OA119: Trump's Trans Ban (& More)

Transcript

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

0:00:01 Andrew: Today's episode of Opening Arguments is brought to you by Harry's Razors. To get the free trial offer exclusively for Opening Arguments listeners, just head on over to harrys.com slash arguments, that is H-A-R-R-Y-S dot C-O-M slash A-R-G-U-M-E-N-T-S and you will get a free trial offer. You should check that out. It's really good.

[0:00:24] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? John, are you a virgin? Withdrawn!

[0:00:41] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said.

[0:00:52] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the blah, blah, blah, blah, blah. Wow. You, sir, are a mouthful.

[0:01:07] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. Lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:40 Thomas: Hello, and welcome to Opening Arguments. This is episode 119. I'm your host, Thomas Smith. Out over there is your other host, Andrew Torrez.

[0:01:46] How are you doing, Andrew? I'm great, Thomas. How are you? Doing great.

0:01:49 Thomas: We've got so much to talk about today. We are going to talk about an interesting listener question involving the police turning over records to the defense. We're going to talk about the trans ban, that bit of news that we alluded to last week. So lots to go over there. And then we're going to talk about Trump's legal strategy at this point. So a little bit of follow up to last week's episode in a couple respects.

[0:02:14] All right, lots to do. Let's get to it. But he who questions training only trains himself at asking questions.

[0:02:23] What?

0:02:24 Thomas: So, listener question, and it is from Harry Phillips. Harry was reviewing an article about the Innocence Project and noticed this quote. At this point, for the first time, the police turned over the complete records from the case. And then Harry asks, Andrew, isn't there some law that says you have to turn over all the evidence to the defense, end quote. So he is asking, it sounds like he came across a quote suggesting that the police hadn't turned over evidence to the defense. And he's remembering, I think you've referenced this, that the state has to turn over everything. What's

[0:03:01] going on there? Is he right? Yeah. So here's the kind of the full

0:03:07 Andrew: Answer to this question. The prosecutor, the district attorney, has an obligation to turn over exculpatory or potential impeachment evidence against state witnesses to the defense under a series of cases. The first case for which this is known is a 1963 case called Brady v. Maryland. That's 373 U.S. 83. And then the second, the exculpatory evidence case, is from 1985, right? So the Brady case says if the prosecution, prosecution, comes across evidence that is exculpatory, that tends

[0:03:44] to show that the defendant didn't do it. They have to give you that evidence, okay? And I'm going to describe the conditions under which that happens. But look, that leaves a pretty big hole of what constitutes exculpatory right And so the later case is 1985. So 20 years after the rule from Brady was, well, what if we have evidence that suggests that one of our witnesses is lying? Do we have to turn that over and help you impeach somebody that we could put on the

[0:04:22] stand? And the Supreme Court in that case, U.S. v. Bagley, said, yeah, it counts as exculpatory evidence to be able to impeach a key part of the state's case against a defendant. Makes sense. And that case is 473, U.S. 667 from 1985. So here's the standard. The standard that you have to prove in order to prevail on a Brady violation is, number one, you have to prove that the prosecution suppressed the evidence. That is, that they had it, they could have turned it over to you, and they didn't.

0:05:09 Andrew: Available to the prosecution. It's something you could have figured out, right? Like if there is not active suppression, if it is not, oh, this came across my desk, I looked at it, I thought this is exculpatory. And then I said, nah, I'm not going to give it to them anyway. That's what you have to prove kind of as the initial. So that also leaves open, and there are cases to this effect, where if the prosecution ignored it because they just weren't thinking about it, They didn't realize it was exculpatory. That doesn't fall under the deliberate

[0:05:41] suppression rule. Okay. So test number one. Test number two, the evidence must be favorable to the defense, right? So it must be, like we just discussed, either exculpatory, it must go to the impeachment of a state witness, or there's another case it can go to mitigating the potential sentence. And again, same analysis apply. And then the third, and this is really the biggest aspect, is the evidence must be material. And that is defined in the case law as a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.

And that's really the key inquiry, because these Brady cases, what they do is they come up on in post-conviction relief. And we sort of obliquely address this in the Serial slash Undisclosed evidence that part of Adnan's request for post-conviction relief was arguing that there were Brady violations by the state. And if the court concludes, right, you can meet the first two criteria. Yes, the prosecution should have turned this over. Yes, it is favorable to the defense. But you know what? Wouldn't have made a difference. Your guy still would have been convicted. Then the court can decline to award relief. And relief is usually in the form, as it was in Adnan's case, of a new trial, right? So the courts

0:07:07 Andrew: Can say, yeah, no, the prosecution definitely should have turned that over, definitely would have helped your case. But you know what? Your guy was so far gone, it wouldn't have mattered.

[0:07:16] And now, what's the standard for that? That's a tough one. And that's going to vary from case by case. But you will see when you start looking at Brady cases, you will see hundreds and hundreds of cases in which

[0:07:34] courts have said, yeah, no, probably should have done that, but we don't think it would have made a difference. So you get

0:07:40 Thomas: Nothing. So it's not as though they have to turn over everything they have. It's just if it's going

[0:07:47] to be exculpatory, then they're supposed to. That's exactly right. And so in these Innocence Project

0:07:53 Andrew: Cases, I think what we're seeing is a situation where there's now serious doubt about right. One of the things that the Innocence Project really pioneered was the use of DNA evidence, uh,

[0:08:05] in, um, capital murder cases, right? People on death row, uh, and um, and so in those cases, you will often have, uh, police departments will fully cooperate, right? Like, you know, it. So you have a DNA test comes back and seems pretty clearly to exonerate somebody who is on death row, right? All the fingerprints at the scene belong to somebody else, right? And then the police might say, "Oh, hey, look, this is why we did what we did. Here's our complete file. Now we're turning it over." But there is no law that requires them to turn over the complete file from the beginning. And that was that disconnect. So I thought it was a great question.

[0:08:49] I thought it tied into our stuff and was worth exploring. Yeah, definitely. I know I've had

0:08:55 Thomas: Some confusion about that sometimes. It's easy to mix up. But there you go. Thanks for the question, Harry Phillips? I like that we're getting these detailed questions of listeners who are looking through stuff and noticing little legal things. It's really cool. I'm trying to do so myself as well. I think that's something that this show has helped a lot with,

[0:09:14] especially in times like these when indictments are being handed out like free toys at Christmas.

0:09:21 Thomas: Okay, well, let's get to our our main segment of the day.

0:09:28 Thomas: All right, time to talk about that trans military ban. What's going on? It was blocked,

0:09:34 Andrew: Right? Yeah, it was almost entirely blocked. The portion that was retained, which I will talk about in a minute, was the section of the ban that prohibited the use of military funds for sexual reassignment surgery. And I'll explain the reason for that in a minute. The opinion is Doe versus Trump came out Monday, October 30th. And this is another one of our preliminary injunction cases with which, you know, we're becoming so familiar because there's so many administration things to enjoin. This really is, I mean, I got to tell you, Again, not politically speaking. Everybody knows where our political biases are. This

[0:10:18] is not common. It is not usual to have this degree of judicial activity blocking executive orders and presidential directives as unconstitutional. So you

[0:10:31] may recall we initially discussed this in OA 100, and at the time I was fairly pessimistic. I'm going to talk – this is an area – and I said this is an area where I would love to be wrong. So far I'm wrong. I would love to continue to be wrong, and we're going to talk about what this opinion says. So first, this injunction was handed down by the United States District Court for the District of Columbia. So federal district court. The judge in the case is Colleen Kollar-Kotelly, pretty well-known judge, initially appointed to the bench by Ronald Reagan, elevated to the U.S. District Court for the District of Columbia by Bill Clinton. As far as I can tell, I think she's a registered Republican, but somebody who is respected, intelligent, not a lefty judge sort of by any means, I certainly think has been drifting leftward over the years as a lot of Republicans have kind of in response to the political landscape. But not something you can dismiss as easily as Trump sort of railing against the Ninth

[0:11:45] Circuit, for example.

0:11:46 Andrew: Right. And this appeal, the government has appealed. The appeal will go to the Circuit Court of Appeals for the D.C. Circuit. And soon as we know what they do, we will we will weigh in. The opinion is super long. It is 76 pages, so I will not attempt to go through all 76 pages. It falls into three sections, and I'm going to summarize really, really quickly the first two segments because they're not where the interesting discussion is. So the first section is about standing. The court confirms that the plaintiffs here, and there were eight individuals who were trans in the military who were the plaintiffs. One was named, and seven others were Jane and John Doe's. So court says, yes, you have standing, even though it kind

[0:12:36] of hasn't gone into effect yet. I mean, that was basically the government's argument. Okay. But the court said it did not have jurisdiction over Section 2B of their complaint, which challenged the sexual

[0:12:49] reassignment surgery, because none of those eight plaintiffs were seeking sexual reassignment surgery. Okay. So that would have been an advisory part of the opinion. That's why the court declined to exercise jurisdiction over it. So when you see that the court left a chunk of the trans ban intact, it did not do so on the merits. It did so on the basis of the fact that these plaintiffs couldn't challenge that because they had to have standing. They had to be anticipating or planning

[0:13:20] or in the process of getting the surgery. Well, it's interesting that they weren't able to include any plaintiffs that qualified. Yeah. I mean, all I can say is, you know, we've talked to individuals who are trans in the military and, you know, those people are terrified right now. So, you know, I don't want to overly speculate, you know, it was sort of important to get the case in and, you know, that the ACLU has really done its job here in large measure. So, but that is, I wanted you to understand that part of the rule. So that's part one. Part two rules in favor of the government and dismissed out a claim that, and again, I do not want to take credit as an Andrew was right here because I don't want to be right on this, but it dismissed out the plaintiff's claim for

[0:14:09] estoppel.

0:14:11 Andrew: And to estop someone is to stop them. I don't know why they use the extra E, although

[0:14:18] It just dates back to 13th century Anglo-Saxon. When you estop any party from doing something, what you say is your past behavior prevents you from changing your behavior right now. And usually the reasons for that, this is an equitable remedy. And the reason you would do that is because you've led somebody to believe you were going to do X. Against the government, estoppel requires you to prove four things. It requires you to prove, number one, that the government made a definite representation to a person or persons. Number two, that those person or persons relied on those representations in such a manner as to change its position for the worse. That is called detrimental reliance. Number three, that the entity's reliance was reasonable. And number four, that the government engaged in affirmative misconduct in changing its mind. What the court says here is that the the reason that the plaintiffs can't go forward with an estoppel theory is because the earlier directive did not constitute a definite representation to plaintiffs that they would be able to serve openly as trans individuals. Instead, and this is page 31,

[0:15:34] that the 2016 ruling was not a definite representation to any of the individual plaintiffs, but rather constituted a broad policy decision by the government that affected scores

[0:15:46] of individuals. So I want to highlight that because we've gone back and forth on the question of like, well, when the government says they're not going to do X, can you later turn around and and change your mind, and and this ruling sort of helps underscore in in the context of, you know, protecting in large measure, uh, transgender gender individual service members, it says, it reminds us that that's a hard, that that's a difficult obstacle to overcome. So plaintiffs lose on their estoppel claim. But then we go to the meat, which is the equal protection claim and the preliminary injunction that was granted saying that this directive is unconstitutional, violates the fifth and 14th amendments guarantee of equal protection under the law. We know the key analysis in granting a preliminary injunction is not just do we think the law inclines more one way or another, but does plaintiff have a substantial likelihood of showing success on the merits? And the court says yes. So that's

[0:16:48] A strong statement, right? So how does the court go through its equal protection analysis? First, what you you have to figure out is, are trans individuals a suspect class? And here, the court says yes for two separate reasons, right? And this begins on page 62 of the opinion. First,

[0:17:07] they say all of the suspect classes to which we have typically found some level of heightened governmental scrutiny have certain characteristics in common, right? So then the court says, although the court, binding precedent on this issue, it has taken notings of the findings and conclusions of a number of other courts across the country that have also found discrimination on the basis of someone's transgender identity is a quasi-suspect form of classification, and cites a couple of cases. But it really concedes that there aren't a lot of cases that say trans individuals are members of a suspect class. But what the court says is the same reasons that make other suspect spec classes worthy of protection under the law

[0:17:53] apply to trans people. Right? That is, have they experienced a history of purposeful unequal treatment, have they been relegated to a position of political powerlessness so as to command extraordinary

[0:18:06] protection from the majoritarian political process, uh, and do they have, this all strikes me as easily right, and do they have immutable distinguishing characteristics that define them as a discrete and insular group? Right. And so

[0:18:18] the court says, yeah, right. Like trans clearly fit within all of that. And then the court gives it. But recognizing that that's sort of blazing a little bit of new law, the court also gives a Hively type analysis and says the court is also persuaded that the directives are a form of discrimination on the basis of gender. And the analysis is it's the same but for causation, right? A service member who was born a male is punished by the directives if he identifies as a woman, whereas that same service member would be free to join and remain in the military if he was born a female, right?

Or acted in the way society expects males to act. So that seems a pretty clear violation of gender discrimination subject to intermediate scrutiny, right? And we've talked about this before. So that's why you have to answer that. In order to resolve an equal protection analysis, you have to figure out what bucket do you fall under, right? If it's rational basis, if you're not dealing with a fundamental right or a protected class, then the analysis of equal protection of the laws is the government must have a rational basis between discriminating between the

[0:19:27] groups of individuals.

0:19:28 Andrew: Rational basis almost always passes. On the far other end, strict scrutiny, if the discrimination is on the basis of race, is on the basis of prohibited classifications, if it's strict scrutiny, then the government must have a compelling governmental interest. It must use the least restrictive means available, and there must be no other alternative that is less restrictive that would accomplish the same goals. Strict scrutiny almost always fails. And then in the middle is discrimination on the basis of gender, which is intermediate scrutiny. And that standard is the government must demonstrate, quote, an exceedingly persuasive justification for its actions. The burden of justification is demanding and rests entirely on the government. And it must show that at least the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. So you see how it's really kind of halfway in between those two tests. And then applying that to the present

[0:20:37] circumstance, the court says we don't have that in this case, that there is no tight factual fit between the sort of lack of fact finding, the politics that went behind issuing the trans ban, And any kind of rational government objective such as cohesiveness

[0:21:04] in the military, or avoiding costs, or any of the other things that Trump identified in his tweet. So if you were to stop there, you might say, well, Andrew, why on earth were you skeptical about this back in 0810? I mean, this seems kind of like a slam dunk. And the reason that I was skeptical is because of what I viewed as an enormous roadblock is the Supreme Court's decision in Rosker versus Goldberg, 453. Of course,

0:21:35 Thomas: Rosker versus Goldberg. We all know that.

0:21:38 Andrew: I did talk about it in the episode, 453 U.S. 57, 1981 case. That was the case.

[0:21:44] And I talked about a couple of other cases. That was the case in which the Supreme Court upheld the rule that only men have to register for the Selective Service, right? So it was an intermediate scrutiny case. It was the same level of application. And the Supreme Court said, essentially, we defer to the findings of the military in connection with service.

0:22:10 Thomas: But does the suspect group part change it at all? Because it was intermediate scrutiny, but it wasn't dealing with

[0:22:16] a suspect class.

0:22:18 Andrew: No, it was because it was, it was differentiating between men and women. So it was on the basis of gender. It was discrimination on the basis of gender. And it's the same justification here for applying intermediate scrutiny discrimination on the basis of gender. And to Judge Kollar-Kotelly's credit, on pages 69 to 70, after going through the analysis, she says, the court needs to address some of the additional points

[0:22:45] made by the defendants. And then says, defendants cite a number of cases for the proposition that the presidential memorandum, quote, "is subject to a highly deferential form of review." Of primary importance as the Supreme Court's opinion in Rosker versus Goldberg. Supreme Court and Rosker expressly declined to hold that the intermediate scrutiny applicable to gender discrimination did not apply in the military personnel context. Instead, the court reviewed the particular facts before it and found that the district court in that case had not sufficiently deferred to the reasoned decision of Congress in the context of a particular military personnel related decision. So, unpacking that a little bit, the court says the facts of Rosker are strikingly different, strikingly as italicized, than those presented here.

In Rosker, the court noted that Congress did not act unthinkingly or reflexively and not for any considered reason when it passed the challenge policy. To the contrary, the court noted that Congress had studied the choices of one alternative in preference to another, and relied on the fact that the policy at issue in that case had been extensively considered by Congress in hearings, floor debate, and in committee. And then this is the conclusion. In other words, Congress had received extensive evidence on the issue and chose one of two competing alternatives. The Supreme Court found that the district court was quite wrong in undertaking an independent evaluation of this evidence rather than adopting an appropriately deferential examination of Congress's evaluation of the evidence. And then contrast that with here, where there

0:24:12 Andrew: Is no record. Court says the record at this stage of the case shows that the reasons offered for categorically excluding transgender individuals

[0:24:18] were not supported and were in fact contradicted by the only military judgment available at the time. So the court here, we've talked about distinguishing cases. This is an uphill battle. I will tell you that the Rosker decision

[0:24:31] is cited in dozens of cases for the parenthetical proposition of courts must defer to military on issues regarding service, right? That's how it's been interpreted. But this court has parsed it very, very carefully and said, no, if you're citing the case that way, that's not exactly what it stands for. Instead, what it says is that when you have a military issue and there are multiple sides and Congress has carefully engaged in consideration on the issue, then and only then it's appropriate to defer to Congress's findings, but not to the military's findings itself. This is an aggressive distinction of the case, is, is, I think a fair, is a fair way to put it. It is well reasoned, I don't know, uh, and and I

[0:25:21] I am not going to put myself on the line for prediction as to how it will be received by the DC. I really think it's going to be a close. Well, we all want you to put yourself on the line so that we can do an Andrew was wrong. I, I would put yourself on the. Well, I've already said I was wrong because I was not certain that you were going to find a district court opinion that was going to be able to get over Rosker in the way that this decision does. So I was already wrong about that. I want to continue

[0:25:54] to be wrong, right? Right. I, I, I, okay. So you're trying to be wrong. Uh, but, um, but, but to me, that's the linchpin question on appeal that what the, what the court of appeals for the DC circuit is going to evaluate and struggle with is do we defer to the military, uh, or can we second guess, uh, executive judgments about the military that are, you know, sort of ostensibly based in findings, But, you know, those findings don't hold up to scrutiny. Right. Because because that's really the issue with with deference. Right. Like they sort of going back and forth. If you have well found it, if you have well documented findings, you don't need deference. Right. You you just have the judgment. What what what the Trump administration wants here is deference because they want to say I'm commander in chief. I talked to the generals. The generals said get these trans people out of the military. Therefore, I got them out of the military. You got to defer to the military and you can't review it. Right. That's essentially the administration's argument.

[0:26:57] And so even though he's wrong about that, even though he's lying in general, like the military doesn't want to do this, really. But he can, there's no, there's no, like, I don't know, recourse

0:27:09 Thomas: For us, the public, or, or, I guess, trans people in the military, to say, wait a minute, you didn't actually represent that properly. That's kind of, it falls within the boundary of, now it's military business,

[0:27:21] and he's allowed to. Yeah. And I don't, I don't want to say there's, there's no recourse, but it falls under the same category. Remember

0:27:28 Andrew: When we talked about the fact-finding arguments that were raised with respect to the uh travel ban, right? And and and in the context of a rational basis review and said, well, you know, like all it has to be is rationally related, but this isn't rationally related because there was no fact and and

[0:27:46] And at the end of the day, what I'm saying is that that's a really, really hard argument to carry in court.

0:27:52 Thomas: Okay, so it's not as though there's nothing we can do, it's just if they have some plausible deniability or some, yeah, like some, some way to say, well, no, it is essentially related and there's been there's... there's rational and Mattis, right?

0:28:05 Andrew: Right. Mattis is the secretary of defense. And he says, you know, the institutional position of the Department of

[0:28:11] Defense is that trans individuals should not be in service. Right. And that, right. That's under under a deferential standard. That's probably all you need. And so. So in my view, that's what we're going to look for as the Court of Appeals for the D.C. Circuit tackles this. I assume that it will be on expedited review. So, you know, we may get a ruling in, you know, six weeks or so. I mean, that would be really, really expedited. But, you know, the government has reason to want to expedite this because the directive is now blocked. The injunction has been issued. So, and that is, you know, it's going to follow the same procedural course as the travel ban. So it wouldn't, wouldn't surprise me to see the Trump administration repeal that directive and issue a new one and start the whole process all over again. They've done that before. So, you know, we'll, we'll, we'll keep our eyes open. But, um, but obviously we know that this is, uh, this is an issue that affects, uh,

[0:29:15] people we know personally and, uh, and we're trying to take that lightly. Yeah, so I'm hopeful, but it sounds like no reason to be too terribly optimistic. Optimistic well you know look it's blocked And there's a good, there's a good decision going up to the DC Circuit, and the DC Circuit is not, it's not the Fifth Circuit, it's not the 11th, right, it's not a, it's not a circuit staffed with conservative ideologues, it's uh, there's a, there's a substantive, there's a substantial argument here backed up by an incredibly well-written district court opinion, uh, and you know that there's not a lot of good news coming out these days, so I want, so let's

[0:29:53] Let's all hope Andrew's wrong. Yes, exactly. And we can do when Andrew was wrong and trans people don't have to worry about their jobs if they're in the military. That would be awesome. Sound good? That would be the best possible outcome. Meet back here later. Let's do it. All right. All right. And break. Thanks for breaking that down, Andrew. Thomas, I have to tell you, I am legitimately excited about our newest sponsor, Harry's Razors.

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[0:32:55] will appreciate it you You will love this razor. How do you want to be perceived, you, today? The media image, I think, is pretty accurate. I'm a street fighter. That's what I am. You're more than that. No, I think I'm a street fighter. By the way, I think that's why Donald Trump and I get along so well. Donald Trump's a fighter. Great counterpuncher. So, Blanca, the good news is I did, with some doing, get you approved to fight in the second street fighter.

I did have to add a couple new clauses regarding travel. On the grounds that you are a terrifying monster. I'm going to be his wingman outside for the entire time. You seem to be doubling down. That's the normal course of First Amendment. All right, Andrew, I don't know. I guess this is a breaking down the law

0:33:36 Thomas: Or what? It's breaking down Steve Bannon's version of the law, maybe?

[0:33:41] You know what Brian will come up with for an intro for that?

[0:33:47] I can't wait. I'm going to tie in a culturally relevant thing. Steve Bannon's version of the law is like the upside down in Stranger Things. It's the law, but it's the upside down world law. I feel like Steve Bannon is from the upside down world. So now that I've made that a timely cultural reference here with Stranger Things season two out, check it out. Let's go on to talk about Trump's legal strategy, according to Steve Bannon. Yeah.

0:34:11 Andrew: So there are two articles that come out. As you point out, this isn't a classic segment for us to do on the show because it's got an overlap between law and political strategy. But I really wanted us to talk a little bit more about how Trump intends to fight back in light of the indictments that we talked about last week. And so there were two articles that I'm going to link in the show notes. One was from the Daily Beast. That was about Steve Bannon. The other, directly relating to that, was from The Hill, not exactly a left-wing outlet, in which, which is entitled "GOP Senators Dismiss Calls for Bills to protect Mueller

[0:34:52] from Trump." And it's exactly what it sounds like. Yeah. Right. So, so what's going on? In light of the Paul Manafort indictment, you asked me the question, right, what's Manafort's play here? And I told you that I think that what Manafort is doing is betting on Trump, is betting that his loyalty to Trump will carry him to the point where he can get a pardon, and that he's better off rolling the dice in that area than he is trying to get favorable treatment from Mueller. Well, and as

0:35:23 Thomas: You said, it's possible Mueller wasn't even interested in that. It's possible they're like, nah, dude, you're too corrupt, we're not going to let you get away with this, in order to get, you know, he probably thinks, and maybe Mueller thinks, just speculation, maybe he thinks he can get to Trump anyway, or it's not going to really affect whether or not he can find it in his investigation. You know, like you might not need his help. Yeah, yeah, no,

0:35:48 Andrew: That's right, and and there could be space in the middle, right, like Muller's willing to cut uh Manifort so

[0:35:54] much of a deal, but not enough for Manifort to to want to flip, based on and Manifort's, you know, he's an old guy,

0:36:00 Thomas: Older guy, so maybe he's thinking like, look, if I, if I don't try for this pardon, or if I don't go that route, I, I mean, no matter what my sentence is, like I'm spending the last years of my life in jail, it sounds like. So maybe he's

[0:36:13] swinging for the stars on that one. Yeah, that could all be the case. So Steve Bannon very publicly has said that he

0:36:25 Andrew: Wants Trump to take the fight back to Mueller. Oh, God. And the way it's reported in the Daily Beast is he spoke on the phone with his old boss, Donald Trump, on Monday and offered a message. Get yourself some new lawyers. A source said Bannon believes that Ty Cobb and John Dowd, we've talked about them previously. John Dowd, that's a really sad fall for me because the Dowd report was one

[0:36:50] of the first legal documents I ever read before law school. And it involved the open and shut case against Pete Rose. And he was vilified by Pete Rose and stuck to his guns and turned out to be entirely correct. Wow. I owe our patrons why I think the calls to put Pete Rose in the Hall of Fame are ridiculous. But leaving all that aside, Townsend's an older guy. Cobb's an older guy. Bannon thinks they're not aggressive enough. Now, I don't know who's aggressive enough for for Steve Bannon. Yeah. But but one of the things I just want to sort of flag this as a legal political tactic

[0:37:31] out here.

0:37:33 Andrew: Representative Ron DeSantis, Florida Republican, member of the House Freedom Caucus, right,

[0:37:39] so on the extreme ludicrous right, previously has offered an amendment to a spending bill that went through the House in August that would have restricted the scope of Mueller's investigation and prevented him from pursuing criminal charges for any conduct

[0:37:58] occurring before March of 2015. Okay. What would be the logic behind that?

[0:38:30] That was just as a private citizen. It's a, it's a crazy, because even if you go, right, it, it, say, say Trump is right, like, to say when it was perfectly reasonable for my closest confidants and associates to engage in laundering money. Yeah, yeah, so can you remind us, uh, sorry, I'm putting on you on the spot, but can you remind us, like, is there

0:38:55 Thomas: An official what is the official capacity Capacity of Mueller's investigation, like what is his like job statement? You know, what was he is he is he limited? And if so, how is he limited?

0:39:08 Andrew: Yeah, we included, I will re-include on this episode, the letter from Deputy Attorney and Acting Attorney General Rod Rosenstein appointing Mueller as special counsel. And that is order number 3915, appointment of special counsel to investigate Russian interference with the 2016 presidential election and related matters. Okay. And so what the acting attorney general says is, I hereby order as follows. A, Robert S. Mueller III is appointed to serve as special counsel for the U.S. Department of Justice. B, the special counsel is authorized to conduct the investigation confirmed by then FBI Director Jim Comey in testimony before the permanent House Select Committee on Intelligence on March 20, 2017, including, one, any links and or coordination between the Russian government and individuals associated with the campaign of President Donald Trump. So that, again, that's clearly within the scope now. Right. Any any links and or coordination with those individuals who are then associated with the campaign. So the fact that the coordination predates. Right. Like, I mean, are you seriously going to argue it would be OK for the Russian government to develop sleeper

[0:40:24] agents, insert them into a presidential campaign and then say, no, we're not going to investigate? Yeah, and not only that, I

0:40:30 Thomas: Mean initially too the first thing you read was the russian interference with 2016 election it's not as though you

[0:40:36] know they wouldn't have been preparing to do that earlier on. And you can know, you know, that's a, they, they do that the same way, uh, Joe Montana prepares his case in the body of evidence. Another lot of movies, 12 reference guys, check it out, patreon.com/law worthwhile. Yeah, I mean, it's, that seems so, that seems ludicrous, that seems like, like, very, uh, very superficial justification there for that amendment that he tried to do. Yep, and

[0:41:01] two, any matters that arose or may arise directly from the investigation. Right,

0:41:07 Andrew: So in other words, if they uncover something, uh, that leads them to a wholly unrelated crime, so long as it arose from the investigation, you're entitled to continue to pursue that. And I would point out, that's exactly what the special prosecutor, what Ken Starr did in the Bill Clinton investigations that led to his impeachment. Those were initially authorized to investigate the Whitewater land deal in Arkansas, and it led to all of the sexual harassment and Monica Lewinsky stuff. And nobody said, I mean, you may be able to find, I don't know, a couple partisan flag waivers, but Democrats did not say at the time, you don't have the power to investigate this. What they said was this is not consensual sexual behavior, should not be impeachable conduct, which I agree with. But there were no calls to – as far as I know, again, Dan Dan, our conservative listeners out there, correct me if I'm wrong, but I don't think that there was a concerted effort. And the reason that there wasn't a concerted effort is because, you know, you didn't have allies in Congress who were sort of looking

[0:42:22] to cover it up in a way as blatant as DeSantis. But hold on. Is

0:42:28 Thomas: Congress even allowed to do something like limit an investigation by passing

[0:42:35] a bill? Does that even make sense? You know, it's a great question

0:42:41 Andrew: On separation of powers. I think that the authority there, because here's how it would play out. Rod Rosenstein has statutory authority to appoint a special counsel. That is 28 USC Sections 509, 510, and 515. Okay, so his authority ultimately does stem from Congress, and Congress could pass a law that says 28 USC 509, 510, and 515, in the context of X, is hereby amended, clarified to provide that blank.

[0:43:19] Right, okay, and so that's how they would restrict the scope of the investigation, but you're right that it, it's seems weird, but okay. Yeah, yeah, um, and then, uh, there's a catch-all provision at the end that says any other matters within the scope of 28 CFR 600.4, um, and that is, uh, that involves the jurisdiction of a special counsel shall include the authority to investigate and prosecute federal crimes committed in the course of and in the intent to interfere with the special counsel's investigation, such as perjury, obstruction of of justice, destruction of evidence, intimidation of witnesses, and

[0:43:56] to conduct appeals arising out of the matter being investigated or prosecuted. So that's another aspect, right? Like in other words, to disprove If Manafort has made false statements to

[0:44:09] the FBI in order to prove – remember, that's what got Papadopoulos, right? In order to prove false statements to the FBI, you might have to go look at 2011 behavior, right? Right, right, so, uh, yeah, I mean, the idea of restricting it to pre, uh, to post March 2015 is flabbergasting to me. So, you know, keep that, this is an area, you know, one of the things that that we try and do, you know, with Yodel Mountain, we try and separate the wheat from the chaff and tell you what you should be

[0:44:40] you know, what you should be up in arms against. High quality Yodel, Yodel Mountain wheat. Oh, could we distill Yodel Mountain beer? Yeah, we should, we could start doing, let's hire, uh, what's his name and do like the Course commercials. Yeah, Yodel Mountain barley and just crisps. Yodel Mountain water, is that, what is that, Sam Elliott or something? Is that, yes, yeah, I think, okay, someone write up the script for that, we'll do it, we'll record it. Okay, so that's the, the offense, right, uh, figuring out mountain to the impeachment beer. Okay, there we go. Oh, that's, that's fantastic. Somebody is going to make Yodel

[0:45:21] now. So, so that's, that's sort of the offense. Can Can uh Congress curtail the scope of Muller's investigation? Um, but but then there are also sort of defensive options, right, which is to to say on Monday, after the Manafort and Gates indictments were handed down, Senator Mark Warner, not known as a bomb thrower, right, one of these Democrats that frequently comes under fire by

[0:45:50] the more progressive wing of the party, right? He's an establishment, middle-of-the -road, moderate Democrat. He's also the top Democrat on the Senate Intelligence Committee. And he publicly said what we need is to pass bipartisan legislation that protects the independence of the special counsel, which is to say protects Trump from being able to fire Robert Mueller. And his statement also said he wants bipartisan members of Congress to make clear to President Trump that, quote, issuing pardons to any of his associates or to himself would

[0:46:27] be unacceptable and result in immediate bipartisan action by Congress. And so that that, that seems pretty reasonable. Right. Like, we want to make sure you don't fire the guy who's investigating you. We want to make sure you don't pardon Manafort, thus giving him no reason to cooperate with with the with the Department of Justice, and and that you don't pardon yourself. And if you do, we'll interpret that as, it doesn't even say we'll impeach you, it just says we'll take that seriously. How do you think, how do you think that went over with the, uh, the

[0:46:58] the moderate, now, not the crazies, the moderate Republican wing of the Republican, oh, who, like, Paul Ryan or somebody. Now, like, uh, how about people who publicly picked fights with with Donald Trump, like Jeff Flake or Bob Corker? So I'm guessing they didn't support it. They didn't vote. Yeah, yeah, I don't know why not, but this was, I set this one up easier than a bar exam question. Um, but Bob Corker said, quote, "In response to this call, I can't imagine any administration taking a move like that," thus leading me

[0:47:29] to seriously question Bob Corker's imagination, like he's saying, like, oh, I'm sure it won't come to that. That's, that's literally their argument, right? Wow, so Corker said, can't imagine they would do that, that you literally

0:47:41 Thomas: Could, like, make the same argument the other way, like, hey, let's pass this because I'm sure it won't matter, so

[0:47:47] just pass it anyway, just in case. Yep, yep, Jeff Flake said there's no indication that

0:47:54 Andrew: Trump is going to fire Muller or pardon anyone at this point, so and I'm not going to do anything, we'll see, was what he was asked whether he would commit to to the legislation. And Lindsey Graham said no one in their right mind would fire the special counsel. I don't, this is the direct quote, quote, I don't feel an urgent need to

[0:48:13] pass that law until you show me that Mr. Muller is in jeopardy. I don't, I, how, what is that? Like, yeah, Trump has has written half of the order firing him, right, like, and they'll quickly convene a session of Congress to protect, do we do that with most laws? Like, look, until this

0:48:31 Thomas: The president's life is in danger, we're We're not going to say it's illegal to assassinate. That doesn't work with anything else. You pass a bill because there's a risk or you want to protect against something, right? No,

0:48:43 Andrew: That's absolutely right. And look, make no mistake. It's why I led with the Steve Bannon stuff. It's why I'm linking to the Daily Beast story. Look, I try and reduce the temperature around here a lot. This is part of a concerted strategy to leave open the ability for Donald Trump to pardon or fire

[0:49:05] his way out of this. I cannot interpret it in any other way. And this is something that we need to actually be on guard about and watching and making sure that that doesn't happen. Because look, if Trump, I mean, yeah, it would look really, really bad if Trump were to pardon Manafort tomorrow, right? He may pardon Manafort by the time this episode airs. But once you do that, right, like the, you know, the cat is out of the bag and now Manafort has absolutely no reason to cooperate ever.

0:49:42 Thomas: All right. I need to step on a tiny soapbox. But after you have gone over in the last episode just how guilty this this guy is, I mean, he is just a fraud. I mean, he's laundering money, millions of tens of millions of dollars through these elaborate schemes. Schemes, you know, like the idea that Trump could pardon him. And, and, and you know what, when you said that, I realized, you know what, you're right. Maybe, maybe as we're recording this, he already did. And maybe as we're recording this, you know, as you're hearing this, he

[0:50:13] already did. And there already was no consequences. Like I can easily envision a world in which he pardons Manafort. They play it off as, "Yeah, he didn't really do anything wrong," and whatever. And there's no consequences. Like, we can't let that happen. Oh my god, sorry, I just realized that that's going to happen and I can't believe it, because what, like, the crimes he's accused of and is guilty of clearly are nothing that there's any reason Trump should be pardoning him for, like, there's no, I mean, real, right? I mean, there's... there's nothing, there's no reason Trump would be pardoning him other than he's his crony and he wants to gain from it. Correct. I

[0:50:50] Mean the crimes he's guilty of our our money laundering of tens of millions of dollars. Yeah, I, wow, I, you just, when you said that, you made me realize how scared I am of that's going to actually happen. He's gonna pardon him and nothing will happen to Trump as a result of it. We can't let that happen. Somehow, I don't know how, but we can't. Maybe introducing a bill, something that says like,

[0:51:15] if he, uh, you know, fires Muller, does this stuff? Oh, wait, that didn't work. Yeah, I mean, that that's, that's, that's what, what they're trying to do, so that's

0:51:22 Andrew: We've talked previously about some of the other things to, you know, keep your eyes on, right, to push back when people on the left, you know, are kind of falling into the exuberance of the narrative on the right of, no, look, like the investigation's almost done, you know, if we don't know by now then there's not, right? This is kind of the next step in their strategy to fight this, which is, uh, here's

0:51:47 Thomas: Something I wanted to ask you is, there anything anything Mueller can do about this? Are there any state crimes or something he can try to get Manafort on? Is there any way to work around a pardon? You know, because I know we've talked about this before, the president can only pardon for federal crimes, is there any wiggle room there for Muller,

[0:52:06] you think? Yeah, the the Department of Justice does not have the authority to bring state crimes. What they can do is they can turn over their files to state

0:52:18 Andrew: And and local law enforcement officials. So, you know, Manafort, uh, do I think you could get the New York Attorney General interested in bringing state charges against Matter? I think you could, right? But I don't know to what extent New York has kind of similarly robust anti-money money laundering statutes, right? Like, you don't really need, you know, when you think about that on, on the state level, I'm sure that

[0:52:43] there are banking fraud. Well, maybe, do you think he avoided paying state taxes as well? And maybe that would be? Maybe, right? And again, I'm sure there are banking frauds to, I mean, it's New York, right? Wall Street. I'm sure, I'm sure they have state banking fraud statutes, but, but I don't know, you know, I don't know how, how easy or difficult it's going to be to prove in that case. So yeah, I mean, what, what Muller can do is go to the states, and but, you know, that's the instrumentalities available to even the New York Attorney General's office are, you

[0:53:15] know, very, very different than what you get from having the Department of Justice behind you. So, yeah, that was

0:53:21 Thomas: Something I was going to ask. Now, I, I also wanted to ask, in terms of this legal strategy, do you, do you have any insight as to why

[0:53:27] Papa Jeb... Dapless... George Stefanopoulos? No, who is it? Papa... Yeah, George Papadopoulos. Yeah, Papadopoulos, why he wouldn't have gone this route of trying to hold out for a pardon? Do you have any, do, do, is there any guess as to why? Yeah, because they, the kind of both sides of the spectrum closed

0:53:46 Andrew: In a little bit, right? He's a lower level guy, so he doesn't have Trump's direct ear. It doesn't seem like it from, uh, the statement of the offense that, you know, he was always communicating through the campaign, so he's not a

[0:53:58] close personal confidant of Donald Trump himself. And the, uh, and Muller's team was willing to go really, really far with him, right? Like, they, he's, he's pled to a single count of, uh, violation of 18 U.S.C. 1001 that carries a maximum five-year prison sentence, but I mean, they may be preparing a recommendation where, you know, all of his time is suspended, where he never does any time for that. So, that you know, look, they gave him a good deal, which, you know, I suppose we could have talked about last week, that yet another inference that might lead you to believe that he is sort of actively cooperating

[0:54:36] and helping them. Yeah, he's got to be. So, I see. So it's kind of a culmination of a few different things.

0:54:42 Thomas: They probably, in terms of Trump, maybe they figured it's less damage to play him off as an underling who wasn't really, you know, oh, he's just a rogue underling, volunteer, nobody, than it would be to pardon him and then answer all those questions. Right. Okay. That makes sense.

0:55:28 Andrew: The Trump administration is going to fight back, is going to undertake whatever

[0:55:34] political means necessary to try and inhibit the typical way in which these investigations unfold. And the typical way in which these investigations unfold is you bring indictments and you get plea deals with guys lower down in the chain to flip on guys upper in the chain until you get to the top of the chain. The top of the chain here, presumably, is Donald Trump. And any effort to handicap Robert Mueller is an effort to to shield Donald Trump. And we, we've got to be on the lookout for, and it could be, you know, caged in things,

[0:56:11] right. That, that on the surface, you know, if you saw a bill to, you know, restrict the jurisdiction to the relevant timeframe beginning in March of 2015, you know what I mean? Like that might, uh, when that bill came out in August, right. We didn't have the Manafort indictment. We didn't know what was pre 2015. You couldn't point to it and go, this is what they want to cover up. It was just a kind of scattershot of, you know, let's restrict things as much as possible. And, you know, I mean,

[0:56:42] thankfully it didn't pass in August.

0:56:45 Andrew: There may be tactics that are tried now that fall within that same overall umbrella that, you know, are designed to forestall the next indictment rather than to respond to

[0:56:58] the present Manafort indictment. So be vigilant. That's the watchword. Yeah, definitely.

0:57:04 Thomas: All right. Well, thanks for breaking that down. And we have to get to our co-favorite segment of the week. And that is, of course, thanking our new patrons. So I would like to thank patron Frankie Jones,

[0:57:16] Bryan Grob, or Grobe, I don't know, FroodOfHoops, Jason W. Brooks, and Stephanie Schultz. And thank you to Target, not that one. To Aum, which I believe is a Hindu meditation technique. To Cathal Cooney,

0:57:34 Andrew: Brady Root, and Laura. Thank you all so much for supporting the show. We really appreciate it. And couldn't do this without you. Hope you are enjoying all of that delightful Patreon content, content uh my extended interview with Michael Ropps about Serial and Undisclosed, and Thomas and Mark and I uh doing

[0:57:54] a Law'd Awful Movies for Body of Evidence, which was just fantastic, so much fun. It was amazing. Thank you all so much. Oh, no associate this firm has ever failed the bar exam. No kidding. And now, time for my currently still co-favorite time. You know, it's a quad favorite favorite time. Uh How did I do? Bar exam time, here we go. Okay, Thomas, this was a very, very timely question about conspiracy here. This was three people who collectively stole a painting from the art museum. The driver uh was later caught in an unrelated crime and said, "You know, I didn't even get any money from that. It all went to the first guy and the second guy." In the trial of the first guy and the second guy, can the prosecutor introduce the driver's statement as evidence? And

[0:58:43] you eliminated A and C. A, yes, as an admission by a party opponent, and C, no, because it was made while in custody and is therefore unreliable.

[0:58:56] Those are good eliminations. Uh Second chance exam, still alive. Yeah, still alive. C is a good elimination because that statement is nonsense. Sense Yeah, statements made in custody are not inherently unreliable. I mean, you can you can cross-examine uh to ascertain the reliability, but there's nothing, you know.

[0:59:15] I mean, that would.

0:59:16 Andrew: Anybody who's ever watched Law and Order would, you know, no, C is not correct. A, yes, is an admission by a party opponent, also a good elimination, because it's not the case here for reasons we're about to see in

[0:59:28] a moment. That left you with A, B, and D. All answer the question. Analyze the question in the context of hearsay, which you correctly issue spotted. This is an out-of-court statement by someone who is not the declarant. You eliminated B, yes, as a statement against the interests of the other defendants, and went with D, although kind of shakily, no, because the statement was not made in the course of or in furtherance of the conspiracy and thus is hearsay. And I am delighted to tell you, you are once again correct.

All right, Federal Rule of Evidence 801 D2 exceptions to the hearsay rules principles, the allow you to furnish hearsay by a co-conspirator if the government can show, one, the existence of a conspiracy, two, that the statement was made by a co-conspirator of a party to the conspiracy, both of those here, three, it was made during the course of the conspiracy, and four, it was made in furtherance of the conspiracy. And uh neither of those are the case here, so therefore it is inadmissible hearsay. And, uh and is as you point out, the remedy here is for the government to put the driver on the stand. How do they put the driver on the stand without the driver taking five? Right, pleading the fifth, uh saying, "I'm not going to testify because that anything I say would tend to incriminate myself." They would immunize him, right? And

1:00:56 Andrew: Put him on the the stand. These are the kind of techniques we are going to see uh being put in place by

[1:01:03] uh, Robert Muller and his team over the next couple of months. What a thematically appropriate question. Yeah.

1:01:09 Thomas: And I noticed too, would be, when it said yes, as a statement against the interests of other defendants, that that could apply to like anything, right? I mean, it just seemed really vague. Like, why would that is is, with respect to the first and second guy, which I loved how the wording when the first and second guy go on trial with respect to them, he's just, because he's not a co-defendant, so he's just a guy, kind of. So it's almost like that rule, if that were true, if B were true, you could just any statement seems

[1:01:40] like it would be valid if it's against the interest of the other defendants. That's exactly right. It

1:01:46 Andrew: Actually was the most attractive distractor to me because, again, I'm a civil litigator. The reason it's an attractive distractor is when you are talking about, in particular, civil litigation, I mean, it's also true for criminal litigation, it is an exception to

[1:02:05] the hearsay rules to have an admission by the party itself. Yeah, yeah, yeah.

1:02:40 Andrew: Include that as an admission against the interests of the party being made by the party itself, right? But that - but only because that person is also a Microsoft, right? Yeah.

1:02:52 Thomas: That's - I kind of remember that from a previous question, and I was - yeah, yeah, wow. All right, man, I'm on a roll. What is

[1:02:58] that, four in a row? Yeah, four in a row, and 28 of 48. If you get the last two right, then we get to end. Yeah, 60, 60%. 60% is a gentleman's D-minus, and it is enough to pass the bar in - it's enough to pass the multi-state in any jurisdiction. Top 5% of all lawyers. No, I'm just kidding.

[1:03:20] Wow. All right. Well, Andrew, hop in your time machine and tell us who is the future winner.

1:03:28 Thomas: Future Andrew, who is the winner for this week's TTGGB?

[1:03:32] All right, Thomas, this week's winner is our buddy, Professor Randall Eliason, who writes in TTTBE,

1:03:38 Andrew: Thomas scores again. The answer is D, it's hearsay because, just as with Papadopoulos, the conspiracy

[1:03:45] is over and the jig is up. So great pithy answer, correct, which is always helpful. And if you're not following Professor Eliason, you ought to be anyway. Friend of the show, he's been a guest on a couple of times, and now he's he's playing along, showing that his his bar exam chops are still in pretty good shape. So that's at R-D-E-L-I-A-S-O-N on Twitter. And congratulations to winning this week's TTTBE. All right.

1:04:16 Thomas: Thanks so much for participating in TTTBE. The congratulations, fame and fortune, all that stuff. And thanks for listening. Thanks most of all to our patrons for making the show happen at patreon.com/law. Definitely check out that bonus content. It was really fun. You're going to enjoy it. The least we can do for our lovely patrons. With that said,

[1:04:35] keep yodeling, everybody.

1:04:37 Thomas: I'm looking forward to the next Indictment Monday. That's going to be a new holiday. I'm really excited for the next one.

[1:04:44] We'll see you soon. Stop breaking the law, asshole!

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[1:05:50] Yodel Mountain, the impeachment beer.