OA70: Donald Trump & Obstruction of Justice - Are We at the Peak of Yodel Mountain?

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 70. I am your host, Thomas Smith. That over there is your other host, Andrew Torrez. How you doing, Andrew? I am as well. I want to talk about a little bit of a change we're making since, you know, 99.100% of the content, is the good ideas are Andrew's. I had a good idea. I'm going to brag about it. I was so tired of us being behind on the news because Trump's pace of creating just obnoxious newsworthy stuff is so fast. It's so relentless that we were struggling to keep up with the way our recording schedule is. So now we are doing Thursday night's episode. That is Friday. It's essentially Friday's episode, depending on your time zone. But that episode will now be recorded Thursday. Thursday, and then it's going to make it a real tight turnaround for me.

0:01:26 Andrew: Great, Thomas. I'm super excited about today's episode. No,

0:02:14 Thomas: But it's it's OK. It's the least I can do, because I just want us to be able to respond right away to some of these absurd news items that because really, I mean, maybe maybe in a few years we can reexamine this, depending President Pence, once he you know, he'll be a bit of a slower news cycle. We'll see could take our time. But I'm very excited for this change. You're hearing it today day because we've got a fantastic interview for you with Professor Randall Eliason, who is going to help us evaluate whether or not Trump is guilty of obstruction of justice. And he's got the expertise to answer that question. Very excited for this because we're delivering just the most timely, expert, relevant information information now, and I think it's really going to help us all out. I'm excited. I've excited as an OA listener, personally.

0:02:27 Andrew: I think Well,

0:03:02 Thomas: So that's going to be cool. So let's do it, Andrew. Let's get over to our first segment of the day. Our listener questions might be a little bit abbreviated because we've got a real whopper of a main interview, as I said. But

0:03:15 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.

0:03:33 Thomas: We're really having to drill down today on whether or not we're at the top of Yodel Mountain or anywhere near the summit. Can we see the peak of Yodle Mountain? Or is it a false, maybe it'll be a false peak and there's actually a higher peak.

0:03:41 Andrew: I I think We're We're at the, yeah, we're at the point where the, uh, studio audience has inhaled sharply because the yodeler is moving up the mountain very, very, very quickly, and the question is, is he about to fall over the top? I will

0:03:58 Thomas: Yeah, can the yodeler keep it up? That's another question. So, Andrew, Sean Spicer would not deny that Trump is secretly recording White House conversations. And that's a great thing to want to do. Trump is doing his best to, you know, minimize comparisons to some other president. I can't think of who who. Gosh, there's some other President who did this. I think he ran. I think He had two successful terms. He was just a saint of a guy that we all revere to this day. Who was it? Maybe my history is a little off.

0:04:31 Andrew: I will point out, if you are not following the Nixon Presidential Library on Twitter, you need to add that, uh, to your list, because they are tweeting out with some regularity, uh, news items with the hashtag Not Nixonian, uh, so

0:04:47 Thomas: Like oh, like, I like my thing from last week, not even Nixon did this, like that kind of thing oh great

0:04:48 Andrew: Right exactly yeah no I want to, we need to collaborate with them on, uh, opening arguments slash not even Nixon shirts. Um, so yeah, so the question here, a couple folks asked about this, um, if Donald Trump is secretly taping conversations, does that constitute, you know, high crimes and misdemeanors, uh, subject to the caveat of high crimes and misdemeanors are whatever the Congress says they are. Um, it's, it is clear, um, different states have different thresholds for, uh, what you need to do to get consent to record somebody. Uh, in Washington, D.C. it is D.C. code section 23-542, uh, you only need the consent of one party, which, you know, presumably the person doing the recording also consents to recording, uh, I mean, I guess you come up with some wacky, uh, scenarios where, uh, you know, a third party, I guess, like Russian spies come in and record both sides without, without their consent.

Uh, but if you're in Washington, D.C., uh, you, it is a defense to the crime of illegal wiretapping to say that one party to the conversation consented to the recording. So, uh, standing alone, the, that the fact that Trump is alleged and

0:04:52 Thomas: Oh gosh yeah true yeah

0:06:04 Andrew: That Sean Spicer does not deny that he is secretly recording White House conversations isn't a crime, as weird as it seems.

0:06:16 Andrew: It doesn't look good, but oh, yeah, this is a president who's really concerned about, you know, whether he looks like he's violating the law or not or violating longstanding norms, as we will learn in our forthcoming interview.

0:06:14 Thomas: But it, uh, doesn't look it doesn't make you look great yeah right right well you know what, it didn't work out so well, for Nixon, I'm sure it'll work out for Trump. I'm sure it would be a great idea that for him to secretly tape people. I'm surer it'll be fine. It won't be, who, actually, let me bring up, I saw a great either tweet or someone made a point. It's all blending together now with how much, you know, media I'm having to consume on all this. But someone said like, oh, strategy, recording your conversation, Trump, which is more likely that, you Comey, the most careful person like in existence, said something that incriminates him, or that you blabbed and said something that's going to obviously incriminate you. So it's like I would take that sort of Russian roulette of let's let's record us and see who commits a crime first.

0:06:30 Andrew: You yeah yeah yeah This is a good moment for, do, do we have a click from, you know, Madden Football from the late 90s of, let's go to the videotape, because I agree with you that's, let's go to the videotape and

0:07:16 Thomas: Yeah yeah all right, and with that said, let's go to the videotape of our, except not, let's go to our main interview with Professor Randall Eliason here.

0:07:31 Andrew: Yeah, so Thomas, what I thought would make sense, given the breaking quality of the news, would be to bring in an expert on obstruction of justice law. And in order to satisfy my own ego, I wanted to find not only an expert on the law, but the expert that was the most similar to me in every way possible. Uh, I want to welcome onto the show, uh, Randall Eliason. Um, he and I have a great deal in common, he is a, uh, a former, uh, Harvard Law School grad, so you know, somewhat tainted by Ted Cruz, but, uh, but still okay. Um, he's presently a, uh, professor, he teaches white collar criminal law at my undergrad alma mater, G, uh, George Washington University, GW, uh, go Colonials.

0:08:19 Andrew: Uh, not only that, but, uh, back in the late 80s he actually worked for Zuckerman Spader, where, uh, listeners will know, yeah yeah exactly the the evil, the evil universe version of me, uh, right right, uh, but, but, uh, most relevantly, I, I want, I want to just highlight two things, and I don't mean to embarrass our guest, but has two credentials that really kind of jumped out at me. And the first was he's a former AUSA. He was an assistant U.S. attorney for the District of Columbia and was chief of the government fraud public corruption section. Right. So he has specific experience on these kinds of cases. And also, I tweeted out a couple of days ago after we released Tuesday's episode on Trump's firing of former FBI Director Comey, a link to Professor Eliason's blog, which is called Sidebars, which has a tremendous name. And it is just

0:08:25 Thomas: So it's just you with a mustache is basically or something like, yeah, it's like a soap opera where there's a, you just have a little tiny a goatee thing that, yeah.

0:08:28 Randall: Exactly. The

0:09:24 Thomas: Oh,

0:09:24 Andrew: Sidebar's blog, S-I-D-E-B-A-R-S-B‑L-O-G.com. And he wrote a terrific article that is very much in the opening argument style entitled, Did President Trump Obstruct Justice? A Prosecution analysis. Yeah, that that really, you know, it takes the same kind of nuanced approach that that that we try and do, which is to say, it's really, really easy to be outraged and sort of look at the conduct and say, you know, we have an established pattern and practice that screams out to everybody on our side and lots of folks in the middle, uh, boy, this looks criminal and this looks bad, but, um, how does that come into play in the real world in terms of the requirements, you know, the statutory requirements, uh, and how a prosecutor would go about, uh, proving a case against Donald Trump for obstruction of justice, so

0:09:39 Thomas: Perfect. Perfect.

0:10:18 Thomas: Excellent.

0:10:18 Andrew: Uh

0:10:18 Thomas: So we're going to get to the bottom of all that finally, and we're going to have the good info as people trust us here to do, not theory stuff. So the real info, I'm

0:10:21 Andrew: Exactly Welcome to the show, uh, Professor Leisen, uh,

0:10:31 Randall: Jason. Great. Thank you very much. Thanks for having me. I'm a big fan. It's a thrill to be here.

0:10:35 Thomas: So, Randall, we can just fire at you a series of things Trump did eventually see what sticks, you know, like, OK, did this constitute obstruction of justice? This. What was the, if we go back chronologically, I suppose, Andrew, what the basic firing of Comey? I guess when he, when he admitted to Lester Holt and I think SNL did a great job of parroting that. If you guys didn't catch that, where he admitted to Lister Holt that he did it because of the Russia investigation and on SNL, Lester Holt was like, Oh, did I get him? Is it over? Is that all done? So I guess let's ask you too. Professor Eliason, is it over? Did we get him on admitting that? Oh, darn it.

0:10:42 Randall: Right.

0:10:56 Andrew: Yeah. Yeah. Yeah.

0:11:13 Randall: No, I Don't think so. So I think What's really important and the point I was trying to emphasize in my article is to distinguish between kind of obstruction of justice in the broader sense, where it's very commonly used, and kind of thrown about the narrower sense of actually a violation of a criminal statute of obstruction. I think a lot of the talk that's been going on about the president recently kind of refers to be violating all these norms and traditions that we have about separation of powers and the independence of the FBI, and the executive branch doesn't, or the president doesn't interfere with FBI investigations, things like that. And so there's a sense of, you know, concern or outrage about a lot of these actions kind of violating all of these traditions and norms that we've had for a very long time that are important to, you now, respecting the justice system and making sure that there's no question about political interference with investigations and things like that.

0:12:16 Randall: But that's different from the actual crime of obstruction. And the actual crime is pretty tough to prove in a lot of cases. So I think actually what you would analyze is not any one incident, but kind of the pattern. And see if this series of events sort of amounts amounts, uh, cumulatively to the president actually corruptly trying to influence, uh or, you know, torpedo this FBI investigation. So when I started writing about this the other day, the big event was the firing of James Comey. And then the day after I published the article, then the story breaks about the, the uh, the memo and the, and the meeting with Comey, where he allegedly, uh the president.

0:13:00 Thomas: Oh, yeah, that would be question number two, because he asked, allegedly asked, might as well ask it. He asked Comey to stop investigating Flynn, right?

0:13:01 Randall: Yeah, Significant development. Yeah.

0:13:11 Andrew: Just go back and answer the question? Because I think you've hinted at it, but I don't know that we've got a full answer on the record of, if the only fact we had was directing the firing of James Comey, supported by the Rod Rosenstein memo that we talked about on Tuesday's opening arguments, and, you know, kind of all of the atmospherics around that, plus the admission to Lester Holt on the air that essentially that he, that Trump fired Comey because of the investigations into Russia, what's your view on whether that meets the standard for obstruction of justice? Us

0:13:53 Randall: I think that would be really tough as a criminal case. And even though Now, that may sound surprising, but the reason is that the key to obstruction of justice, a criminal case, is proving the defendant's corrupt intent. So often the observable actions are pretty clear, right? We know he fired – we know he hired Comey. We know what he said to Lester Holt. Those things are not really in dispute, but what ends up being in dispute is the state of mind of the – in this case, the president. And you have to prove – it's not just enough to prove that what they did would have the effect of hindering the investigation somehow. You've got to prove corrupt intent, which means they set out with that purpose, with the wrongful, purpose of interfering with this ongoing investigation.

0:13:56 Andrew: Okay, yeah.

0:14:37 Thomas: My gosh. Is Trump the perfect criminal because he's just no explaining What's going on in his mind? You can, can never get him. Well, he had to have the intent. Well, who knows what he was. Intent, nobody knows, he's a frazzled mess of intentions. Wow, is that why he can get away with everything? Might

0:14:42 Randall: And, well, it's kind of funny, actually, one of the things that the White House is saying in the wake of the story about the memo, the meeting with Comey, you know, Comey recorded saying, the president suggesting, I think, I wish you could let this go. Oh, he's a good guy, Michael Flynn's a good guy. One thing they're saying is, this is just the way the president talks, right? I mean, it was like an offhand remark, this is the way he talks. He wasn't trying to, you know, direct to stop any investigation, he was just stating his view that Flynn's the good guy and he hopes nothing happens to him.

And, you now, actually, that's kind of a defense, right, I mean, because what they're really saying is he didn't have the corrupt intent to thwart the investigation, he was just talking the way he always talks. And maybe without a proper appreciation for the fact that when you're leader of the free world and the FBI director's boss, there's really no such thing as kind of a casual offhand comment, if you're talking about a particular investigation and how it might be interpreted and how it might violate all these norms and traditions about not interfering with investigations.

But it may well be a defense that he wasn't thinking about Thor in the investigation. He was just talking the way he always talks. So that question of intent is so often the key, and it makes a lot of white collar cases so challenging, because you're trying to prove what's going on in someone's head, right?

0:15:28 Thomas: Work. Uh, is

0:16:16 Randall: So how would we do that? And in this case, you take a lot little bits of circumstantial evidence and you try to put together, this is a classic analogy is, you know, each little piece is a brick, right, and we're going to use all these different And finally, when we're done, we build a wall where we can look to the jury and say, look, there's no reasonable doubt.

0:16:34 Thomas: Mexico paying for it, or no, do

0:16:39 Randall: You know, you try to assemble these little pieces of evidence and put them all together and say, look, there's really no reasonable doubt what was going on here.

0:16:47 Andrew: How important is it, uh, in your experience, in these cases, for the defense to have a coherent counter narrative right? Like, in other words, it you can dispute each individual piece of evidence with, oh, well, you know, when he said, uh, Flynn's a good guy, that's just how he talks. But But then, you know, you layer onto it the brick of, of Trump asking Comey for his loyalty, right? And how do you explain that away? And in other words, is there, yeah, exactly,

0:17:16 Thomas: All the defense's stories have to add up about each individual thing to a coherent narrative, or can they get away mit just, uh, ad hoc kind of explain, like, casting doubt on each event, I guess. Well,

0:17:19 Randall: Back. Yep. Yep, I mean, you know, the thing about a criminal case that that also distinguishes it from the kind of broader political realm of, you know, obstruction in the broader sense, is of course the government has to prove every element beyond a reasonable doubt, and the defense doesn't have to prove anything, right? So all they have to do in in the defense case is sort of sit back and and poke holes and try to raise a reasonable drought realistically in the minds of one juror, right? I mean, it obviously helps if the defense has kind of a coherent narrative alternative explanation, but they absolutely don't have that burden. But I mean, you would expect in a criminal case against someone like the president, you know, obviously they're going to have top flight legal defense team, and they would have a good coherent narrative. The same

0:18:10 Thomas: Is Trump I don't know

0:18:11 Andrew: Same top flight team that he's dispatched out to the Northern District of California and Hawaii.

0:18:11 Thomas: Yeah, right.

0:18:17 Randall: Well, yeah. But you would expect that to have a pretty coherent defense line.

0:18:19 Andrew: Know, yeah, you would. But I mean, we did a two part episode, you know, sort of dating back to the USFL. And, you know, in the 1980s, that in which Trump sort of bowled ahead with, you know, kind of a New York trial lawyer, you You know, sort of real classic New Yorker type and insisted on taking that antitrust case to the Southern District of New York where in front of a jury of, you know, that was comprised almost entirely of, you know jets and Giants fans as opposed to taking it to say the District of Baltimore, which you know you may recall was sort of reeling from the Colts leaving town under cover of darkness.

0:19:07 Thomas: So he, it's more like he hires his friends and people who probably have given him pledges of loyalty, by the way, which he views as more, more, uh, more substantial and more important than than competence, seems like.

0:19:08 Andrew: Yeah, right. Yeah. Yeah,

0:19:14 Randall: Well, I could return a second to to the question of the if I

0:19:22 Thomas: You're like, I don't know how to deal with any of that. Let me go. Sure, yeah.

0:19:27 Andrew: So

0:19:27 Randall: Can return to the Lester Holt interview, because I think that's interesting, too. There was a lot of commentary after that happened, and op-ed writers and things like that, people saying basically the president just admitted obstruction of justice because he said, "I was thinking about the Russia thing when I fired Comey."

0:19:43 Thomas: How often do you get a a case where, because you have to prove intent, you get someone going on national TV and saying, you know what I said to myself when I made this decision? Like, it couldn't be a more clear statement of his frame of mind, but it still doesn't quite get us there.

0:19:59 Randall: But Here's the thing: saying that he had the Russian investigation in mind is not the same thing as saying that she was intending to obstruct it. And And that might sound like kind of a weaselly, lawyerly thing, but I, I think it's really important, because what the defense could say is, yeah, I had the Russia thing in mind, I thought he was screwing it up, I thought he's doing a really bad job, he lost the confidence of the FBI, and the only way to make sure that that investigation was concluded properly and efficiently, which is what I wanted, by the way, as I said later in the same interview, was to replace him and put someone in there who could do a better job. So saying, I had The Russia thing in mind.

0:20:36 Thomas: Well, but what was the precise quote? Because he said, you know, there's really nothing to this Trump-Russia thing. So that was part of it too. Like, so, that would be a hard case to make, wouldn't it? Sorry.

0:20:44 Randall: He said it's a fake story or something like that. But I think it would be pretty easy for the defense to say he may have fired Comey because he was upset with the way the Russia thing was being handled. That's not the same as saying he's trying to torpedo the investigation. In fact, he wanted someone else in place who could do it properly and maybe see that Trump's right, that it was a fake story, if that's true. In other words, removing Comey doesn't necessarily thwart that investigation. And in fact, realistically, it probably doesn't. I think the FBI acting director now has said that on Capitol Hill. It's like, it's not going to have any impact. If you remove the director, you don't really impact any one case. So it's, it's not crazy for the defense to make an argument that I had the Russia thing in mind.

0:20:50 Thomas: Yeah.

0:21:37 Randall: That was one of reasons I fired him because I thought he screwed that up like he screwed up so many other things and it would be better for the FBI to get him out and get someone in there who could handle that investigation properly.

0:21:48 Andrew: So the argument would be, when I said I had the Russia thing on my mind, what I meant as President Trump is Comey isn't conducting that investigation vigorously enough. Enough, and if he does a better, if someone is involved who does a better job, that will exonerate me more quickly, and that's what I was thinking is that, that's sort of the argument from piecing together the statements, yeah?

0:22:12 Randall: Statements, yeah, I think so, yeah. I mean, and you know, again, all they have to do is try to negate this idea of corrupt intent, because the immediate inference is he's doing it to kill the investigation and there's... there's a reasonable counter-argument. He says, no, he was doing it to help the FBI and make the FBI a better place. And when that happens, that investigation, like all the other ones, will be done better and more effectively. And that's what I want.

0:22:13 Andrew: Right.

0:22:39 Andrew: So Now you run smack up against the memo though, right? Like that, that obviously contradicts, uh, the evidence that's going to be introduced that says

0:22:47 Thomas: Yeah, talk your way out of that one, professor.

0:22:51 Andrew: Mm-hmm.

0:22:51 Randall: Re- I'm, I, I'm just realistic about the burdens that prosecutors face. Um, when you got to convince 12 people unanimously beyond a reasonable doubt about what was going on in someone's head, and the best evidence what was going on in their head is, you know, their own statements, and they're going to disagree with your theory, right? So how, how do you overcome that, that burden, um

0:23:11 Thomas: Want to make a Simpsons reference here so bad, and I think it's opening arguments, so we have to. I think if you zoomed into Trump's head, it would be like Homer, where it just zooms into his head and then goes, da-da-da, da, hey, da da da, da. I I think that's all that would be going on inside his head.

0:23:12 Randall: I think

0:23:22 Andrew: Yep.

0:23:29 Thomas: Okay, obligatory Simpsons reference over. We can move on to the rest of the show.

0:23:26 Randall: Think I I Think The the the memo was a significant new piece of evidence. I mean, you know, uh, that, that, that really does help build the circumstantial case, because then the argument would be, look, he tried to get Comey to back off. It didn't work. So then he fired him. Right. And that's a pretty good prosecution narrative.

0:23:51 Thomas: Can I ask you, I don't know if this is your area, but how does a memo, something where somebody just wrote it down after the fact without a recording, we'll ignore that for a second, pretend there's no recordings, which I don'T know if there are or not, but just Comey going down, having a pattern of being someone who documents stuff, someone Someone who's careful with things. Is that enough to establish that fact of the conversation? Or are they going to be able to fight back against that and just say, well, you don't have any proof that this conversation happened?

0:24:08 Randall: Yeah, well, First of all, I think the practice is not that unusual. Andrew probably back me up on that. But, you know, writing a memo to file to record an oral conversation, if you think it's something important. That's not particularly unusual. I used to do it at the U.S. Attorney's Office. Not in the same kind of circumstances, but if there's not any other record of the meeting and you want to make sure you record for the file what happened because you think it might be important someday, you dictate a memo to the file. Right, and so I don't think that's that unusual um

0:24:50 Thomas: Oh, no, I wasn't saying it's unusual. I just have no, because I'm a layperson. I don't know how often like, is that just accepted as like, oh, okay, this is evidence because it's well documented. So we can just kind of go with that as what happened in the conversation, legally speaking.

0:24:52 Andrew: I Yeah,

0:24:52 Randall: Yeah well

0:25:04 Andrew: No, It's, it's a really, it's a really good question, uh, because I, I think what, what you're getting at is, uh, all of these bar exam questions are paying off. Uh, that memo is a form of hearsay, right? Like when you are introducing it, you are introducing a statement out of the mouth of James. And you're not putting Comey on the stand to say that. So introducing contemporaneous business records is an exception to the hearsay rule. And you follow the court in terms of admissibility will follow the much the same analysis that you just outlined, which is to say they will look at, is this a regular occurrence? Concurrence, you know, is this, you know, kept in the ordinary course of business and, you know, in Comey's case and in most lawyers' Cases, uh, this is a standard kind of practice, so, you know, I don't think I, I I Think

0:25:55 Thomas: Do you think they would be able To fight it and blur the lines? Well, he's writing down from, you know, his memory of the conversation. Trump said it was more like, you know, this, you know, he kind of can blur the wording so that it doesn't sound as bad for them.

0:25:56 Andrew: Yeah,

0:25:57 Randall: Yeah,

0:26:07 Andrew: Look, they will try and challenge the admissibility of that document, but, uh, I Don't, I Don't think That will Work

0:26:11 Thomas: Oh, okay. Well, so that you put it that way, though, is it, is it either, or is it either this is admissible or not versus like it's admissible, but now let's, let's try to, to maybe blunt the, the power of it and try to maybe cast some doubts on it, you know, like, okay, you

0:26:13 Andrew: Yeah, Right, and That and that fits into the same analysis, which is once it's admissible as evidence, then certainly, you know, you're free as the defense to, you know, dispute or characterize the significance of it.

0:26:33 Thomas: Can, you can, okay gotcha.

0:26:39 Andrew: Sir.

0:26:39 Randall: From that, you do, you would expect that your best evidence would be Comey testifying himself, right? So you'd have, you'd have Comey Testifying about what happened during the meeting. And then the memo becomes important. If anyone challenges his recollection, you Now that even if it's not a business record, it's what past recollection recorded, right? I mean, if there's some challenge about whether he's remembering things accurately, then the memo becomes important for that as well. But your first avenue would be just put Comey himself on the sand, what happened during this meeting, even without the document. And the document then is just support. If his recollection is challenged, you say, well, I wrote it down. I know it's two years ago or whatever by the time you go to trial, but I wrote her down at the time. So that's how I I remember, but to your, to your other question, Thomas, absolutely. You can challenge the document by saying, well, that was his recollection or that's his version of events. That's not accurate. You know, uh, he wrote down the way he heard it, but what really happened is this.

And, and in a situation like this, the other reason that even that memo is not sort of the bombshell that makes this a slam dunk case is so much depends on, you know, tone nuance, nuance, you know, the exact wording that was used, you know, was this really, and Terp was a set in, you know, if it's set in a menacing way, you know, like, I hope you can make this go away, then, you know, then that's one thing.

0:26:52 Thomas: Okay. Okay.

0:27:11 Thomas: When?

0:27:57 Randall: If it's kind of an offhand comment, oh, he's a really good guy, I hope he gets out of this okay, that's a different thing. And so a lot depends on subtle aspects of that meeting, not just the precise words are very important, but also things like nuance, tone, tone, body language, how Comey interpreted it, all those things become relevant.

0:28:19 Andrew: Just, just a follow up question on that, one of the arguments that you raised on your blog, that would be kind of a threshold argument raised by the defense here is whether an an unofficial secret investigation being conducted by the FBI into, quote, the Russia thing, counts as a proceeding for purposes of the statute. And I think, go through the arguments with respect to, you know, whether that counts as a proceeding

0:28:48 Thomas: Do you mean that?

0:28:48 Randall: Ahead.

0:28:48 Thomas: There's some question as to whether, what is, I don't know, it sounds like just an investigation to me, but you say proceeding, is there, there's something that you're saying that's not true, some question is to whether that even counts as something you can obstruct? Oh. Oh. I wouldn't have even thought of that.

0:29:00 Andrew: Yeah. Yeah.

0:28:59 Randall: Yes. Yes. The, because the statute uses the word preceding, has a specific meaning And it includes things like trials and grand juries and official agency investigations by federal agencies and congressional hearings. But typically just an investigation, that's not a proceeding.

0:29:18 Andrew: So you you might be anticipating my my next question, which is now that acting attorney general with respect to the Russia thing, Rod Rosenstein has appointed a special counsel, Robert Mueller, to continue the investigation. Does that rise to the level of a proceeding for purposes of the obstruction statutes?

0:29:41 Randall: Investigation alone, again, I don't think is going to qualify, but what will qualify is the grand jury, right? Because like the FBI investigation, these things are typically going to be done in conjunction with a federal grand jury, that's how you get the subpoena power, that's why you gather the evidence and put the witnesses under oath, right? So the proceeding, that's usually the way these cases are usually charged and people talk about obstructing the grand jury investigation, or the FBI investigation, but usually what they mean is obstructing the grand jury investigation that the FBI was working in conjunction with the prosecutors on. So the grand jury is the actual proceeding, the investigation itself.

0:30:22 Andrew: Okay.

0:30:23 Thomas: What's the, the ultimate, your ultimate opinion on that as to whether, so does it still count for that reason?

0:30:29 Randall: Well, I think the theory would have have to be. And this is not an unreasonable theory at all. The prosecutor's theory would be the president was trying to obstruct the grand jury investigation. Because the only reason to fear an FBI investigation, really, is because it might lead to a grand jury indictment. I mean, the FBI by itself can't really do anything to you. They can investigate.

0:30:30 Thomas: Okay. Okay.

0:30:51 Thomas: Or get or a stern talking to at a press conference, but that's a, yeah, okay.

0:30:55 Randall: Yes. But, you know, Unless they're working – I process usually is they're working with federal prosecutors and a federal grand jury if it's a criminal investigation, ultimately maybe leading to an indictment. So the reason you want to obstruct them typically is because you're worried about being indicted. And so it's kind of a technical legal thing, but it's important. You do have to define the actual proceeding that's being obstructed. Like to say there's no such thing as obstruction in the air. You know, you can't if you just like shred your documents randomly, know, that's not obstruction of justice unless prosecutors can pick an identifiable proceeding that you had in mind when you did that, that you were trying to obstruct. Now, it doesn't even have to be pending yet. It can be a proceeding that your expecting to begin. You know you're expecting a grand jury to be impaneled.

0:31:44 Thomas: Well, that's a relief because it was sounding like you really had to be specific and like you you were thinking of a specific thing happening right now, but it, so it could be a potential future investigation investigation or proceeding I suppose

0:31:48 Randall: But yes as long as the but the government does have the burden of proving that that was on the defendant's mind at the time that he had engaged in the obstruction, our recent example of this is the Bob McDonnell case, and if you guys have covered that or talked about it, but you know, the governor Virginia and his wife, she was convicted of obstruction of justice, uh, for this this kind of elaborate where the businessman had given them all these expensive gifts and had given her some gowns worth thousands of dollars.

And when the investigation sort of began, she set them up, packaged them up and sent them back to him in a box with a note that said, as we discussed, I'm returning these to you so you can donate them to charity or maybe give them to your daughters and, you know, advertise them as having been worn by the first lady of Virginia.

And and the guy that gave him to her said that was a complete ruse uh never they never had an understanding to get them back and heard his daughters were size zero and the gowns would have not fit them, you know, so the whole thing was made up, um, and the jury convicted her of obstruction of justice for that, and the judge threw that out because the government charged that when she did that, she was trying to obstruct the grand jury investigation that indicted them, but they didn't prove that she knew that grand jury investigación was going on or was anticipating it. And in fact, it hadn't started yet. And so she was obstructing the kind of Virginia state police investigation and initial inquiry into everything that was happening, but they didn't prove the actual proceeding that they charged her with obstructing. And so the judge threw it out.

0:31:58 Thomas: Okay Okay.

0:33:48 Andrew: Does that kind of put Trump administration on sufficient notice of, you pending future proceedings that, such as to constitute either an existing or contemplated future proceeding for purposes of the obstruction laws? I mean, do you think that covers it?

0:34:04 Randall: It? Yeah, I think even just the order itself, just the existence of a special counsel. I mean the only way really for him to do the job is with a grand jury, right? Right. I mean, because how else do you that's how you get the subpoena power. That's how You get the power to bring the witnesses in and put them under oath and testify. You know, so I think just the virtue of the fact that there is a special counsel, everybody's on notice that even if it hasn't been formally opened yet, there's a real potential of a grand jury proceeding in our future.

0:34:13 Andrew: Okay. Yeah. Yeah.

0:34:33 Randall: And and again, really, the only reason to obstruct what he's doing is to head off being indicted. Right. Short of that, short of that. What can you do to you?

0:34:33 Andrew: Yeah,

0:34:40 Thomas: What is the grand jury exactly? Again, is that before an indictment, or okay. Well,

0:34:44 Randall: Yeah. So in The in the federal system and in a lot of states, the criminal process is kind of two steps. You for any felony in the federal system, you have to be first indicted by a grand jury, which is a group of regular citizens, like, like a trial jury. Here is basically the prosecution side of the case primarily and vote to find whether there's probable cause to bring the charges. So the standard is only probable cause. It doesn't have to be unanimous. They have to have at least 12 grand jurors out of 16. They need 16 for a quorum. So it doesn't have to be unanimous, the finding is only probably because it's basically a charging decision. So the grand jury isn't deciding guilt or innocence. They're just saying, the government's got enough evidence here that we think there's probable cause that this crime was committed, and it's appropriate to bring this person into court and have them answer the charges. So that all takes place – that's all the pre-indictment stage. Yeah,

0:35:39 Andrew: And if I can jump in, Thomas, the other crucial thing about a grand jury is you as the prospective defendant do not have a right to appear before that grand jury, and the proceedings are secret, right? Right. So essentially what it's doing, you may, you may recall we talked about the coroner's inquest in our Law'd Awful Movies. Yeah. When we were doing Double Jeopardy, that would it would require him to kill someone first.

0:36:04 Thomas: Let's have one of those on Trump. I

0:36:10 Andrew: So that might be a bit of a challenge or not. I don't know. I'm expressing no opinion on that either way. But it's but but the grand jury is is essentially a more serious version of that. That it's ex parte But the the defendant isn't advised of the proceedings that takes place, you know, without the defendant's participation and without the defendants.

0:36:10 Thomas: Don't want to go too far down the rabbit hole, but is is it the kind of thing where you have to find 16 people who live in a cave that don't know, like, who the president is, and who does there, is, is there a requirement that they not, you have prejudice against the defendant, or, you know, how does that work? Is there jury selection for that?

0:36:29 Andrew: Right. Yeah. Yeah, yeah.

0:36:30 Randall: Defense.

0:36:44 Randall: There's a selection to be done on the grand jury. It's not as stringent as for a trial, and the grand jurors are selected by a judge typically. Um, but of course, you know, certainly they probe, they'd want to keep anybody off who has any specific or clear biases, um, but

0:37:03 Thomas: Good luck. Yeah. The people the people who are let's find 16 people are kind of on the fence about Trump, like could be good, could be bad.

0:37:11 Andrew: Oh, you could get you could give 16 really, really bitter Bernie bros who haven't given up on it. Right. Like who

0:37:16 Thomas: Right. It's good. You're going to have to.

0:37:18 Andrew: Hate who hate Trump and Democrats equally.

0:37:19 Thomas: You know, You're not going to get anything done because they'll just want to go on a rant about how this is all Hillary's fault because she should here to let Bernie run or something. You're not even going to get a chance to do it.

0:37:20 Andrew: Right. The grand the grand jury has has returned a finding of no TPP, no TPB. Anyway,

0:37:33 Thomas: So what's the overall conclusion in obstruction? Because it sounds like even this memo, the Comey, I suppose, memo about him asking Comey to stop investigating Flynn, it sounds Like you're saying even that can't really prove that that's obstruction.

0:37:50 Randall: Well, I don't think any one piece proves it beyond a reasonable doubt for a criminal case. And if you were going to actually bring a criminal case, of course, you would have the ability to use a grand jury, a different one, to investigate a possible obstruction. And you could bring in witnesses and put them under oath and get documents, and maybe you'd develop additional evidence, and you would be able to prove that this was, in fact, the president's corrupt intent.

But I think the broader sort of point is thinking about this as a criminal matter right now is not really the right way to think about it, I don't think, because is a sitting president for one thing, and the sort of weight of authority is you can't indict and prosecute a sitting President. The Constitution provides a remedy for criminal acts or misconduct by a president. It's called impeachment, right? Then when it comes impeachment, Now you're not bound by the strict requirements of a criminal statute. That's why I talk about this obstruction in the broader sense of kind of violating all of our norms of separation of powers and non-interference with investigations. Things like that can form the basis for impeachment, even if you think, if I took jury and had to prove the criminal crime, the criminal charge of obstruction, I might not be able to get over that hurdle. But for impeachment, that doesn't matter because that's more of a political proceeding than a criminal or legal one. So exactly.

0:38:39 Thomas: Hooray, Paul Ryan has to save us, right?

0:39:17 Thomas: We've covered on the show extensively, Andrew has told, and I was surprised to find out impeachment is whatever Congress decides. I guess high crimes and misdemeanors are whatever Congress decided they are.

0:39:27 Randall: Yep. I think it was Gerald Ford who said that an impeachable offense is anything the majority of the House thinks that it is on any given day.

0:39:33 Thomas: Oh, Great, is this another quote that Andrew has stolen that turns out belong to somebody else? What about that time you said, I'll defend the right, death to the death, you're right to disagree with Andrew, was that not yours as well? No, Inside OA joke.

0:39:41 Andrew: Great, I I'm sticking by that one. Yep.

0:39:48 Randall: I Um, what about the priming the pump, was that, was that yours?

0:39:49 Andrew: Yeah, Without, without pumping the prime, exactly. Um, so, uh, something that is literally just breaking now, uh, on CNN, I'm going to link in the show notes, uh, is that, Michael, uh, Flynn has announced that he's not going to cooperate with the Senate Intelligence Committee subpoena requesting, it's a subpoenas, do says, take them, requesting documents regarding his interactions with Russian officials. And then what the committee chairman, which is North Carolina Senator, Republican Richard Burr, says is General Flynn's lawyer said he would not honor the subpoena. And that's not a surprise to the committee. But we'll figure out on General Flynn what the next step, if any, is. Um, so a couple of questions that I wanted yeah right so I think the first question is, is it really an option and and how so for the a witness and subject of a Senate Intelligence Committee's investigation to just decide not to honor a subpoena? Uh and yeah well

0:39:51 Thomas: Nice.

0:40:30 Thomas: Wait, that's an option? You can just not?

0:40:49 Randall: No, not really an option. So we'd have to have some kind of a valid claim of privilege, right, to withhold them. And the one that leaps to mind as possible, I suppose, is executive privilege. Exactly.

0:40:58 Thomas: White privilege. Oh, okay. Sorry. So you

0:41:03 Randall: Depending on when these documents were created and exactly what they're asking for, I don't know if he's going to claim executive privilege, that he can't turn them over.

0:41:02 Andrew: It

0:41:10 Thomas: Can't just say no, like, sorry,

0:41:12 Randall: No, you can't just say no.

0:41:12 Thomas: No thanks. Okay, good. Thank God. Well, you know, you don't know these days because as you alluded to early in our recording, everything that's not bolted to the floor in terms of like, rules and traditions and all that stuff has been thrown out with Trump, so you just never know. I wouldn't have been surprised to learn, oh yeah, you could just not cooperate and there's nothing you could do. It's just no one has ever done that until Trump.

0:41:14 Randall: No.

0:41:26 Randall: Now, he could try to assert some kind of privilege. Like I said, maybe they're going to say executive privilege. There is something, I'm sure Andrew's familiar with, active production privilege. Sometimes you can say just by turning over these documents, I'm admitting they exist and that incriminates me. And so I've got a Fifth Amendment right not not to comply with your subpoena because complying would be implicating my incriminating myself. So, you know, but he can't just say no. He's got to have some kind of legal basis and then they'll fight about it in court. And if he loses and still refuses to turn them over, then he's subject to punishment for contempt of Congress, which is not just a moral attitude. It's also a crime. He's got a Fifth Amendment privilege not to testify. And he's asserted that as far as I know. But, you know, he can't just ignore the subpoena. He's had to have some kind of valid privilege claim. And if the Senate disagrees, then they'll they'll have a hearing and fight it out.

0:42:26 Thomas: For I guess I didn't think Think about that Fifth Amendment thing. So like if they subpoena you for, you know, that document where you wrote, I am guilty, you know. You can be like, well, Fifth Amendment. You could, if something, it definitely proves your guilt, you're able to say like, this is, I have a Fifth Amendment right not to do this.

0:42:27 Randall: Right.

0:42:36 Andrew: But that's well

0:42:41 Randall: It's more subtle than that. Maybe it's more down in the weeds than you guys want to get. But actually, if I wrote a memo that said I killed a guy, I couldn't be compelled to turnthat one over. Wasn't under any kind of compulsion when I wrote that from the government, right? The act of production privilege, it's a really narrower case where you're saying, I subpoena these documents from you about your contacts with the Russian government, and I can make an argument that just by the fact that I'm turning these over, I'm admitting that they exist and that incriminates me. I'm trying to have a good example, but if there's some kind of document that just the fact that you've got it would, it would implicate you in a crime, then

0:43:24 Andrew: Right. So in other words, it's not the content of the document itself. It's the fact that it exists.

0:43:29 Randall: Fact the Fact that you're turning them over means you're admitting that I have them and that could be a Fifth Amendment problem, yeah, yeah, or the, yeah, or at the empty, empty bag with a dollar sign on it that the Russian ambassador gave you.

0:43:30 Andrew: Yeah.

0:43:33 Thomas: Like turn over your receipt for being a hitman for killing a guy or something. Yeah. Yeah, okay.

0:43:44 Andrew: But that's why, I mean, you might recall from a couple of months ago when Flynn was the target of the investigation, there was the discussion of granting him immunity because you can always get around the Fifth Amendment privilege by just saying, okay, yeah, uh, you have transactional immunity for any crimes that are described in those documents and then that vitiates the privilege. Right, now you've got to turn them over, because at this point, you know, nobody is really interested, uh, I think it's different than, you know, a month and a half ago, where folks were interested in bringing down, uh, Michael Flynn. I don't think anyone's interested in that anymore. Um, oh, oh, good, good, tell me why.

0:44:03 Thomas: Wow.

0:44:21 Randall: Well, I don't know. I think it'd be premature to immunize him. Is really in its infancy. So there's political pressure to get to the bottom of everything. But realistically, they've got time, whether you're talking about now the special counsel or or Congress, to do a lot more investigation before they decide, oh, I've got to immunized Michael Flynn, who might turn out to be one of the significant bad actors. Right. So I wouldn't demonize the guy now.

0:44:45 Andrew: That's an excellent point. And I think, know, it sort of dovetails a lot with what we say, that if you're on the left, if you were anti-Trump and sort of thinking about, yeah, do whatever it takes to kind of get to the bottom of, we want to build this case against Trump. Trump, that I think I take your answer to be, as a prosecutor, from just a strategic perspective, you'd want to move along as far as you can uncovering facts without extending immunity to Michael Flynn. And then that might actually give you more leverage down the line if you're able to show that he's sort of truly one of the bad actors, and then be able to leverage that to, to to get Flynn to, you know, testify against Trump directly, or, or whatever. Is that fair a summary?

0:45:31 Randall: Summary? Or cut a plea deal instead of giving immunity. I mean, immunity is always kind of your last resort as a prosecutor, because It's kind of contrary to your fundamental mission. You're taking somebody you know committed a crime, and you're giving them a free pass. So you only want to do it if you've really got no good alternatives. And I think it's too early for them now to say, we can't possibly build this case without Michael Flynn's testimony. They might well be able to build it without him, or build a case against him and then get him to decide he'll plead guilty and cooperate. Or, you know, there's a lot of options on, on the table still.

0:45:34 Andrew: Yeah. Yeah.

0:45:36 Thomas: Yeah, makes sense.

0:46:03 Andrew: That's, that's really an excellent point. Thanks for making that. Think it's a fair characterization of, of what you said that prior to the appointment of Mueller as a, as a special special counsel, that were challenges. I mean, I don't think you're saying it would be impossible to prove obstruction on these facts, but that I think you've done a nice job of kind of laying out what some of the challenges would be in building that case. How does your opinion on that change, if it does, now of special counsel being appointed to continue the FBI's investigation into uh the Russia thing, as you put it?

0:46:39 Randall: Yeah, I guess I don't think that changes the challenges. It just sort of changes who is going to be confronting the challenges, right? I mean, at least we know now, which I think is a really good development, that going to have a special counsel outside of the regular internal Department of Justice chain of command. Looking at these things. But he's still going to face these same kind of issues that I'm talking about, but will also have the ability through the grand jury and the investigation he's conducting to try to develop additional evidence and, you know, see if there is in fact a case there. Those are challenges that would be faced by any prosecutor. Again, assuming they're even going to be looking at, you Know, this possible obstruction as one of of the, uh, things they end up investigating.

0:47:23 Thomas: We've talked about the fact that it's unclear whether you can even indict a sitting president. And it looks like the weight of, I opinion is you can't. But is this a question of they're going to do everything they can to get as far as they can to where I suppose you would indict? And then what happens then? I mean, is it just a question you're doing that to try to up the pressure enough to impeach the president? And then after the president's impeached, can they be charged with, whatever crime led to that? OK, until

0:47:52 Randall: Yes. Yes, so the, classic resolution would be, if you develop enough evidence of misconduct to justify impeachment, Congress can remove the president through impeachment, and once out of office, then like any citizen, he's subject to prosecution for any, for any crimes.

0:48:07 Thomas: Pence declares him, gives him immunity like

0:48:09 Randall: Yeah,

0:48:09 Andrew: Yeah, Pence would obviously pardon him. I mean, it would be exactly like, uh, Ford pardoning Nixon. Yeah,

0:48:14 Thomas: Nixon. Yeah,

0:48:15 Randall: Me. Have we seen this movie before? Yeah.

0:48:15 Andrew: Yeah, Um,

0:48:15 Thomas: Yeah. But. What happens to not to make it so that you can't indict him? Because I know it sounds like there's still a sort of an open question on whether you can do that. So do they go through up to that point and then someone goes to indict him and then what, a court stops him and says, I can't or something? How does that work?

0:48:33 Randall: I mean, there's never been a Supreme Court decision that says you can't. It's just been kind of the weight of academic authority. And it's the official policy of the Department of Justice Office of Legal Counsel, which is kind of the brain trust over at DOJ, that you can indict a sitting president because of his unique role as the unitary executive head of the entire executive branch. It would just be too much of a disruption to the constitutional system. If someone decided to indict him anyway, you know, if the special counsel chose to indict them anyway, then I would assume the president would go to court and say that that's an unconstitutional indictment and maybe we'd get a Supreme Court decision.

0:48:36 Thomas: Hmm. Oh, that'd be nice.

0:49:09 Randall: Yeah. So, but I, yeah.

0:49:10 Thomas: OK, thanks for clarifying that. I just wasn't sure how that worked.

0:49:14 Andrew: The the president's lawyers would would file a motion to quash, uh, whatever, whatever that indictment is on the grounds, uh, probably on the political doctrine, uh, grounds, because I mean, you'd have sort of a clear, you know, separation of powers issue. Um, and, and

0:49:26 Randall: Um, and then the interesting interesting thing then would be, I guess, you get the indictment thrown out or you just get it stayed, you get to get the prosecution stayed until the president either is removed from office or loses his next election, and then it can go forward you necessarily have to throw the case out, right? You could just postpone the prosecution.

0:49:27 Andrew: Uh, yeah, yeah. That's a really good point.

0:49:40 Thomas: That's interesting. Very interesting.

0:49:43 Andrew: Yeah. Yep. That's. That's an excellent point. Want to, yeah well, uh that's the, we're, we'll, we, we all in that boat.

0:49:46 Randall: Waters. Unchartered waters.

0:49:47 Thomas: Yeah, Uncharted Waters, the Trump presidency. Yeah, that's going to be there. Several Books written about this presidency will probably be called Uncharded Waters." All right.

0:49:54 Randall: Going on, right.

0:50:00 Andrew: Let me ask One more nuts and bolts trial lawyer question, which is: what kinds of evidence, in your mind, that are sort of potentially discoverable, that would move the needle for you in terms of saying, "Hey, now we're at a point where this is... this is really a no brainer obstruction of justice charge." And even though it's not going to go forward as a prosecution at this point, but it's enough that it's... it's likely to, cajole the the the Republican Congress into bringing articles of impeachment, just... just because that, you... you know, you, you just can't hand wave it away anymore.

0:50:00 Thomas: Uh,

0:50:41 Randall: Anymore. Yeah, I mean, I guess the best evidence would be witnesses to other meetings or conversations with the president where he discussed the idea that "I got to get this Comey guy out of there so that we can rid ourselves of this meddlesome prosecution," right? You know, I... mean, you'd hope for either witnesses or documents if someone was careless enough to put this in an email or something where the defendant, or in this case, the president, is to this, the corrupt state of mind that this is why I did this. You know how you're likely to get that, you know, not terribly likely, which is why these cases are often so challenging.

0:51:19 Andrew: But, but for you, the tipping point would be shaking loose an additional witness.

0:51:23 Randall: Yeah. Or, yeah. Or more than one, right. Someone else, someone else who heard the president, uh, say that this is why he was doing it. Right. My, my purpose here is to thwart this investigation because it's getting too close. I mean, if you were lucky enough to have someone who heard him say that, then then your own.

0:51:24 Andrew: Okay. Or Yeah.

0:51:35 Andrew: Great. Yeah, Well, no, that's, that's good. I mean, that gives us a touchstone to sort of compare against. In an ideal case there, that witness may not be out there. We may not, you know, that the, uh, investigation, you may not uncover or shake that person loose who, you know's, uh, presumably is, is probably pretty loyal to, uh, to President Trump. But, you know, we, we do that all the time, you know, in our discussion on the emoluments clause, you know, we talked about the paradigmatic case of, you know, if there's a, if there is a photo of, you know, a, uh, a Russian or, you know, Kazakhstani official handing Trump a big bag of money with a dollar sign on the outside of it, right? Like, yeah, you, you, you look for that. So, right.

0:51:39 Randall: Yeah.

0:52:15 Randall: That. You're not going to get that case, right? And I'm not saying you can't make the case without a witness like that. I mean, you certainly can build the case with enough pieces of circumstantial evidence like the ones that we've seen. But in a prosecutor's dream, I mean that's your ideal witness, right, someone else who heard the defendant admit that this was my state of mind.

0:52:19 Andrew: Yeah. Yeah.

0:52:35 Thomas: Thank you so much, Professor Liason, for, for helping us out with these really pressing and confusing questions. I know I can speak for a lot of the lay people out there who really just want to, want good info they can trust about, uh, about yodel little mountain, to use another OA inside reference.

0:52:54 Randall: Well, thank you. It's my pleasure.

0:52:55 Andrew: Thanks a lot for, for being on the show. Hopefully you'll come back and join us once the additional witnesses is uncovered. We'll have you back on for a postmortem.

0:53:03 Randall: Postmortem. I'd love to come back.

0:53:04 Thomas: Excellent.

0:53:05 Clip: He who questions training, only trains himself at asking questions. What?

0:53:12 Thomas: Jake, the fake Jake, asks about Trump's claim of absolute immunity as president from the lawsuit brought by, Nwonguma, I Shaw and Brousseau, who claimed that Trump incited violence at his campaign rally. Interesting. We've talked a little about this. I remember, I think you've mentioned the Clinton case where whether or not he was immune from, from a certain thing. So is that going to be the relevant case again?

0:53:20 Andrew: Guma.

0:53:37 Andrew: Yeah. I wanted and to handle this question after our interview because we discussed during the bulk of the interview that the Department of Justice is not going to criminally indict a sitting president for longstanding historical reasons, for separation of powers reasons. That does not apply to being served with a civil lawsuit. And that precedent was firmly established by the Supreme Court in the Jones versus Clinton case, which was the sexual harassment lawsuit brought by Paula Jones, which was settled by by Bill Clinton while he was president. Um, so there is no absolute immunity for the president for civil wrongs committed

0:54:00 Thomas: Right. Right. But is this, is this that if it's a, if it'S inciting violence?

0:54:22 Andrew: Yeah, yes, it is yeah, the inciting violence, this is a civil lawsuit requesting damages, right? This is not a potential criminal case, right? So yes, if you, uh, the damages are, you know, the medical bills and pain and suffering and yeah, all of that, right? They, they allege The allegations in the complaint are Donald Trump incited violence against them at a campaign rally, and then they got beaten up. And so, yeah.

0:54:25 Thomas: Oh, okay. Oh, Okay. What, what is the damages? I mean, they have to allege. Yeah. Okay. Oh, Oh, oh, oh. Okay, gotcha. Ooh.

0:54:50 Andrew: So those. That's

0:54:50 Thomas: Okay I'm sorry. I might've been confusing This with, I thought I might have confused this with the people who are trying to say that like the lock her up chants and all that. I was thinking in terms of Hillary, but this was, this was like protesters who he said, like, go after them. And, oh man, that seems like a pretty, I I Hopi is found liable for, for that. So, cause it seems like a Pretty, pretty good case.

0:54:52 Andrew: OK. Yeah. Go beat the crap out of them. Yeah, exactly. Right. Yeah so yeah I just wanted to clarify there is no absolute immunity from civil suit while you're a sitting president. And if you think about the public policy reasons. Right. You do not want the president to be hauled out of the White House in, you know, an orange jumpsuit and leg irons. Right? Like he's he's got it. Well, you Know, theoretically, Theoretically, you do do not want that. The founding fathers would not have wanted the Department of Justice to be able to to do that. And look, like you could, you could easily envision,

0:55:11 Thomas: All right.

0:55:30 Thomas: Do, do we not? Oh, you know, they weren't right about everything in those founding fathers. What do you got an originalist over here, Andrew, telling me they were right about all this stuff? All right.

0:55:42 Andrew: Yeah. That's true, uh, but you could easily envision how that power would be abused. Let's get, let's

0:55:51 Thomas: So, right, right.

0:55:51 Andrew: Let's Get Our Buddy Seth Baird Tillman back on to discuss That.

0:55:54 Thomas: Right. So thanks for answering that. I'm, I'm glad. I hope that goes through because it really does seem like he's guilty of that, but let's get to our favorite segment of the week, which is of course, top patron Friday. Doesn't get any better than top patron friday. Well, I say that, But new patron Tuesday is close. It's an eternal argument between those, those two things, and everyone wins.

0:55:54 Andrew: Okay. Oh, they're really good they're both really good. But yeah, Yeah. Thank you to our Hall of Fame patrons. Thank you, Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful podcast, Steve Sigmund, Jim Grove, Amanda Lipnack, Heather Loveridge, Geeker 41, Sean Pity, Ian and Alley, Matthew Vernon, thank you to Violet Page Hall, Heath Enwright, Jeffrey Mainer, the Wayward Willis, thank you too, Detective Matthieu Maxson, to Dave Lovely, uh, thank you, Danny Baker at Combat Nonsense, thanks to Charone Frankel, host of the delightful podcast Habeas Humor, thanks to Squick Dick Finger, Ian Ryan, Matthew Hillier, Aaron Graddy, Brandon Smith. And thanks as always to TV is my girlfriend.

0:57:06 Thomas: And also, C6, Sarah Hunter, Ash Torsten, Skirv, Adopt a Homeless Pet and Oppose Declawing and Ear Docking, Philip Stromberg, You Are Here Sci-Fi Audio Drama, RJ, I know you're listening, Damien Ricard, pony up already. Rati, is it gonna, going to be Ratio because it ends at Rati maybe okay, so he, he maxed out the field there with his message to Damien Ricard. Oh, excellent.

0:57:24 Andrew: I love. Yeah, it is. It is radio. It is. Radio. I love the idea. And by the way, Damian Rickard is we're going to give him a new patron Tuesday.

0:57:40 Andrew: Shout out. Uh, I love the idea that we are, uh, part of, uh, folks are using us as a, as a vehicle for prank wars and settling arguments. In the office yeah, feel free, feel free to use your Patreon name to settle office disputes, uh, over at patreon.com/law. Yeah, that's

0:57:41 Thomas: Yeah, We're in a messaging service yeah absolutely and thank you. Stephen Boyd at DJ Empirical, 20 sessions in 15 states, sign up for this summer at campquest.org, Torsten, Torsten Pill of Prosperity Karma, JT Loves His Hubby Logan, Squaring the Strange, John Bodley Esquire, Kaylee Reiser, Sakashita, Fukasumi, Michael Schaefer, Reason Real Estate, The Electronic Frontier Foundation at EFF.org, TheNetSecHeathen, Jessica Wilson, Mark Smith, Thomas McCormick, dang, dang, Grifith, Frederick Alstromer, Reven, Michael Ropps, uh, Marissa Alexa McCool, Conrad Michaels and Zabby, thank you guys so much. That's, that's getting fun. I love the messages, messages during that. It's a fun segment.

0:58:18 Andrew: Yep yeah

0:58:42 Thomas: And now time for my heart to drop, to sink into my stomach as I attempt to answer a bar question correctly.

0:58:40 Andrew: Those are great and

0:58:50 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:56 Andrew: Okay. A dance student worked very hard to strengthen her legs, including performing additional activities such as leaping and bounding up multiple flights of stairs in her apartment building. OK, so she's leaping multiple flights of stairs in her apartment buildings while she was performing her exercises. One of the janitors in the building warned her that, quote, she was bound to get hurt if she keeps it up because there are problems with that floor. End of quote. OK, So janitor warns her you're bound to be hurt. Next sentence, you will be shocked given that there's a bar exam question after falling and breaking a leg due to the loose floorboard. She brought suit against the building owner. The building owner wants to testify that, quote, the janitor told me, quote. I told her that running too fast is dangerous and she was bound to get hurt. End of internal quote. Is the building owners statement likely to be held admissible? OK, so I realize a little

0:59:04 Thomas: I love the bar exam.

0:59:52 Andrew: Bit tricky here. Right.

0:59:52 Thomas: That's a little confusing. Yeah.

0:59:53 Andrew: So you have the janator says she was bound to gets hurt if she keeps it up because there are problems with that floor. Building testify that the janitor told me, I told her that running too fast is dangerous and she was bound to get hurt. Can the building owner, is the buildingowner's statement likely to be held admissible?

0:59:53 Thomas: Uh-huh.

1:00:12 Thomas: Okay. So it's like his version of the quote. He wants to get it in there

1:00:12 Andrew: Okay. Exactly. Right. So this is another hearsay question. Okay. So our options are: yes, because it is an exception to hearsay as a spontaneous declaration to an opponent party; yes, because the building owner can testify and be questioned about what the janitor told him; no, because it is irrelevant and immaterial; or no, because it is hearsay within hearsay, and there are no hearsay exceptions that apply. And you should not take my laughing as anything other than having to say the word hearsay three times in eight words, right?

1:00:16 Thomas: Okay, yeah. Oh.

1:00:43 Thomas: No. Yeah. Yeah. It's like a photocopies of photocops are permissible. Like.

1:00:53 Andrew: Right. Hearsay.

1:00:53 Thomas: That old bush.

1:00:54 Andrew: I I will say, because I feel like this is potentially misleading to you, um, hearsay within hearsay is, is a thing, right? Like that's, that's, that's a real thing. So, there you have it: A, exception to hearsay as a spontaneous declaration to an opponent party; B, yes, because the building owner can testify and be questioned about what the janitor told him; C, no, because it is irrelevant and immaterial; or D, no, because it is hearsay within hearsay and there are no hearsay exceptions that apply.

1:00:54 Thomas: Yeah. Oh. Oh.

1:01:21 Thomas: So I think that if I'm gonna, now the minute I declare that I'm eliminating answers, like, I'll probably mess that up as well. I can't wait. But B and C seem the most likely to me, unless I'm going to get screwed on D, because I just, I have no way of knowing whether that's true or not. Like, I so B, in the past, my legal knowledge has told me that, you know, dismissing it is a little extreme, like not allowing it to be entered, but allowing it to be entered and then having him be able to testify to it makes sense to me. But the, the only thing is, C was, it's not relevant, right?

1:01:56 Andrew: Yeah, irrelevant and imaterial.

1:01:58 Thomas: I'm, I'm a little worried because I doesn't, I can't imagine how that would make a difference in this case because him saying, keep it up and you'll, get uh, injured versus stop. What was the stop running or you'll Get Injured?

1:02:13 Andrew: So that the two statements are: one of the janitors warned the dance student she was bound to get hurt if she keeps it up because there are problems with that floor, and then the building owner wants to testify that the janiter told him, "I told her that that running too fast is dangerous and she was bound to get hurt."

1:02:31 Thomas: OK, that does actually seem quite material now that I think about it, because in his version of events, there's no knowledge that there's like problems with the floorboard. So I think that's going to be relevant. I'm I'm going to go with B because I hope that it's allowed and then he can testify to it, to its veracity or whatever. And I'm gonna go with D for that reason. If I get screwed on D, I just don't know what to say. Whatever. I'll accept that chance.

1:02:59 Andrew: OK. And if you want to play along with Thomas Eliminates Two Answers to the Bar Exam, you can do so on Twitter. We, when we announce our episode, quote this episode and retweet, and include with it your answer, sir, the hashtag, uh, TTTBE, and your reasons therefore, and we will pick an answer that is right or delightfully wrong or whatever strikes our fancy, and you will get unending fame and fortune, not guaranteed, by being the winner of Thomas Takes the Bar Exam.

1:03:31 Thomas: All right. Well, looking forward to failing another question next week. We'll see. Thanks And that does it for today's show. Thank you so much, Andrew Torrez, for being our expert as always. Thank Randall Eliason for giving us so much insight there. Do you want to hit his blog again? What was that blog address?

1:03:48 Andrew: His blog is sidebarsblog.com. We'll have a link in the show notes, but it is S-I-D-E-B-A-R-S-B-L-O-G.com, Sidebars Blog, that's

1:03:58 Thomas: Excellent. Thanks for a great week. I'm so excited about our new format. I hope it, I hope you were able to have quicker info, uh, more accurate and be more informed than you would otherwise be. It's, it's, that's what we're trying to do here. So very excited.

1:04:12 Andrew: That's Thomas voluntarily working much harder for you, so if you, if you, if you feel in some way that Thomas deserves your appreciation, I am sure you can find a way to demonstrate that appreciation. Awesome.

1:04:17 Thomas: Ah, thanks. Uh, thanks, Andrew. All right, guys, we will, you were talking, uh, you know, bar exam credit, right? Like extra credit points somehow that they were going to give of me? No. All right. We'll see you guys on Tuesday. Thanks for listening.

1:04:45 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.