OA53: Did Jeff Sessions Perjure Himself & Other Trump-Related Stories

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. This is episode number 53. This is host number Thomas Smith and other host number Andrew Torrez. How you doing, Andrew?

0:01:28 Andrew: I'm great, Thomas. How are you?

0:01:29 Thomas: I'm doing great. Now you and I have actually heard the new intro, so that's cool.

0:01:33 Andrew: Oh, it is. It is definitely really, really good. I am super happy. I, I'm a little bit disappointed that the, uh, 95th amendment didn't make it in. Um, and somebody, oh,

0:01:35 Thomas: Oh man, it's hard. There's so much and I can't, yeah.

0:01:46 Andrew: I know. Yeah. Yeah, one of our, one of our patrons, uh made the suggestion, um, from, uh idiocracy of the clip of you.

0:01:46 Thomas: Oh, I know. I want to do that. I wanna, don't, don, don even, don' Even give it away. Don't even give it away. It's so good, it'll be a hunt, you know, episode 101. It Okay, but people will have to remind me because I'm not gonna remember. That's 25 weeks from now, there's no chance that I would remember, but that, that's a great line, and other people had all kinds of great suggestions.

0:01:55 Andrew: Yeah Yeah. You, you, you went to, okay. All right. Right. Yep. Yep.

0:02:14 Thomas: Sorry, I couldn't use all of them, obviously I can only use like four, I think it's four quotes, so Uh, and then there's one that was really good, that was uh, like bird law, from um, Always Sunny in Philadelphia, but the problem is every single line, they, they jump on the last word, so I couldn't cut it anywhere. Like, anywhere I cut it there would be like a, "well, I think," and then it would have to stop, you know, like, and I was just, I, no cut I could do, work. So sorry about that, so there's other concerns besides simply what the uh, what the line is, but uh, but anyway.

0:02:18 Andrew: Yeah.

0:02:44 Thomas: Thank

0:02:43 Andrew: Oh, and, and One more, one more plug for you. I have gotten an unusual number of inquiries this week about our intro and outro music, and that is all done by Thomas himself. Self, uh, he's the uh, author, creator, uh, creative genius and uh, musical, um, idiot savant that uh, that puts all of our stuff together. So maybe that's not quite the right word, yeah.

0:03:07 Thomas: You you could have just said savant Like, you didn't have to say the idiot part But I guess, because of how bad Badly I'm doing on The bar. It's, I, there'll be a certain percentage I need to get to, you know, to not be an idiot savant. That'll be fine. I agree to those terms.

0:03:09 Andrew: There you go right, yeah. Savant there we go. No.

0:03:23 Thomas: Thank you very much. Yeah. I worked very hard on that. And, uh, all righty. Uh, we've got a lot to talk about today, including a Trump date. Uh, so let's, let's hear that yodeler, shall we?

0:03:23 Andrew: Uh, no, that's the music the music is awesome, and that's why we, we doing okay. I have

0:03:38 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or no on it? Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:03:56 Thomas: So we've got a number of updates for you. I'm excited because I just love the chance to have Andrew set the, set everything straight for us on, on three, I think. Let's see, yeah, three very, very interesting current events, things that we've already touched on a little bit. But as the news breaks, we've got to answer the call here. So Gorsuch, first item, Gorsuch, this isn't exactly a Trump date, but kind of, Gorsuch received a well-qualified rating from the ABA, which is the American Bar Association. So what do you make of that, Andrew? Drew, does he get your well-qualified award as well, your badge?

0:04:35 Andrew: Well, no, I continue to stand by what we said in, you know, OA 49. But I did want to talk a little bit about what the ABA process means. And I should add as background, Antonin Scalia was rated well qualified by the A.B.A. Robert Bork was rated well qualified by the ABA. The last Supreme Court justice to be confirmed who did not have a well qualified rating was Clarence Thomas, who was rated as qualified. And I'm going to explain, you know, sort of how that comes about. Essentially, what happens is the ABA polls its executive group, and those folks vote either qualified or not. And if there is a unanimous recommendation of qualified, then the nominee gets the well-qualified tag. If there's a majority but less than unanimous, they get the qualified tag, and if there is not a majority, then they get the not qualified tag. The last person who was really in danger of getting the not-qualified tag was Harriet Myers. You may remember she was a 2005 briefly nominee by George W. Bush.

0:05:07 Thomas: That

0:05:53 Andrew: That seat ultimately went to Samuel Alito. But Harriet Myers was, I mean, she was a partner in a law firm in, in Houston. She was a political crony friend of George W Bush and was just sort of had never served as a judge, Had no experience with.

0:06:11 Thomas: Sounds not qualified to me. But do you know what criteria they're using when they're voting qualified, not qualified?

0:06:12 Andrew: Yeah, no, really not. I mean, just yeah. So so that's So that's exactly right. Like the the the ABA is an apolitical body and they are using academic and professional qualifications as the basis for determining if you are well qualified or not. So Neil Gorsuch graduated with honors from Harvard and then has served as a judge on the Court of Appeals for the 10th Circuit. That is well qualified academically and professionally. And, you know, we said that in our episode on originalism. So this is just something that I have seen. You know, a couple of kind of snarky folks have tweeted back at us with, well, you know, the the ABA was described by Chuck Schumer as the gold standard in vetting judges and they rated Gorsuch well qualified. Well, yeah, like that's the entry bar, right? Like that determines are you academically and professionally qualified to sit on the Supreme Court. And there is no dispute, right, that Neil Gorsuch is very, very smart.

He's probably smarter than I am. He is certainly more qualified than I Am in terms of his academic and his judicial background to sit in the Supreme Uh, but, uh, like Robert Bork, like Antonin Scalia and like, you know, Randall Kennedy, like hypothetical Marxists, right?

0:06:45 Thomas: Yeah. Well,

0:07:34 Andrew: It's not, it isn't his intellect that is disqualifying. It's his judicial philosophy. So, um, I, I did want to explain that process.

0:07:40 Thomas: It's a shame that they don't take that

0:07:41 Andrew: Us Well, you know, look like there are, uh, there are plenty of folks who are out there sort of, um, you know, trying to discuss it. I, I find, I have tried to get in, I, I, the, um, the opposition to Gorsuch seems really, uh, sort of fractured and not well organized at the moment. There are, you know, decisions that are critical of his, uh, tone in decisions about labor and things like that. And And those are hard arguments to make. I mean, to me, the originalism argument is, I mean, it requires you to sort of prime the landscape. But once you've made that, it's not a hard argument to make, and some folks have asked me if I could put kind of an executive summary of our episode in a blog format that

0:07:41 Thomas: Into account, you know.

0:08:26 Thomas: Oh,

0:08:26 Andrew: They could then, you know, share the text with.

0:08:26 Thomas: Yeah. I love when listeners ask you to do a bunch of work. Like, hey, could you write this in a book and bind it and give it to – no, no, it makes sense.

0:08:32 Andrew: Yeah. But but That being said, I'm going to I'm definitely going to try and do that. And hopefully that will be out by the time you hear this. If it is, I'll put a link in the show notes because I feel like this is something that that I can do to kind of help move the dialogue. And if there's, you know, two pages that you can send to a staffer that's on the Senate Judiciary Committee, that's, you know that's worth my, putting a couple of hours into into writing a post. So I'm going to try and do that.

0:09:03 Thomas: You're going to bill the people who asked you to deal with that, though, right? Right. Those are, those are billable hours, everybody, just so you know.

0:09:06 Andrew: I am. Yeah, right. Yeah, that is that

0:09:11 Thomas: Uh, so we shouldn't lean too heavily on this rating. However, it would be pretty alarming if somebody received not the top rating, which I, you know, I didn't know this cause I didn't follow it while I was too young at the time. But, uh, you just said that Clarence Thomas didn't get the highest rating, which is interesting. Is it worth mentioning what happened there? Or this is before my time, so I don't really know.

0:09:23 Andrew: Yeah.

0:09:32 Andrew: And it was, I had just graduated from high school, so I was still young. I will say this, that as a law student in the 1990s, and then a lawyer beginning in 1997, with sort of the Clarence Thomas nomination, and he was confirmed to the court in 1991, sort of still fresh, right? Right. Like the last 10 years we've we've already established is what counts as recent for a lawyer. And and it was part of the discussion my colleagues at Covington and Burling, many of whom had practiced and had argued in front of Judge Thomas when he was on the U.S. Court of Appeals for the D.C. Circuit, which is widely considered sort of a feeder court to the Supreme Court.

And the uniformly those folks, regardless of their political backgrounds, would tell me that their experience arguing in front of Judge Thomas was that they sort of came away underwhelmed with the idea that, you know, this person was being groomed for the Supreme Court. Like it just sort of seemed like a reach.

And there was, you know, sort of widespread as though his judicial temperament and academic acumen were not sort of up to the task, as opposed to, again, you and I have gone back and forth over this.

0:10:05 Thomas: Yeah, yeah.

0:10:56 Andrew: Like, I, I continue to maintain, right, Antonin Scalia was very, very smart. The reputation that that Clarence Thomas had was of somebody who was not particularly smart. And again, we're saying that, we're seeing that for, a a for an appellate justice, right? Like we're not, you know, we're not talking about, uh, you know, when I'm talking about, we're grading on a curve here, I should say. I mean, all of them, you know, are not folks you would want to play at Scrabble, right? Like, you, you know, we're not, we're not talking about people who have, you know, are sort of below average intelligence generally. But but, you know, usually the Supreme Court sort of on either side, I would say the same for, you know, for John Roberts, for Samuel Alito, like these are powerfully intelligent people. And you really need to be in order to to kind of delve into the minutia of of the kinds of cases that get before the Supreme Court.

0:11:48 Andrew: And the reason is If a case, if a case has a fairly straightforward outcome, it by and large doesn't get to the Supreme Court, right? Right. Like they don't need to take those kinds of the old, by definition, the only cases that get there are hard cases and, and hard cases, you know, required.

0:11:56 Thomas: Yeah, that's true. Yeah. All right. Well, the other items are more interesting. I shouldn't have even, I shouldn't have, so Gorsuch, yeah okay, he's qualified, technically qualified, we get it. All right, the tax release fiasco. This is a little bit old news by now, but still, I'm sure a lot of people want to know what you think about that. Trump's 2005 tax return, or was it just the 1040? I can't remember.

0:12:08 Andrew: Yep. Right. Yeah.

0:12:25 Thomas: Yeah, I think.

0:12:24 Andrew: It was just the front two pages of his 1040 from 2005.

0:12:27 Thomas: Okay, and that was released. That was like leaked, like mailed to a certain jury. It wasn't mailed. I think it was mailed somebody else, right? And then they, I

0:12:36 Andrew: Yeah, it was it was slid under the door of David K. Johnson, who is a well-known D.C. reporter. And then he went to Rachel Maddow.

0:12:39 Thomas: Don't know, right. Right. And this was what brought Trump down. This was why President Hillary.

0:12:48 Andrew: That's why the yodeler went off the cliff. And yeah, they've reinstalled. They actually made Bernie Sanders president.

0:12:51 Thomas: Yeah. Oh, good. Okay.

0:12:56 Andrew: That's that's that set to take effect later today. No, I you know, look, we urged a tremendous amount of caution after talking to Tony DeFata in 0845 and 46. It's not to suggest that calls to look at Trump's taxes are not illustrative, but that the sort of single mindedness in the focus on on getting the tax returns as though, you know they were the holy grail that's going to show the evidence that's going to bring down the Trump administration. You know, we said that seems sort of misplaced. And boy, the 2005 tax returns really demonstrate that in spades.

I mean, the two things you can tell from the 2005 text return are, in my view, unambiguously positive for Trump, right? So in In that year, first, he shows an income of $250 million, which helps, in my view, this plus the next fact, strongly support the position that Donald Trump is, in fact, as rich as he says he is, right? Like you have folks like Lawrence O'Donnell claiming that Donald trump was not a billionaire by an order of magnitude, right, like that his net worth was $100 million. Million. And this is sort of used to,

0:13:42 Thomas: Yeah. A

0:14:11 Andrew: You know, I look like, you know, no,

0:14:10 Thomas: Paltry hundred million dollars. Could you imagine, could you imagine living on a hundred million, a shoestring budget of a hundred million?

0:14:18 Andrew: But You know, But part Of the argument is right, the comparison between the money Trump inherited being in real estate and what he wound up with. And so there certainly was a narrative on the left of Trump isn't as rich as he says he is, and we know that's the case because he's hypersensitive about releasing his tax return. They would show he's not as as rich as he says he is. Well, we found out two things from the income line. Number one, we found out that he made $250 million in 2005. It's kind of hard to make $250 million if you're not worth at least a billion, right, from the properties. I mean, that's a pretty high return.

0:14:19 Thomas: Yeah. Yeah,

0:14:54 Andrew: Because remember, your net assets, I mean I don't need to tell you this, but your net assets are a lot more than just what your income is in any one year. Um, and number two, and to me, this is sort of the most critical we have in putting the pieces together. We have the 1995 return that shows Trump taking nearly a billion dollars in net operating losses and using that to, to, uh, offset future income. Right.

Uh, and we talked about that back when the 19, 1995 return was, was released. Least, um, in 2005, he's got $250 million dollars in income and he only offsets $100 million of it, right? So what that says is that '95 net operating loss was either entirely used up and then there were new losses which got entirely used up by 2005, Or at minimum, at least 800 and some million of that net operating loss was used up to offset income between 1996 and 2004, right? Which suggests he's earned about a billion dollars over those years. So you put all of that together, that's kind of point one, the tax return seems to show that Trump is as rich as he claims to be, which, you know, that sort of plays into that liberal argument. And then number two, and this, I mean, I think you just have to and say you're wrong if you were somebody on the left making this claim. Trump's tax rate in 2005 was 24.7%. And that is—now, a lot of our listeners who are like, I make $60,000 a year and my tax rate is 40%

0:14:54 Thomas: Yeah, yeah. Right.

0:16:34 Andrew: Are probably looking at that going, that seems a little unfair. But by comparison, by the standards of wealthy people, a pretty high tax rate. Most wealthy people are earning their income from investment dividends and other forms of income that get preferential tax treatment. So, for example, when Mitt Romney released his tax returns, he was paying an effective rate of under 15 percent. I think there's an Obama tax return that has his effective tax rate just under 20 percent.

0:17:04 Thomas: Yeah he paid more More than, more

0:17:06 Andrew: Yeah.

0:17:06 Thomas: Than Obama.

0:17:07 Andrew: And so look, like paying 25% in taxes directly undercuts the argument that Hillary Clinton made in 2016 of Donald Trump pays no taxes and doesn't think he has to. And you, even more so than me, I mean, I want to give you credit for sort of being out there out in front when the 95 return was released and saying, this is not a great argument for Democrats to be pursuing.

0:17:32 Thomas: I never, honestly, I don't understand it with Mitt Romney. I don't understand it with anybody. I, because, we need, if you want to change tax law, that's, that's fine. Like, we can up the capital gains tax, or whatever it is you want to do, that's all fine, but I do not understand when somebody hires CPAs to, like, you know, do their job, and just, yeah, I'll file my taxes, do, as long as they're not cheating, as long as they're not not actually doing something illegal, they're going to pay whatever tax rate they owe. They're not going to play more than they owe, and I've never understood, oh, Mitt Romney, he should have just volunteered to pay 10% more in taxes just to be a good guy. Nobody's going to do that. I've, I've ever

0:17:34 Andrew: Yeah. Yeah. Right. Yeah. Yeah. I

0:18:14 Thomas: Understood that. So that, that has never been a big deal to me, but, uh, but it was interesting to consider the idea that maybe he wasn't making as much money as he said, thought. And I think there could be something to that before the apprentice and all that of went crazy. I think that from what I've seen in the evidence of his business dealings, like it's I don't think he's that great of a businessman, but he is a good, you know, marketer of his brand or whatever like that. So once the apprentice kind of took off and he was able to leverage all that, which I think was around that time, right? Right. Or around 2005.

0:18:17 Andrew: Agree. Yeah.

0:18:50 Andrew: Yeah.

0:18:50 Thomas: Yeah, sure. I mean, he's probably making a killing after that. But I don't it would be interesting if we could look at again. I don't know anything. I'm just speculating. But if we were able to look at all of his tax returns, it would be fascinating to see kind of the details of how his business has gone, you know, for all the way through the years.

0:18:50 Andrew: Yeah.

0:19:09 Andrew: And, and, there is a political argument to be made that, um, the Guardian, for example, uh, when they covered this story, the angle they chose was that, absent the alternative minimum tax, which Donald Trump wants to Abolish, and which, uh, There There will probably

0:19:23 Thomas: Yeah. Oh, that's true. Yeah. Because he did pay the alternative minimum tax in this in this tax return. Yeah.

0:19:26 Andrew: Yeah. Right. Yeah, and and so without the AMT, his tax rate would have been like, you know, 3% or something like that. So, you know, it, it may prove useful in that AMT debate, because I would put the likelihood at near 100% that a bill to repeal the AMT gets, you know, passes the Congress this year, um, and so, you know, at least the House of Representatives, where it will have to originate, um, yes.

0:19:34 Thomas: Yeah.

0:19:50 Thomas: I was going to say that's something that you need 60 votes for, though, right in the Senate.

0:19:58 Andrew: Yes. Exactly. I'm not, I, I specifically, I was trying to walk back Congress to House of Conservatives, like it's going to pass the House, uh, and then we'll see, uh, you know, if the Democrats' permanent filibuster is able to, uh, to stop it in the Senate, um, but, but look, like it's hard to vote against tax cuts, no matter how stupid. Right. So I don't, there's, our political discourse has been poisoned to the extent that representatives and senators are judged by did you vote for a tax cut or a tax increase, as opposed to what did you do with respect to the tax burden on, you know. Know, the middle class. And it's, you know, it's, as a result, you know, as a political point I make all the time, there's a reason that every service in your state that you know used to cost you eight dollars to get your license renewed, and it now costs you 75, there's a reason

0:19:58 Thomas: Yeah, okay. Yeah car

0:20:49 Andrew: That your in-state tuition has gone from yeah, all of that, right? Yeah, because when you vote for user fees, when you, you vote for X or Y or Z, that doesn't carry the same stigma as voting for taxes, and it's the same thing, right? It is dollars you are required to pay to the government, and the idea that our political discourse has been poisoned to the fact where one kind of dollars is off limits, but other kinds of dollars are not is just kind of mind-boggling. Anyway, off of that, so that's

0:20:50 Thomas: Registration is so much for California.

0:21:04 Thomas: Yeah. Yeah. Yeah. So Yeah.

0:21:21 Andrew: His taxes, is, there's the argument on the AMT, but um, but this release I think you know, yeah, yeah,

0:21:25 Thomas: That is, I mean, I think it's pretty easy to hit him with, a while you're advocating for something that would result in you paying way less in taxes seems a little, seems a a little self-serving. But yeah, so it wasn't really a bombshell. And I'm glad we did that show in preparation, because, a, that little bit. And I wouldn't have necessarily known had we not done that show, like how little I should expect, especially from a one randomly chosen tax return, you know, 12 years ago now. Like it's, there's just not I mean, it's not gonna, there's not going to be like a

0:21:56 Andrew: With with no with none of the supporting schedules either. Right. Yeah. So, yeah,

0:21:59 Thomas: Right Right. Right. There's not gonna be a line item that's like, did you, uh, collude with Russia in the future, and then it's like, check yes, and then he checked yes, and damn, we'd know, you know, like there's, there wasn't much potential there, but anyway, next item, this is, uh, for, for us recording right now, pretty, pretty hot off the presses, but I, I think that already I'm sure you'll be able to give a much more thoughtful answer than people are probably have seen in the media this last week. Uh, the revised executive order on immigration, it just got blocked, uh, partially or in full, I'm not sure, that's what I have, Andrew, for, by a judge in Hawaii.

Um, I think like five hours before it was scheduled to, to take effect. So this has the usual thing that we've already talked about happening, which is, you know, that people talk as though it's, it's solved. Like this is blocked permanently and there's nothing Trump can do about it. I mean, there's, there're a lot of misrepresentation here. Clear it up for us, Andrew. What happened? Is it pretty much what you've already said was going to happen all along?

0:22:10 Andrew: So uh, and, and as we go to press, um, a U.S. district court here in Maryland uh also blocked part of the executive order. The Hawaii decision blocked the order in its entirety. And when we say blocked, what we mean by that is issued a temporary restraining order, TRO. That's exactly

0:23:17 Thomas: Temporary restraining order? Yeah. Trying to learn. I'm trying to learn the vocabulary for next time when you hit me with a bunch of impossible terms. TRO should have been on there. Guys, next time We ask for vocabulary, give me, toss me in a few easy ones. What'd you you like ask them just even if you know what it is just be uh what is uh law what is it just ask me a few easy ones so I can feel smart anyway go on well.

0:23:20 Andrew: Right. Yep. It should have been.

0:23:40 Andrew: Well, let me ask you that. Why don't you explain what a TRO is?

0:23:44 Thomas: Just that it's a temporary restraining order, I'll no, it just puts a temporary halt on it and then they're going to have to evaluate it and this is still, so Hawaii would still be in the Ninth Circuit, right? So yeah.

0:23:55 Andrew: Yes. That's correct, yeah.

0:23:56 Thomas: So there gets back, back to the Ninth Circuit again.

0:23:58 Andrew: It'll be a different panel though, this time, it doesn't it doesn't necessarily go before the the same panel, uh, that uh, that that upheld the TR last time, but yes, so procedurally this is what happens, uh, the uh, U.S. District Court for the District of Hawaii blocked, issued a TRO that followed the injunctive relief standards that we've talked about before, with the primary issue being that in order to get a temporary restraining order that prevents the executive order from going into effect while the court considers the constitutionality of the entire executive order on its merits. In order to do that, you have to show, there

0:24:00 Thomas: Oh, okay.

0:24:38 Thomas: It's our test again. Likelihood to succeed on the merits, right?

0:24:41 Andrew: You go.

0:24:42 Thomas: Got to show some harm.

0:24:43 Andrew: That's the primary one. Yeah.

0:24:44 Thomas: You got to show the balance of harm favors the, you know, favors blocking it. And then there's one more that I never remember because it doesn't come up, right.

0:24:51 Andrew: Yeah, public interest favors granting the injunctive relief. Yep. So yeah, and in the case of First Amendment, right, irreparable harm is presumed as a matter of law. So all of the other factors were not going to be an issue. The issue was going to: Could you demonstrate that the petitioners, in this case, the state plaintiff, the State of Hawaii, was likely to prevail on the merits of the underlying claim? And this is what we analyzed on 0851. We walked through the City of Hialeah case, which is the clearest guidance from the Supreme Court on what it means to have anti-religious animus as as the behind passing a particular piece of legislation, or in this case, an executive order. Um, and if you turn to, oh, go ahead.

0:24:53 Thomas: Uh, okay, hmm.

0:25:40 Thomas: Well, I was going to say, let me ask you, put on your non-partisan hat right now as best you can find it. Oh, we'll wait. We'll pause the recording, find your non-artisan hat and as best as you can forgetting everything, you know, we hate about Trump and the policy and all that. Is this a, do you really think this has a strong enough likelihood to succeed on the merits that you would have issued a TRL? Let's say you're, you're a federal judge and someone brings this to you, would you have done this?

0:25:56 Andrew: Yep.

0:26:12 Andrew: Yeah. So, um, and the answer to that is, uh, if you want the best case argument for issuing the TRO, it is section four of the opinion, which we're going to link in the show notes. It starts on page 28, and it is a lengthy and considered analysis of the Supreme Court cases. It cites our friend City of Hialeah and Ninth Circuit cases, because remember that the District of Hawaii is also bound to follow Ninth circuit precedent, right, on what it means for a statute or executive order to be religiously motivated and therefore violate the First Amendment. I mean we didn't put error bars or numbers on it on 0851. If you'd asked me to sort of predict, given any individual federal district court judge, I probably would have put the odds at 70 30 the other way.

0:27:08 Andrew: I think that it, are loath to try and infer intent. There certainly is a significant amount of precedent, even at the Supreme Court level, that defers to the executive branch when it comes to matters of immigration. There's Supreme Court precedent on that. Uh, and, you um, know, and we sort of walk through the facts of the City of Hialeah decision, uh, which, you know, in, in my view are, um, potentially stronger, uh, than, than in this case. Um, but you of that being said, there's a significant body of evidence, uh, that uh has been accumulated out of the words of Donald Trump himself, uh, and his surrogates and his campaign, uh, and and the court collects that and says, look, like when you, uh, one of the things that that that they, uh, quote, that the judge quotes in the opinion, uh, that I thought was was fairly clever was, um, quoting, uh, Trump's debate answer. When he was asked, might recall Mike Pence at the vice presidential debate disavowed the notion of a Muslim ban, said we're not going to have it.

And so then Trump was asked the question at the third debate. Mike Pence says you're not gonna have a Muslim band. Are you gonna have it or not? And Trump says, well, look, we thought about it and we're still gonna have Muslim band, but now we're gonna call it extreme vetting. Um, and uh, and and so,

0:27:53 Thomas: Yeah.

0:28:35 Thomas: He's such an idiot.

0:28:37 Andrew: Uh, and so, you know, you have, um, I mean, these these statements, you know, uh, as I said in OA 51, a lot of these statements, uh, do they go as far as saying, um, we want to pass this ordinance because the Bible forbids, you know, the practice of Santeria, and, uh, and that's, and we're going to do this to stop this church out, and like, it doesn't quite go that far. But in some ways, you know, that there's still a pretty good line kind of connecting, the connecting up the dots.

0:28:39 Thomas: But I Am wondering if you're doing a bit of burden shifting, or if we all are doing a bid of burden shifting, because what's the, I mean, more precise wording of what you need for TRO? Isn't it a strong likelihood of success on the merit? So it's not, it's, is there a possible case to be made that maybe a liberal judge would would like? You know, it is. And that's honestly, from a nonpartisan standpoint, it makes me a little uncomfortable, because we would be pretty mad about this the other way, I think. But I don't know. That's why I wanted to ask you if, if what you think about that. And if you think, if you, if doing your best to divorce yourself of of any sort of very reasonable concern with this executive order, legally speaking, is this a strong likelihood of success on the merit?

0:30:00 Andrew: Yeah. 100% correct as to the standard, and you are exactly right to sort of focus in on if it just sort of marginally tips one way or the other, that's usually an argument against issuing the TRO, right? Because if it's a coin flip as to whether a statute or an executive order is going to be constitutional, ordinarily what we say is, well, then, you know, let it go into effect, right, if—right.

0:30:25 Thomas: Yeah. And then and then challenge it.

0:30:27 Andrew: Right. Like we continue to say, you know, elections have consequences and ordinarily we don't want the judiciary to stop, you know, the legislative or the executive process. So, look, I agree with that. I think that it's an aggressive but defensible opinion. I expected the court to come out the other way. The implication is now the same process will have to take place that took place on the first uh executive order, which is to say, this decision will get appealed to the Ninth Circuit uh and pending appeal the government will have to decide if they are going to move for a stay of this judgment pending appeal, right? Staying the judgment then undoes the TRO, lets the executive order go into effect while they evaluate the Barretts um and they will face. So then the government will face that burden of showing a substantial likelihood of success on the merits in order to get the stay, right?

0:30:28 Thomas: Yeah. OK. OK,

0:31:29 Andrew: This is what the same thing the Ninth Circuit did last time. And I would move the needle on that, given that, the state of Hawaii has now won at the district court level. Similar plaintiffs have won in part in Maryland. I would remove the needle.

0:31:43 Thomas: So What was the Maryland thing? What was the point of that if they already had a uh okay

0:31:45 Andrew: There were just multiple cases pending at the same time. So, you know, that you might as well sort of.

0:31:49 Thomas: Gotcha it doesn't do anything different really, okay.

0:31:54 Andrew: Yeah. If the Maryland court had come out a different way, it would not have removed the injunction issued by the District Court of Hawaii. The fact that it overlaps means that you will, you have kind of multiple paths of of getting this up to the Supreme Court on the merits. Um, yeah, at this point now you have uh temporary restraining orders in place and the government will need to decide if they're going to move for a stay. Um, I suspect that they will, it would probably be my counsel if I were uh Donald Trump's lawyers, but I think I would advise him at this point that that's probably a 50-50 proposition now um as to whether the uh the the Ninth Circuit and or the Fourth Circuit will issue a stay pending appeal. And you've got to win both now, right? Because if the Ninth Circuit issues the stay, but the Fourth Circuit doesn't, right, then you still have, all you need is one

0:32:01 Thomas: So

0:32:48 Andrew: Extant order blocking the EO from going into effect and it goes into effect.

0:32:54 Thomas: Okay so If the even Fourth Circuit says, now we're, we're getting rid of this TRO over here but

0:32:55 Andrew: Right. Right. Right. We're going to we're going to stay the TRO pending an evaluation on the merits as long as the Ninth Circuit upholds.

0:33:06 Thomas: The Ninth circuit well Okay, but the Ninth Circuit keeps the TRO in place, the the law, the the, the EO is still on hold, right?

0:33:07 Andrew: Yeah, correct. That is right. So you have to decide as a matter of legal strategy. Now, if you were the president, do you?

0:33:15 Thomas: Okay. Yeah. Do they just forfeit one of them? They're just like, ah, who cares about that one?

0:33:24 Andrew: Yeah. Well, yeah. Yeah. No, Seriously. If you want to, first, you have to decide if you want to pursue the a stay pending appeal, uh, because if you, if you rate that as having a low probability of success

0:33:33 Thomas: Oh, I see. You would have to do both of them. Yeah, so, so that, that kind of puts them in a tough position. They have to win both of those to get a stay. I see, you're not, yeah, this is not one of those times where you're going to put put out a call. Hey Trump, uh, hire me.

0:33:38 Andrew: Right yeah yeah um now it. So, so this is the strategy that I would do if, um, I were Trump's lawyers and I, you know, right please please do not circulate this. If You have friends who work in the Trump White House, I would negotiate with the state plaintiffs in Maryland. And there's one other case that's pending. And I would say, OK, let's stay the consideration of these cases pending the Ninth Circuit's outcome in its case. Um, and they're likely to agree with that, uh, because it's going before the ninth of the Ninth Circuit is a more liberal circuit than the Fourth Circuit anyway. Um,

0:33:56 Thomas: Yeah, no, I see.

0:34:30 Andrew: And that at least stops you from the government of having to win everywhere, right? It gets rid of sort of the backstop effect and you say, look like the whole idea of not wanting to, to, uh run up with sort of multiple conflicting court opinions suggests that, Uh, we should put this litigation on hold. Let the Ninth Circuit evaluate and then we'll we'll have them lift the stay here. And if there's other things to litigate, well, you know, we'll return here. I think you would get that deal in those cases because I think they would look at it and go, yeah, well. Well, okay, well, we'll let the Ninth Circuit take a crack at it. Ninth circuit, much more liberal than the fourth. And from the Trump's camp's perspective, that's a, you know, defensive holding action. And then you have to make the decision whether you want to seek a stay pending appeal or not. The reason not to do that is because ultimately it will slow down the consideration of EO on the merits, right? You will get an expedited appeal from the District of Hawaii to the Ninth Circuit, just like last time.

If you move for a stay pending judgment, then the court, the NinTH Circuit, has to take up that motion before they take up the appeal on the Merits. And if you think they're likely to deny the stay, which you may well make that judgment, the court might say, well, you know what, like, fine, we're not going to try and lift the TRO.

0:35:05 Thomas: Yeah.

0:35:57 Andrew: We're going to let you temporarily restrain our executive order pending the appeal on the merits, but we want an expedited briefing on the merits. And we want a ruling in, you know, three weeks on the merit of this. And to be honest, that's a perfectly reasonable request, right? And that might be, again, again, you know, I haven't, I didn't come on the show thinking about how do I advise Donald Trump, but That might be the strategy that I would take is to say rather than fight for a stay again, get another order from the Ninth Circuit, maybe have to craft this thing a third time, say, you know what? Like, let's just get a ruling on the merits. We're either going to win and then it will go into effect.

And, you know, the state petitioners will have to petition to the Supreme Court or we'll we'll lose and we'll petition for cert to the Supreme Court and we will get this before the Supreme Court and make the same sort of expeditious argument. But you can kind of kick courts into high gear when you have something that is pressing. And for all of, I think this is terrible policy, it clearly falls into the category of

0:36:21 Thomas: Yeah yeah.

0:37:09 Andrew: Something that deserves expedited review in the courts, right? So, um, that that might be the strategy that I would pursue, uh, because I I've described it as 50-50, but as I'm, as I'm thinking and walking through, right, you're shifting the burden now back to the government and is the government really going to be able to show a substantial likelihood of success on their First Amendment claim when you have, you know, the Giuliani evidence and the evidence out of Trump's mouth and, you know, a pretty good mountain of stuff and a pretty well-written opinion?

0:37:17 Thomas: Yeah it's interesting how just the, this burden shifting is key. Like what, you know, whichever way the burden is, you're like, nah, they can't meet that burden, which seems interesting from a philosophical point of view, point of you. But yeah. All right. So that's, what's going on. None of of this, however, to give our final yodeler rating for this week, none of this is really increasing any likelihood of Trump being impeached or anything, it sounds like.

0:37:37 Andrew: Um, Yeah, yep.

0:37:55 Andrew: No,

0:38:04 Thomas: But, yeah, Yeah. But for our main segment, there might be something that's maybe a hint in that direction or at least related to what may someday be a problem for Trump, but probably not. So why don't we get over to our main segment of the day.

0:38:04 Andrew: But, this is the week in Trump. So,

0:38:26 Thomas: Let's talk about Jeff Sessions and whether or not he perjured himself in this testimony, this odd testimony. By the way, when he, if you look at the video, which I'm sure most people have by now, he just sort of gives this answer without even being asked. That's the funny thing. Like Al Franken was questioning him, asked him kind of a semi related question. And then, and then Sessions just goes off and starts, you know, saying like, well, I didn't have any contact with, uh, with Russians. Something he wasn't really precisely asked, which is always a good sign, right? When, when, when you're trying to evaluate whether someone's guilty of something.

0:39:03 Andrew: Yeah, that's not suspicious at all. So, yeah. Yeah. So here's this is the exchange between Senator Al Franken and Jeff Sessions at the confirmation hearings. So Al Franken talks a little bit about the intelligence reports,, says these documents also allegedly say, quote, was there a continuing exchange of information during the campaign between Trump's surrogates and intermediaries for the Russian government, end of quote. Now, again, I'm telling you this as it's coming out. So, you know, but if it's true, it's extremely serious. And if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the campaign, what will you do? OK, so that's the predicate and the question. And Sessions answer is, Senator Franken, I'm not aware of any of those activities. I have been called

0:39:03 Thomas: Yeah. Oh, good, yeah.

0:39:55 Andrew: A surrogate at the time or two in that campaign. And I didn't have, I did not have communications with the Russians and I'm unable to comment on it.

0:40:04 Thomas: That's really weird because, so, he's being asked as attorney general, what are you going to do if this ends up being true or something? And the answer could have just been, oh, well, I'll, uh, you know, of course investigate that. Or or he could say, well, since I was part of the campaign, I'll recuse myself and we'll investigate those charges fully. That right?

0:40:23 Thomas: I, I mean, isn't that, that's, he could have just said that.

0:40:08 Andrew: Right, right. Yeah, it is. This is an example of where and I, I really I have a great amount of respect for Al Franken as a senator. I was a little I was really skeptical when he won his race over Norm Coleman. And he won it by like 35 votes after a recount. I mean, it was it was, you know, out of millions cast. It was a super It was a súper thin margin. He was, you know, he wrote the, you know, "Rush Limbaugh Is a Big Fat Idiot" book. I was a little bit, it was funny, right? You know, to funny to liberals. You know, obviously he's awesome in Trading Places. And it, but but I was a little bit concerned that he would go into the Senate and sort of be a hyper partisan bomb thrower. And and I think he has, again, you know, I'm a lefty, I agree with him, whatever. But I think even if you are right, you might be able to look at it and say, you know, here's somebody who really has conducted himself with decorum and not

0:40:36 Thomas: Yeah, me too.

0:40:47 Thomas: Oh, wow. Yeah,

0:41:26 Andrew: In any way, you know.

0:41:26 Thomas: I think he really did do something Trump never did, which is pivot. He did kind of pivot from being an entertainer to really hunkering down and just being a good politician.

0:41:31 Andrew: Yeah, right. Yeah. Yep. Yep. That being said, this is a classic, as you point out, this is this is the classic exchange of where I think if Al Franken had been a lawyer, he might not have let this run away because it is you

0:41:50 Thomas: So would he ask, would he have asked follow-ups?

0:41:51 Andrew: Would have asked follow up questions, right? Like it's, it's just it's one of the first things you learn as a young lawyer, when you start taking depositions is when you ask somebody a question, and they don't answer the question You say, okay, thank you. I appreciate that answer. The question was, and you keep asking it, particularly in a deposition is a great way to do that because it's not cross-examination. You don't have a jury there that's getting bored. And you just keep going back and asking the question until you get an answer.

0:41:53 Thomas: Yeah. Yeah. Yeah. Yeah. Well, but again, what's weird, though, is the original question is not all that interesting. I mean, the original questions is he can just give a cookie-cutter answer of I will recuse myself, we'll investigate. So are you saying he should have gone back to that boring question? Or are you say he should've kept asking about this? Like, why did you just answer a question I didn't ask?

0:42:33 Andrew: Yeah. Right. Yeah. There's the flip side of that also is when you get an interesting piece of information, you you drill that you drill down on that all the way as well. Right? So I was sort of talking about two different aspects of of how lawyers would have sort of treated this answer. You would go back. You would run the original boring question to ground because there's... there's some reason, right?

0:43:03 Thomas: Okay, yeah.

0:43:14 Andrew: Like, yeah, there's a reason why he did not say I will fully investigate. Right. Like and the reason is because if he says I willfully investigate any connection between the Trump campaign and Russia and then he's had connections on behalf of the Trump campaign with Russia, then, uh, you know yeah It's important it's important to run the answer to ground, and and then you would also say like oh that's kind of interesting that you've decided so when you've said you had no content let me read that back right

0:43:14 Thomas: You still need the answer, yeah?

0:43:30 Thomas: Yeah. You're Right, it's not that boring of a question. You're You're right, but Yeah. Yeah. Yeah. It's a Yeah, Yeah, yeah, it's essentially he's like, so what will you do if there's been any contact with Russia? There are no bodies in my backyard. What there are definitely no bodies and buried right now in my backyard. What are you talking about?

0:43:53 Andrew: Yeah and yeah you would you would ask the stenographer to read that back and you and the sten photographer would say uh I have been called a surrogate at a time or two in that campaign and I didn't have, I did not have communications with the Russians. And then you would say, I just want to make this clear, Senator Sessions, are you saying during the pendency of the Trump campaign that you had no contact with any Russian officials whatsoever, right? You know what I mean? You would probe that in more depth, figure out, because that is a shocking answer, right? Now,

0:44:01 Thomas: Yeah. What did he just say? Yeah.

0:44:25 Thomas: Pin him down to the facts. Yeah. Yeah.

0:44:33 Andrew: We know that answer to be false. We know that answer to be false in at least two ways. The evidence is that on July 18th there was a panel discussion hosted by the Heritage Foundation that was attended by a number of ambassadors. The discussion was focused on the Russian territorial advances into Ukraine, which you may recall being an issue at the time. This is July 18th, 2016. And then after that event, Russian Ambassador Sergei Kislyak came up to Jeff Sessions and spoke to spoke to Jeff Sessions. It was then confirmed that that Sessions spoke to some of the ambassadors after the event, including Kislak.

0:44:36 Thomas: Shocker.

0:45:23 Andrew: Now, that one, you know, sort of being part and this has been described as, you know, he kind of came up and said, hey, nice speech or whatever. This was at a time in which the relationship between the United States and Russia was a crucial campaign issue in which Jeff Sessions is one of the only officials in the country who was endorsing Donald Trump active out there as a surrogate. And there is contemporaneous evidence that at that panel, there were numerous senators. There were lots of elected officials and all of them, there Were 26, 20 responded to a questionnaire from the Washington Post of Did you meet with Sergei Kislyak? And all 20, he said no, including John McCain, who was the chairman and the head of the committee.

0:46:12 Andrew: Right. So seems like, you know, on the one hand, you can say, oh, yeah, good old Sergei came up and clapped me on the back and said nice speech and, you whatever. On the other hand, your Republican colleagues are deliberately avoiding this guy because Russia has sent troops into Ukraine, um, and, you know, this is a hot button issue, uh, so, you know, it seems like there is, um, a little more. Right, it's, this is not just, you know, if somebody were to ask me, have I ever met with any, uh, you know, officials of the Russian government, um, my answer would be no. And then if you wanted to go back and show that, you know, I had a client in, you know, 2003 who was married to an ambassador and I never, you know, like, whatever, there are different ways of going through that.

Um, this seems like something that should have risen to a higher level than that. But that is not the most significant. The evidence is now undisputed that on September 8th, Kislak requested, was granted and met with Jeff Sessions in his Senate office. And that a Russian official later told Harwood and NBC's Hallie Jackson, both unimpeachable reporters, that ambassadors would often make superficial comments about election-related news. Um, and so, uh, that is, uh, you know, that's that's a kind of a downplaying.

0:46:45 Thomas: Yeah, what What is that mean exactly? I don't understand.

0:47:41 Andrew: Huh? In other words, we don't know what the subject of the meeting was between Sessions and, uh, Kislyak, uh, but one of the election, but, but we can infer, hmm, it's September, uh, and, you know, everybody on earth is talking about the Trump-Clinton race, and other officials on Kislak's staff have confirmed that in those meetings, like, of course you would talk about the fact that there's an election going on. They described it as, you know, sort of superficial comments. In my view, if there is any conversation at all about the election with somebody who is a prominent Trump, Trump surrogate, two months before the election, that is going to remove by far one of the excuses that I'm going to talk about next.

0:48:31 Andrew: So those are the facts, right? Sessions said, volunteered in answering a question that was not asked. Nope, I don't talk to Russians. I've never talked to Russians. And In fact, on at least two occasions, talked to Russians, talked to a high ranking Russian ambassador at a time in which his colleagues were avoiding him, and at a time in the Russian ambassador's subordinates have said, yeah, they probably talked about the election. I mean, not in great detail, mind you, but they probably talking about the election. Now, with those as the facts, the question is, is this perjury? And the answer is the perjury statute is 18 U.S.C. 1001, and it prohibits whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States, that includes a confirmation hearing, knowingly and willfully, and then subsection two, makes any materially false, fictitious, or fraudulent statement or representation.

0:48:42 Thomas: Yeah yeah

0:49:30 Andrew: Now, we know that subsection two has been satisfied, right? This is a materially false statement. Sessions had contact with the Russians. But you probably noticed the predicate terms on that, which is knowingly and willfully. And we discussed this in way back in 0813 on Hillary Clinton's emails, which is to say that showing willful intent is the highest standard of criminal culpability in the law. And in the Hillary Clinton case, we had an independent FBI investigation that said there was no intent. Now, how do you go about establishing whether Sessions intentionally made a false statement to Senator Franken?

0:50:18 Andrew: The fact that it's intentional doesn't mean that we just sort of throw up our hands and go, well, you know, you never know what's in someone's head, right? Right. Like we have precedent on that. Right. And we have directly instructive precedent because we have the impeachment of Bill Clinton for perjury, for making a materially false statement to Congress regarding Monica Lewinsky. And Jeff Sessions voted and was very public in in his pronouncements that that that President Clinton needed to be impeached. Um, Clinton made a false state, and I'm going to use his public statement, even though this was not the statement before, uh, the grand jury, uh, for which, uh, the the technical charge of perjury came about. But but we all remember, or have seen the video of President Clentin wagging his finger and saying, "I did not have sexual relations with that woman, Miss Lewinsky." Right, so we know that that's a false statement, right? And now we have to judge, is that an intentionally false statement or not. And it's not hard for us to make that judgment, right?

0:51:19 Andrew: Like you know, when you say, "I did not have sexual relations," right, like now you've, you've sort of foreclosed yourself off on the wiggle room of, you know, is oral sex sex, sexual relations, seems like you know it's, that's pretty broad, uh, and um, repeated sexual encounters in the Oval Office doesn't seem to me like to be the kind of thing that you'd be like, "Oh, I just, I forgot about that. Sorry."

0:51:18 Thomas: That's pretty intentional yeah

0:51:43 Andrew: And you have to make the same judgment about Sessions here, right? So look, he can avail himself of two separate defenses here, right? He can avail oneself of the context defense. He can say, oh we were talking about campaign surrogates and I didn't meet with the Russians as a campaign surragate. I met with with them as a Senator. And that's what I thought I was answering. Um, you know, you gotta, that's, you

0:51:33 Thomas: Yeah yeah seems weak to me but

0:52:08 Andrew: Know that it, it, uh, yeah. Gotta make that judgment for yourself. Uh, or he could go and, and, his, his um, staffers have, have also suggested, uh, the, uh, kind of, oh, well, you know, can't expect me to remember every time I meet with somebody at a, you know, receiving line or something like that. Um, and and that's why I thought it was important the way in which Senator Sessions' colleagues behaved, particularly at the Heritage Foundation event, right, where they're all avoiding Kishlak like the plague. You know, is that something you're likely to forget? Is that something where you're unlikely to not be certain whether you are speaking as somebody who is a prominent surrogate for Donald Trump or just, oh, no, I'm sure Russians meet with the senator from Alabama all the time, like those Russian-Alabaman relations are, you know, crucial to their balance of trade.

0:52:08 Thomas: Yeah yeah. Yeah

0:53:03 Andrew: To me, difficult to prove intent. But, you know—again, I leave it to your judgment. It seems to me I would not—I'm not a criminal Defense attorney. But if I had a client in this situation, I don't know how comfortable I would be going to a jury with, ladies and gentlemen of the jury, my client did, in fact, meet with Russians and lied about it. But but when but he didn't really lie about it, because when he was meeting with the Russians, he was He was meeting with them as a representative of the United States and not on behalf of the Donald Trump campaign, even though all of his public appearances since 2015 have been associated with the Donald trump campaign. That's a tough. Yeah.

0:53:03 Thomas: I I didn't know this idiot existed before he was a surrogate for the Donald. Yeah. So this is going to be the part of the show where we talk about the fact that nothing's going to happen and and he's going to get away with it. So my question now, I'm done asking what, how do we, you know, get this guy charged with perjury, and I'm done with that. I'm just going to frame it as, so how does Jeff Sessions get away scot free on this?

0:54:11 Andrew: Yeah, because somebody because of prosecutorial discretion. Right. Somebody has to bring up the charge. George, it is.

0:54:16 Thomas: Yeah. Describe the process of exactly how justice will not be served in this situation. That's my new my new question for all these Trump-related malfeasances.

0:54:30 Andrew: Well, the person who would the person who would have to sign off on an investigation into whether Jeff Sessions committed perjury is Jeff Sessions. How about that?

0:54:39 Thomas: Well, but really? I mean, there's nothing that says he has to delegate that to somebody else?

0:54:45 Andrew: What what must happen in order to deprive him of that authority? Congress has to authorize the appointment of a special prosecutor or otherwise direct the Department of Justice.

0:54:57 Thomas: Yeah, there we go.

0:54:58 Andrew: And so, yeah, Yeah. Until that happens, you know, I'm I am sure that that Jeff Sessions is carefully reviewing the file and considering the legal standards and decides like, boy, this Sessions guy really seems like there might be a case for perjury. And look, like, if it were the other way, right, like I could, I do not mean to suggest in what we've said here that it is a slam dunk case for Perjury, right? It's not a slam dunks. And I think we've tried to be fair about that. But it is very clearly not a spam dunk the other day. Way, right, it is, it's as good a case as a willful intent case gets, uh, in this sort of context, you know. Could I imagine better evidence? Yeah, I could imagine better evidenced, but this is really good evidence, um, and, uh, you know, that, but, but, no, he's

0:55:11 Thomas: Yeah. Yeah, yeah.

0:55:48 Thomas: So should we be pressing? Should Democrats in Congress be pushing for this special prosecutor? Is that a have a good use of time and energy. Well, yeah, I know. But, but oftentimes the answer from, you know, from, from wet blanket, Andrew Torrez is meh. It's not going to do anything. Nothing ever does anything. So I'm, I'm glad to hear that something could do something. That would be good news.

0:55:56 Andrew: Yes. Yes. Yeah. Yeah.

0:56:15 Andrew: I, I mean, I just think, is if this were any other member of the Senate at any other point in time, there would be some sort of disciplinary proceedings to take place, right. It's just it is of either party, right? It is, it is a matter of institutional corruption. And, and I'm kind of shocked. I mean, there is sort of a systematic view by the Trump administration that is put into effect that basically says, well, anytime there's a judgment call, ultimately the judgment call is going to rest with Congress, and I've got control of Congress, so it doesn't matter, right. And so in cases that range from, like, there is not, it is, to make an argument for Jared Kushner requires you to be either willfully ignorant of the law or deliberately obfuscatory, right. Like, that is a clear violation of the anti-nepotism statute. You know, this is not as clear as Kushner, but it is certainly.

0:56:31 Thomas: Yeah. Yeah, I like that. That's a new, that's a New phrase.

0:57:20 Andrew: Yeah. Clear as Kushler.

0:57:21 Thomas: Now new saying not as clear. Yeah.

0:57:22 Andrew: There we go.

0:57:24 Thomas: It says clear as Kushner that he's violating this law. Yeah perfect.

0:57:27 Andrew: But it's pretty bad.

0:57:28 Thomas: I like it. Yeah. Hashtag clear as Kushner.

0:57:29 Andrew: So there we go.

0:57:33 Thomas: So, yeah. So I guess final question to wrap this up. Does any of this affect Trump? Like, even in the worst situation, let's say it becomes there's an investigation becomes clear. He met with Russians. Let's even say just hypothetically, I know this, this, this is all hypothetical, everyone, so don't, don't think I'm saying this, but let's see. It even becomes clear through testimony or something that they were colluding, like Sessions and the Russians were colluting. Let's say that happens. Does any of that, even in the most dire of circumstances, or I guess for us, the best of circumstances, circumstances, does any of that really get back to Trump, or does it not, as long as he kept in arm's length from all of it? Does it, does not affect him? What

0:58:13 Andrew: I think eventually what happens in these situations, how I would put it in historical context. The investigations into Watergate took the better part of a year with respect to Richard Nixon. Now, some of that is technologically based. You know, the world is a little different than it was in 1973. But some of it is sort of the cumulative weight of the evidence changing minds and sort of breaking through a partisan barrier. And remember that in 1972, Richard Nixon was reelected in what was at that time the largest landslide in American history over George McGovern, right, who won his home state in the District of Columbia, and that's it, right? Right. So you were talking about a monumentally popular president who just dispatched a monumentally incompetent Democratic challenger one year into his second term. And, you know, well, and when you consider that that Watergate was about ensuring right, right, it was about breaking into Democratic Party headquarters. You know, the comparisons to Trump, I think, are sort of well founded in that case. Right. Like it.

0:59:11 Thomas: A screw up, yeah

0:59:26 Andrew: Nixon could have, could have beaten McGovern without committing any crimes. But, you know, he just sort of couldn't help himself. And it, so partisanship was certainly not on the level that it is today. But it wasn't zero back then. Right. I mean, there was still a high level, there were still the same sorts of underlying politically that we have today. And, you know, eventually the kind of the weight of everything sort of broke down. And I would say that, you in my view, don't know that this needs to happen, but it strikes me as not implausible that at some point somebody connected with Trump is going to look at the situation if the situation is as we suspect.

0:59:26 Thomas: Yeah

1:00:12 Andrew: Right. That there is, you know, evidence of Russian collusion with Donald Trump to influence the outcome of the 2016 election, particularly if that's combined with bribery of Donald Trump. At some point, somebody is going to look at that and have a conscience. Right. Like it. Maybe that makes me hopelessly naive. Yeah, maybe. Yeah. No, that's fair. But at some point, you know, to look at it and go, I am hurting my country. I am poised potentially to take the fall so that a billionaire can get richer. At some point I kind of feel like, you know, nobody engenders that much loyalty, you know,

1:00:35 Thomas: I disagree but anyway yeah yeah all Right, well, there's, the, there you have it. That was an awful lot of yodeling updates, um, but this one, something, this one is a little, a little yodling up the mountain, maybe, maybe, potentially. The first three issues, however, were not, but there you go. All right, thanks, Andrew, for breaking that down for us as usual, and we'll go on with the rest of the show.

1:01:18 Clip: He who questions training, only trains himself at asking questions. What?

1:01:26 Thomas: Patron anthany fortier asks I think you've talked about it, but I have no idea what cert is. And he spelled it in both C E R T and S E R T. I believe it's C ERT. Is that right?

1:01:26 Andrew: Yeah, that's

1:01:42 Thomas: Okay. Good.

1:01:42 Andrew: Right, and uh, why don't you, why don't you take a crack at this one right before, uh, we, we look at the bar exam answer.

1:01:47 Thomas: Is it trying to gets seen before the Supreme court or, Oh,

1:01:51 Andrew: Yeah, it is. It is short for writ of certiorari. And it is before the Supreme Court or any other court that has discretion whether to hear your case or not. Yep, so.

1:02:01 Thomas: I see. OK, that's why I was asking. Yeah. Yeah, I wasn't sure if it was always just the one, the Supreme Court. But, yeah, it makes sense. You're trying to get cert as in, get your issue heard by the whatever court has jurisdiction over what you're looking at.

1:02:03 Andrew: Yep right and most state Supreme Courts these days are cert courts, which mean that you get one appeal as of right. And then you have to convince the state Supreme Court that they want to take your case, that it is presents a novel or unsettled question of law or, you know, is otherwise of significant importance for the for the court to take it up. To the Supreme Court. You add to that, those are valid criteria. You also add to that, we've talked about this before, if there is a split among the circuits, right? So for example, in last week, OA 51, we talked about the interpretations of Title IX and the Civil Rights Act of 1964 in terms of the meaning of the the word sex in those statutes, right?

1:03:05 Andrew: And about half the circuits say sex includes sexual orientation and gender identity. About half say the other way. So we call that a split among the circuits. And it is sort of the paradigmatic case of where you want the Supreme Court to take a case and say, "No, no. The Ninth Circuit has said Title IX means yes. The Fourth Circuit has said Title Nine means no," and the answer is, you whatever. Um, so, so, yes.

1:03:34 Thomas: Yeah. So they should grant cert. Right. Is that the right. OK, good. Just I'm trying to use the trying to used the lingo in the right way. So that was a good question, and we knocked it out. And by we, I mean mainly you. But I knew what that meant. I just, you know, it's certiorari or whatever. That's such an awkward word. I was never sure. You know, I wouldn't be too confident on how to spell that one is all.

1:03:37 Andrew: That is exactly yeah, they're granting the writ. Yeah, yep.

1:03:58 Andrew: Tuesday.

1:04:01 Thomas: So that's it for that question. Yeah, that seems pretty easy. Let's go now to thanking our new patrons on on new patron Tuesday, one of my favorite days. Uh, and there are Zach Halepeska, Justin Harris, Ryan, Ryan Kirby, Jesse Simmons, Heath Rensink, uh, and Jide, at, well, that's a tough one. Jide Agibola. And then you get all the easy ones as usual.

1:04:11 Andrew: Yeah, and and Thank you to Snake Oil, to Wrong Verb, to Philip Starner, Trish Baron, Bird Law Extraordinaire, Maxwell Demonic, and F. Akename, I think, fake, fake name, there we go. Uh, nice, nice job. Thanks to all of you for, uh, pledging and supporting the show. We really, really appreciate it. Couldn't do the show without you.

1:04:51 Thomas: Absolutely. And you know, we're not that far away from another Law'd Awful Movies. So find that over on patreon.com/law.

1:05:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:06 Thomas: All right. Time to find out if I'm an idiot savant or just a normal savant. Let's see, let's find out

1:05:12 Andrew: All All right. TTBE number 15. This was the question about police lineups. So, uh. Elderly woman was mugged and robbed on a public street. Uh. Victim only saw the assailant's eyes. Uh, he was covered by a hooded sweatshirt and bandana. Uh and then And while the victim was waiting to be interviewed, she saw the defendant being escorted through the courthouse in his prison orange and restrained in leg irons and handcuffs and said, oh, yeah, that's the guy. Will the court allow that identification into evidence? We had four options.

1:05:51 Thomas: This one was really hard, man.

1:05:52 Andrew: Yeah, you picked D, which says yes, because the witness recognition of someone is all that is needed. The reliability or credibility of it is subject to cross-examination. Um, you passed over, uh, answers. You know, you passed off. Right, well, that's the answer D. You passed offer answers B and C, which I think, uh, again, you're doing a good job of kind of filtering out, um, obviously untrue answers. So B said no, because prior statements of identification are considered hearsay and never allowed into evidence, and I think you rightfully, uh, looked at that said the "never" land, and that doesn't seem right. Uh, C was yes, if the witness perceived the perpetrator by seeing his eyes and made the identification on that basis, it was reliable enough to be admitted. Um, and I think I I chuckled when reading that one, and uh, you passed

1:06:04 Thomas: The right answer. Yeah.

1:06:24 Thomas: That didn't sound right.

1:06:41 Andrew: Over that answer.

1:06:41 Thomas: That's a tell. Yeah.

1:06:42 Andrew: Um, you, also ignored answer A, but but thought about it, which was no, it's not reliable enough. And there was too much of a suggestion to make a reasonably accurate identification. And unfortunately, yeah, it is a, I know.

1:06:50 Thomas: That was a really yeah, is that it, I knew it, it should have been that, yeah.

1:06:59 Andrew: Don't think your analysis is bad in the abstract, right? Thinking about about the difference between, uh, admissibility and, and reliability. Um, but here, um, there's also sort of the due process consideration involved, right? So, um it is very, to parade a potential, uh defend, to parade the actual defendant, uh in front of the eyewitness while wearing the blaze orange in shackles, um, is highly prejudicial. And so, yeah, uh-huh. Yeah.

1:07:12 Thomas: Yeah.

1:07:27 Thomas: The it's funny, right, when you read the question this second time, in my mind I said, "That's too prejudicial." And I don't know. And that was like, I think I picked the wrong answer. That sucks. Okay. Man, so close, but wrong. Yeah. So close yet the opposite of correct.

1:07:36 Andrew: Yep. So I, it'S a tough question. Um, we have, what, 185 of these left to go. So I think, yeah, you just rattle off a little bit of a win streak here. No, I think you analyzed the question correctly. And, you know, look, the bar is hard. You're doing great. So,

1:07:51 Thomas: I'm sure I'll get all those right. Yeah, yeah, yeah. Darn it. I should have known that. Oh, well. So what am I eight for? I hope I'm eight for 15.

1:08:10 Andrew: You're 8 for 15. You were still above water.

1:08:11 Thomas: Okay, barely, barely above half. All right, right, well, I guess now's where you'll have to tell us who was so much smarter than me this week.

1:08:16 Andrew: Yep. Yep. A lot of our followers on Twitter that you were right, including longtime supporter, friend of the show, Hethrar, that's at H-E-A-T-H-R-A-A-W-R, who says, "Thomas wins. D is right because it's a jury's job to decide how reliable witnesses are, even though they're bad at it sometimes." Times, um, good, answer, uh, followed you, uh, but sadly, uh, wrong, uh, so, uh, this week's winner is going to be at Kith Cannon, K-I-T-H-K-A-N-N, our friend Carl A. Earl Jr., who says, "I hate it when Thomas always almost says the right answer. If Sam Waterston taught me anything, this is textbook Book Tainted ID answer."

1:09:10 Andrew: Is a, that is correct, Carl, and I hate it too when Thomas almost says the right answer. So give him a follow at Kith Canon and remember, you too can play along with Thomas Takes the Bar Exam.

1:09:24 Thomas: That is all we have time for, uh, otherwise we'd, you know, have me get another question wrong just for the fun of it, but now we don't have time. We'll have to wait a while to see when I get the next question wrong. Thank you for listening. Thank you for being so much smarter than me in the bar exam, as always. Thank you, Andrew, for providing such great insight week in, week out. And I guess we'll have to say see you on Friday.

1:09:54 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.