pledged is used as a judgment to satisfy the outstanding balance that's owed.

0:46:03 Thomas: All right.

0:46:14 Thomas: That's what I was guessing, but okay. Thanks for explaining. Cheated a little bit.

0:46:19 Andrew: So it was then entered as a judgment against the first cousin's interest in the real estate a year later after the first cousin died. Okay. So now the question, you know, the second cousin wants to sell the property. The question is, will the court enforce the lien of the mortgagee against the sale of the property by the second cousin? So as usual, four answers on the board. A, yes, because the second cousins assent to the judgment lien was presumed by law. B, yes. Because the joint tenancy was broken when the first cousin put the judgment lean on the the property. C, no, because the judgment lien was never valid. A joint tenant cannot file a judgment note on just that joint tenant's interest.

0:46:19 Thomas: Boy,

0:47:07 Andrew: Or D, no because when the first cousin died, the second cousin became the sole owner due to the right of survivorship as per the joint tenancy, which is still fully intact.

0:47:20 Thomas: This is a very difficult one. This has got to be the hardest one I've had yet.

0:47:23 Andrew: I think that's right. This is a hard question. Question.

0:47:24 Thomas: Yeah. Oh, man. I really didn't like those first two answers. Those didn't sound right to me. I'm leaning toward a no answer because this is the the hardest question thus far. Would you mind reading C and D one more time?

0:47:42 Andrew: Sure. C says no, because the judgment lien was never valid. A joint tenant cannot file a judgment note on just that joint tenant's interest. And D says no because when the first cousin died, the second cousin became the sole owner due to the right of survivorship as per the joint tenancy, which was still fully intact.

0:48:05 Thomas: Gosh, this is just so hard. I really think it's one of those two. And I really could see it go either way because for one, I almost think that this shouldn't be allowed. Like I'm leaning towards C because how do you offer half of something like that up as a judgment? Because how would that work? Like then if you default on the loan or something, that means that someone just gets your half of of it, but then, I don't know, so that seems weird. So I wouldn't be surprised if it was C, but then again, D is a little bit convincing too. My only thought on D is if the first cousin dies, I do not know that it is in the question or not, or if this is something I should know from my extensive law school education, but I do know if that would mean the whole thing would go to the other cousin.

0:48:53 Thomas: I feel like the first cousins share should go to his or her next of kin or or something, I would think. So that seems a little weird to me, unless it's like specifically spelled out in their agreement, which it seemed like it was saying that when it said as per the joint whatever. So this is a really hard one. Gosh, I'm pretty convinced it's a C or D answer. And I'm going to go ahead and say it's C. I'm just going to guess C.

0:49:25 Andrew: Okay. Well, we will find out next week. And if you want to play along with Thomas, you know, the procedures by now, um, what you can do is, uh, you can play along either on Twitter or on Facebook. And what you have to do is quote our announcement posts. So on, on Twitter, we tweet out whenever the show has been released, quote that and include your reasons for your, your answer and your reasons. Therefore, if on Facebook, we also, uh. On the opening arguments page, we have a release post that includes a link to the show, and just share that out on your timeline, tag us, and include your answer and the reasons therefore, and we will pick a fabulous winner. We do this every Tuesday, and I think a lot of folks enjoy playing along with us, keeping score. Thomas is doing great. Hopefully, you're doing great as well, and then we'll see how those answers come out.

0:50:19 Thomas: Yeah, I think I got this one wrong. We'll see how this goes. I really can't decide.

0:50:24 Andrew: This is this turns on something that you know you have no right to know

0:50:28 Thomas: We will see. Yeah. So, six of nine, whatever. Still in my passing realm. We'll see. Maybe I got lucky. All right. Thanks so much for for that, Andrew. And yes, participate. It's really fun to play along, to do a funny answer, to do an interesting answer, whatever it is. And we love doing that every week. And that's all we have for today's show. Thank you so much for listening. As usual, thank you, Andrew, for being such an expert. Thank you to our fine patrons over at patreon.com/law, who I hope enjoyed Law'd Awful Movies number three, or was it four? Three.

0:51:02 Andrew: It was through and I enjoyed it, Tom Cecil, those guys are so good

0:51:04 Thomas: Yeah, Law'd Awful Movies. Yeah. Yeah. Law'd Awful Movies number three. I hope you enjoyed that, and stop breaking the law and we'll see you next week.

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