OA277: The Republican Civil War

Transcript

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

[0:00:03] So I hold myself in contempt if you try to pull me up here to court with that attorney. [0:00:19] I'll ask the questions here, carjacker Willie. Objection! I'm going to allow it. It characterizes the defendant as a carjacker. [0:00:30] You didn't kill Thompson, but you did, Mr. Wells. Yes! Yes, I killed Ned Thompson! I killed him! I killed him! I killed him! I killed him! [0:00:45] You're out of order! You're out of order! The whole trial is out of order! They're out of order! [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life 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.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 277. I'm your host, Thomas Smith. That over there is Andrew Torrez.

[0:01:24] And Andrew, you didn't kill him, but you did, Brian. Oh man.

0:01:31 Thomas: This is the first time we are recording after the new intro, and uh, that was that's my favorite intro quote

[0:01:38] of all time, I just gotta say, it's the best. I, I, I think we could do a nothing

0:01:44 Andrew: But a Perry Mason appreciation podcast, and like, that would, that would, that would make you maybe

[0:01:50] the happiest person on earth. I just want to know, I'm never going to watch the episode, but I want, want to know what the explanation

0:01:56 Thomas: For this is, like, you know, because I, if you tried, Andrew, if you tried to pull this one on me in court, but

[0:02:02] you did, Thomas, I'd go, no, no, I didn't know. Yeah, oh, you thought I killed. No, I didn't. I didn't kill. Oh, did you think I was the, the bad guy? No, no, I'm not the bad guy. What, what is, what is the explanation, like, this guy has some fatal his critical brain malfunction where if you accuse him of something, he has to have a meltdown and scream that he did it.

[0:02:23] Does that must be a weird way. It was the inspiration for the uh Jim Carrey Liar Liar movie, right? Yeah.

0:02:29 Thomas: Oh, so great. So when I uh that that came, someone suggested that one in particular, from a

[0:02:35] whole YouTube compilation video of like dramatic confessions from Perry Mason, and I kind of wish our show was just that, like, we'll just publish one that is 100, or maybe a lot, off of movies, will just be that.

[0:02:47] We go through each of them. No, all right, it was so fun. Dramatic Confessions would be a good name for a podcast, by the way, that is uh 100% the intellectual property of Opening Arguments Media LLC. So, I was just, the reason I, I am dwelling on, is because it was, it really was the first time where I clicked on, they're always funny, but like, this was the first time I clicked one, I just burst out laughing, because it's so out of nowhere. But you did all right. Well, we're gonna find out who actually did it in a number of different scenarios here. Um, first off, you had a a little plug, you were on GAM, and uh, everybody is talking about how hilarious you were on GAM, and I for one believe it, because you are a funny guy, as much as you try to pretend otherwise. Yeah.

0:03:31 Andrew: GamE episode 194, we did Gosnell, America's most prolific serial killer, uh, which is true if by most prolific you mean three. Um, but uh,

[0:03:44] it is, uh, yeah, no, it's, it is is essentially a, what could be, what could have been a moderately interesting Criminal Minds episode, uh, that was instead turned into a ponderous 95 minute long anti-abortion screed, that uh, that makes no sense, but um, but there's lots of cool fun.

[0:04:03] I mean, it's basically like a Law'd Awful Movies, um, only, I love this, I, I love this. Yeah, if you want to know what Godawful Movies is, it's kind of like a Lot Awful Movies, but you know, not as good. Not as good. Not as good, obviously.

0:04:16 Thomas: It's of course, Godawful Movies is the fantastic podcast from which we ripped off the Lotawful Movies name. And I also want, correct me if I'm wrong, this movie you did features a washed up Dean Cain. Is that right? Am

[0:04:28] I getting the right one? Oh, God. Yeah, it features Dean Cain. And again, it's not really fair to call Dean Cain fat, right? Right? Like he's not, he just, it's just dad bod Dean Cain. Dad bod Dean Cain, yeah. But he used to be Superman, right? So that's kind of, right. That's something, you know, the word to the wise, like if you're gonna get a role like that early in life, be prepared for a lot of before and after pics. Like no matter where

[0:04:53] you go, you know, like you can't, there's only downhill from Superman to wherever you end up. So. Yeah, or do, or do Hugh Jackman. Isn't Hugh Jackman like 54, right? Or somehow be Hugh Jackman, is the other option, I guess. Okay, so and then you uh you're gonna make another appearance on another show, is that right? Yeah, um, I am gonna be, this is

0:05:16 Andrew: Um, May is Mental Health Month, and so the uh the Pod Therapy guys, friends of

[0:05:22] the show, uh, have asked me to come on to talk about the the principle that uh you should not diagnose the mental health of a sitting president, right? Often called the uh the Goldwater rule. So I'm going to push them on that a little bit. Um, they have taken a very, very strong stance that it is inappropriate where, you know, mental health practitioners have sort of weighed in and said uh things like, boy, it seems like Trump is a narcissist, and it seems like, you know, we have the report from uh from the ghost writer of Art of the Deal, that, you know, he, he can't sit still or pay

[0:05:59] attention, or read, or you know, and and um, look, I, I want to be a part of this conversation. Um, it, it obviously, uh, mental health is a major issue in this country, and you know, I don't want, uh, I don't want politics to blind us to that, but um,

[0:06:18] but I'm looking forward to it. So as soon as I go on that show, as soon as we tape it, I'll uh, I'll put up a link in the show notes. Well, I don't want to live in a world where I can't just say that Trump is definitely a narcissist. Like, I'm allowed to say that, because he is. But anyway, all right, moving

0:06:31 Thomas: On. Interesting discussion to be had. No, I'm sure there's lines to be drawn about, what you know, what's, what's appropriate, what's

[0:06:37] a actual diagnosis and all that. So, yeah, I want to be able to call him a criminally insane game show host, so that's uh, I'll put my cards on the table. Yeah, there you go. All right, and uh, now to get to today's show, our agenda, we're going to be talking Matt Gaetz, which we personally, are we going to be able to like personally put the cuffs on him? And I don't know how the Florida bar works, but I imagine there's some sort of ceremony

[0:07:02] that we can. I have asked our merch guy if he can print up a 300

0:07:08 Andrew: Foot long banner that says mission accomplished.

[0:07:13] So we're going to talk about that. We're going to talk about Civil War, which my dumb brain thought, oh,

0:07:19 Thomas: Andrew's doing an Avengers tie in. To the new Avengers movie that was called Civil War like five years ago. Never mind.

[0:07:25] Five years ago, yeah. Like 10 years ago, whatever it was. Based on the Ally McBeal rule, like I think. Civil War was one of the current iterations of, I'm not, come on. It's not like I was hearkening back to like a Val Kilmer Batman or something. Give me, give me some credit. Barr being held in contempt. We're going to talk about that and some of the history there. And there's all kinds of stuff going

[0:07:48] on. Don Jr. subpoenaed by a committee that, do my eyes deceive me, when it comes out of the Senate? I can't

[0:07:56] wait to hear Andrew's take on that. All that and more, so we'd better get over to it. All right, oh, you didn't know,

[0:08:07] your lawyerly host, Andrew Torrez.

[0:08:12] Okay, mission accomplished on our, on our battle cruiser, the OA. Uh, battle, we'd be like Scientology how they have that ship, that, except without the measles, uh, so on the OA, on the OA ship

[0:08:24] that doesn't have measles, but does have the mission accomplished banner. What did we accomplish? If If you'd like to sign up

0:08:30 Andrew: For a billion-year contract to work for Opening Arguments C organization, just send an email to openargs

[0:08:36] at gmail.com. Openarguments at gmail.com. No, look, I feel like we can legitimately, our listeners can take a victory lap here. So so Matt Gates, uh, Florida Republican congressman and all-around garbage monster, uh, as we pointed out, uh, tweeted out, uh, right before Michael Cohen was scheduled to testify, uh, before the House of Representatives, I like, oh boy,

[0:09:06] it should be a shame if uh your wife learned about the affairs you were having. Yeah, he did his best Fat Tony impression. Yeah, and and so uh, you and I took to social media and alerted our friends over at the Florida Bar that follow us on Twitter, and we got uh several, in addition to us filing a Twitter complaint, we got uh several of our listeners, we asked to chime in and say, hey, um, if you live in Florida, uh, any resident of the state of Florida can uh file an ethics complaint. Um, the next day, the Florida Bar let us know that they were investigating, and um, as of yesterday,

[0:09:49] uh, report from the Tampa Bay Times, I'm going to link in the show notes, um, the, so so the way in which this works is the Florida Bar conducts an initial kind of review, right? And and you know, basically what, what you do is you're sifting out

[0:10:08] the complaints that are utterly meritless, right, right, yeah, yeah, that there's going to be plenty

0:10:14 Thomas: Of petty grievances and stuff that people trying to get back at, at lawyers for some nonsense,

[0:10:20] or something, exactly right. And um, and so what they have now done

0:10:26 Andrew: Is they have convened a panel. It It is called the Grievance Committee, and

[0:10:33] The Grievance Committee's job is to function like a grand jury. Wait, I know. So they operate under the Festivus rules of order in the Florida state. That is the airing of grievances. So they finish the feats of strength, you're saying, and then they're on to the airing of grievances. Exactly right. There's a pole erected in the middle. It is Florida, so I don't know how much I'm joking. Let's see. Right, right.

[0:11:01] So, look, what this means is that the Florida Bar determined that this was not a frivolous case, right? That this looks like a member of the bar using his office in a way to intimidate a potential witness.

[0:11:20] And now the- Case closed. Yeah, and so, um, now the grievance committee will sort through all the evidence and then decide whether there is probable cause to refer this out for, uh, potential disciplinary, um, disciplinary actions. And, and again, remember, an attorney grievance matter means that Matt Gates can be disciplined as a lawyer. He will not be disbarred for this, I, I, I can, I can predict, uh, but he could. He could be suspended. He could have other admonishments, disciplinary issues placed into his record. This will not remove him from Congress, right? I mean, you know, the Florida voters have got to do better than this guy, uh, but um, but it is, it is a real step. It is being taken seriously by an independent body and, uh, and good on, good on the Florida bar for, uh, for taking this seriously and referring this out and and treating it the, the way it should be treated, right? Like, this is not how members of the bar should behave, and I say that as somebody who just did a

[0:12:29] two hour long podcast with the puzzle in a thunderstorm, guys, right? Like, yeah, but you managed to not intimidate any witnesses in an ongoing investigation. It's, I think, shockingly easy to do that, right, unless Dean

0:12:42 Thomas: Kane, who ate too many potatoes on Mars, uh, is testifying in front of Congress. That's the only

[0:12:48] way, that in which case I'm going to refer you to the bar. In which case you should. So everybody, uh, everybody do a victory lap, uh. Good, good work, guys. Yeah, that's. There could be consequences. It could be. I did the Florida State Bar. Who knew they were the heroes we didn't know we needed, but they're stepping up in these, uh, dark times. That's awesome. Congrats to us. Mission accomplished. We'll see where that goes. Hey listeners, Opening Arguments is brought to you by Policy Genius. You know, I have to say, I just had our second child, baby Arlo, and when we had our first child, Phoebe, almost a couple years ago now, I decided to do something that I am very, very glad I did, and that is purchase life insurance. And I think it's

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[0:14:59] All right, time to get to the current Avengers movie, Movie Civil War, uh, why, why are you phrasing the Civil War? Is it because, um, you know, branches of government are doing battle? Is that, is that what we're, we're calling Civil War here? So I, I think it, I think it works on two

0:15:17 Andrew: Levels, right? So we are going to talk about the nonsense that the right has already started to gin up about how co-equal branches of government means that the president can do whatever he wants, um, never minding that, you know, that's not what the word equal or the word co means, um, but, uh, so, so you could look at it as kind of the showdown between the executive and the legislative branch. We could talk about that, but I also think it is a civil war between two kinds of Republicans, that that is brewing, right, that the first are those Republicans who, who are either personally loyal to Donald Trump or beholden to those who are personally loyal to Donald Trump, right? So personally loyal are the craven sycophants, morons, and associated criminals that are a part of the Trump organization. Right. Right. And they've cropped up in unexpected places. Bill Barr, sycophant. Who knew? Right. It also includes people who are deathly afraid of Trump's voters. Right. Like Lindsey Graham, who knew, went from having the second most liberal Republican record in the U.S. Senate to being

[0:16:26] Trump's main water boy on, on the floor of the U.S. Senate, um, all Those folks are in one category, and in another category is part of

[0:16:39] the dynamics of Yodel Mountain, right? And those are Republicans who are not personally loyal to Trump in any way, who are politically loyal to various

[0:16:51] aspects of the Trump agenda, right? Either they are loyal to, to the institution of promoting tax cuts in the Congress, to a notion, to a Federalist Society view of the judiciary, or even to, as we're going to talk about with Andrew Seidel next week, kind of the Christian nationalist right-wing takeover of

[0:17:17] the government, those two principles are about to come into conflict. And and the biggest way in which they're about to come into conflict is we're about to ask the judiciary, as we talk in this segment, to resolve questions of holding

[0:17:37] the executive branch accountable, and the first group of Republicans want to avoid that at all cost, right? Trump is, is their guy, he's committed crimes, they have to shut this down. The second group is not so sanguine about that, right, these are folks who understand Donald Trump is 71 years old and eats McDonald's six times a

[0:18:03] day, right? Like, it, it, well, hold on, except on special occasions when he has a sports team over, and then he eats McDonald's. Yeah, it, but a lot of it, yeah, it is, it is comical how unhealthy Donald Trump is. Um, he's not going to be president for very much longer, and if you are committed to the institutional belief of the ascend, you know, the, the emerging ascendancy of the right-wing judiciary, the very last thing you want to do is author an opinion that says, "Yeah, nope, sorry, um, uh, we are absolutely powerless to stop a president here," especially if you're thinking, boy, the president in a little over a year and a half

[0:18:53] might be as Elizabeth Warren. This is, again, I've been the optimist on this show, I'm going to continue to be the optimist on this show until, you know, my teeth are kicked in over and over and over again, um. Clarify, not by, not by me or anything, just by the world. Okay, just by the, way I mean, by reality. Right, personally I love your optimism, I enjoy it kind of as a, like, oh, that's nice, you know, just a nice feeling, but I don't buy it for a minute, but, you know, I enjoy it. Yeah, no, and, and, and look, I, I mean, I've said this several. Several times. Right. Like, I, I fundamentally believe that the rule

[0:19:33] of law is a thing and that our institutions still have value. They are being tested in ways that I could not imagine two years ago. But, but, but I think we're going to survive

[0:19:45] those and come out the other side. And, you know, look, if, if, if we don't, we've got even worse problems than we do now. But, but I continue to have faith in institutions. And I think structural conditions like this help, in my mind, show why things are continuing to unravel for Trump, and, and I continue to think that that's going to be the case. So, let's, can we, can we dig into the specifics? Let's do it. Yeah, got, got a, got a couple alerts on my phone, um, of

0:20:16 Thomas: The good variety, and they said that Bar was held in contempt, so I thought, are Democrats, uh, finally growing

[0:20:23] a spine and actually trying to do stuff, make stuff happen? Why don't you break this down for us? Yeah, so let's

0:20:29 Andrew: Be clear, what has happened so far is the House Judiciary Committee has voted

[0:20:35] to recommend to the full House to hold Bill Barr in contempt for his refusal to comply with the congressional subpoena and show up, right? And then Joey's like, cut it out. And then that's, yeah, so, well, there are a couple of things here, right? What, what in in response to the contempt vote, actually, in in pre-sponse to the contempt vote, I love that, did you coin that? That's a good, oa, official terminology, pre-sponse. Assistant Attorney General Stephen Boyd, uh, on May 7th, two days ago as of this recording, sent a letter to Jerry Nadler, the Democrat, uh, House, uh,

[0:21:21] chairman of the uh House Committee on the Judiciary, uh, that threatened to advise the White House to assert executive privilege over the entire Muller report if they held Bar in contempt. The Judiciary Committee nevertheless voted to to recommend to hold Bar in contempt, and the White House has asserted executive privilege over the entire Muller report, uh,

[0:21:46] we're gonna, we're gonna break down the uh legality of that assertion kind of in the second segment for that. But um, but the the the primary question that that people have been asking me is, okay, suppose the House does vote to hold Bill Barr in contempt and Barr asserts executive privilege, what happens next? Right. And and the answer is that we have really, really good guidance from 10 years ago as to what happens next, and it's not good for Trump. So I want to

[0:22:24] walk through all of that. I want to start off with the backdrop against all of this, which I had tweeted out initially. I said, you know, kind of half in jest, but half seriously, um, historically, right, the first thing that the House of Representatives can do when someone refuses to comply with one of their subpoenas, um, is to uh get the uh House sergeant

[0:22:55] at arms to execute an arrest warrant, right? Um, I like to picture the House sergeant at

0:23:01 Thomas: Arms is like some guy still dressed in, you know, Revolutionary War garb, that's been sleeping down there, like the guy in uh Last Crusade, you know, like he's just been in the, he's just been stuck down there since olden

[0:23:14] times. I I I just picture the like meanest bouncer at the worst bar you've

0:23:20 Andrew: Ever hung out in, right? Like I picture some dude who's like six foot five and uh probably an equal, you know, spherical in size, right? Like, uh, fist the

0:23:33 Thomas: Size of your forehead. Like, this is a gotta be the world's most boring job, right? Do they do something, do they have some date, like, you know, busy work they can occupy, if they like rake the leaves or something, what else do they do?

[0:23:45] I I do not know. I did not come prepared for today's uh likely 90 minute episode. This entire thing was going to be a deep dive on who this sergeant in arms is. Who is, yeah, it's, G, Zachary Terwilliger's nephew? No, okay, sorry, no, no, withdraw the question. Question question can stand. And stuff. Like a gym down there, and they require, he just work out, just be like totally jacked all the time? Well,

0:24:04 Andrew: And I'm sure our listeners can chime in, I mean, I imagine, uh, ceremonial duties and escorting witnesses and yes, but but also, right, like I mean there are times when there are disruptions to the House of

[0:24:22] Representatives, and it's the sergeant at arms' duty to uh to keep order. I think the sergeant at arms is also the person who shouts out the uh introductions during the State of the Union address, right? So, you know,

[0:24:35] you've got shouting, and and this, is this is, it's a very important job, but, no, so, Congress can vote an arrest warrant, they, so what they do is they adopt a resolution, uh, that requests that the presiding officer of the chamber, that is, the Speaker of the House of Representatives, issue an arrest warrant, uh, and that arrest warrant can be uh then executed uh by the sergeant at arms. And that sounds

[0:25:00] like super old-timey and stuff, um, but it, I mean, that was done in 1946, right?

0:25:07 Andrew: So, you know, yes, that's 73 years ago, uh, but that's not 200 years ago,

[0:25:13] right? It is, uh, it is a clear backstop to congressional power.

0:25:20 Andrew: And what's more, everything I have read on the House's inherent power to enforce a subpoena, right, um,

[0:25:32] suggests that this is a very, very viable option, right? So when courts talk about, and and we're going to talk about what courts have done in a minute, because that's the other alternative, but courts that have discussed this inherent power have used words like unseemly, or cumbersome, or time-consuming, or ineffective, especially in a

[0:25:58] modern Congress with a heavy legislative workload that would be interrupted by a trial, right? Those are not arguments that constitutionally you can't do something, those are arguments that, come on, let's not go, let's not go first to the sergeant at arms, my favorite kind of legal arguments, come on, yeah, right, your honor, come on, yeah. And and and I would add, and I'm going to link this in the show notes, it's a lengthy 2007 law review article by Josh Chaffetz, um, no relation to Jason Chaffetz, uh, monster from Utah.

[0:26:36] Good, this is a uh Cornell uh law professor, and he wrote an article called Executive Branch Contempt of Congress. Really, really good law, law review article if you like reading those things, uh, the last seven or eight pages talks about the inherent contempt power through an originalist framework, um, it's super interesting, right? So he begins with, right, pre-US, uh, how did contempt work uh at British common law, and he notes, you know, when Charles the First tried to dissolve Parliament and rule by royal prerogative alone, it was contempt of Parliament that drove him from his throne. That model was then picked up and followed by many American colonies, which they used to keep their royal governors in line. And then, in light of the history, he writes, quote, it seems reasonable to assume that the founders understood Congress to have the authority to hold executive branch officers in contempt, and this understanding is further buttressed by the use of contempt proceedings against executive branch officials, including presidents themselves, numerous times in our nation's history. Okay,

[0:27:46] yeah, so that is, right, the historic, the weight of historical precedent, right,

0:27:53 Thomas: He has another really, nuts about this, is, correct me if I'm wrong, but executive privilege isn't in the Constitution, so

[0:27:59] like if we're going to be originalists, shouldn't none of this even be happening? Well, and again, executive

0:28:05 Andrew: Privilege stems, I mean, that that's why this is a good argument, right? Like, because executive privilege stems from this same English common law source, right? Like, it's also not in the Constitution, so if you are going to a textual understanding of the relationship between the bodies, then this ought to also inform that relationship. Really, really excellent point that you've made there. Chaffetz makes, makes another point in which he says, look, the the, the other reason to suspect that the inherent contempt power is particularly appropriate, and that's his thesis, by the way, he says, look, I get that the inherent contempt power is kind of weird and old timey, but it is specifically appropriate when you're talking about executive branch officials.

And the reason is because Congress has special oversight over the workings of the executive branch, right? Right. The entire federal budget, including funding the executive branch, comes from Congress. Congress has the power to impeach executive branch officers. Then, as a result, because Congress is the place where oversight of the executive branch is located, it makes sense that Congress needs to have access to accurate information about the workings of the executive branch, right, and including the power to to hold uh

0:29:25 Andrew: Executive branch

[0:29:26] officials in contempt by resorting to no other authority. So all of that is in the background. That is not, uh, where this Congress is going to go as

[0:29:39] a matter of first impression, uh, but it is a very powerful club to have in the back of your arsenal to say, yeah, you know, at, at the end of the day, uh, President Trump and Bill Barr and and those folks who are obstructing, we, we have this, and we, we are going to resort to this inherent power if, uh, if we can't figure

[0:30:04] out a way to make this work through through other channels, so, to keep all that in the back pocket, Congress has, I think, a very, very good argument that they have the inherent power to enforce their subpoena through no other source, and that that is borne out by history, by precedent,

[0:30:23] and is is pretty strong. Now, what's actually going to happen, as it turns out, that what Bill Barr has done is prima facie a crime. It is a violation of 2 USC 192, which says, "Every person having been summoned as a witness by the authority of either House of Congress to give testimony or produce papers upon any matter up under under inquiry before either House... dot

[0:30:56] dot dot ...who willingly makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than a thousand dollars, nor less than a hundred dollars, and imprisonment in a common jail for not less than one month, not more than 12 months." Wow, so yeah, it's a misdemeanor, but that is a, uh, you know, jail time mandatory, not just a day, mandatory month in jail.

[0:31:27] Uh, he's gonna have to go to walrus jail at SeaWorld or something. How does that get enforced? Dumping buckets of brine on him?

0:31:38 Thomas: Sorry, oh yeah, how does that get enforced? Uh, the Sergeant of Arms has been curling, controlling weights a lot. Yes.

0:31:44 Andrew: No, um, it's two sections later, to USC 194. Um, the Speaker of the House prepares a report of default, and they deliver it to a United States attorney,

[0:31:57] uh, and says, "Hey, um, we're referring a crime to you. Go prosecute this guy."

[0:32:04] Now, I can imagine what you're thinking right now, right? Right is that which is happen, they'll just be like, well, is that the United States attorney is an employee of the Department of Justice, and that person's ultimate boss is Bill Barr, who is going to

[0:32:23] say, "Yeah, you know what, I think we're going to decline to, uh, to prosecute in this case." Um, and and in fact, that is exactly what happened 10 years ago, and the decision of the U.S. attorney to decline to prosecute

[0:32:43] is not the end of the case. So let's talk about a little story. Yeah, here we go. This, this, we're going to go back, we teased it with our Mission Accomplished banner, I want to go back to what seemed like rock bottom for Republican administrations, the George W. Bush administration. In 2006, having been reelected, George W. Bush dismissed a

[0:33:13] bunch of career U.S. attorneys and replaced them with drooling morons from Liberty University School of Law. I mean, like, literally, it was a scandal. It was repugnant. It was taking out career prosecutors and replacing them with political cronies. And 2006 was a Democratic wave year. Democrats retook the Senate, took the House of Representatives, and the House and Senate Judiciary Committees sought testimony and documents related to the firing of nine separate U.S. attorneys. This went on for a long time, right? So here's the way in which that kind of went back and forth. March 2007, the White House counsel, a guy named Fred Fielding, told the Senate Judiciary Committee that

[0:34:06] the White House would allow the House and Senate Judiciary Committees to conduct private interviews with the following folks. Folks, Carl Rove, if you remember him, former White House counsel Harriet Myers, who for about two weeks was, uh, was actually nominated to the Supreme Court, uh, despite that being, I mean, and and again, I want to emphasize that this

[0:34:31] is, this is true, here, she's a more ridiculous pick for the Supreme Court than I am. Okay, that literally, like, you are my number one pick. Yeah, yeah, Andrew Torrez on the, the Supreme Court, that would be rightfully pilloried by, uh, just about everybody. Harriet Meyers is worse than that. Right, this

[0:34:50] is nonsense, you should be on the Supreme Court. Stop selling yourself. Deputy White House Counsel William Kelly, and then, um, Carl Rove's aide, Scott Jennings, the conditions under which Fielding offered these guys up was, uh, testimony would be taken behind closed doors, not under oath, no transcript, and

[0:35:09] you'd have to agree not to subpoena them, them afterwards. All right, so nothing. Yeah, unsurprisingly, and again, I, I just want to kind of illustrate how this sort of goes back and forth in the, and, and, you know, the way in which this process works, um, the committees refused that offer. So then two days later, the House Judiciary Committee voted to authorize subpoenas for those four people, plus a guy named Kyle Sampson, who was the chief of staff to Fredo Gonzalez. Um, and, uh, and, and then there were a whole bunch of requests for documents. Um, the subpoenas were authorized, right, like the bar contempt findings, they were authorized, but the committee did not issue the subpoenas at the time of the authorization.

They're basically going, "Look, like we're gonna subpoena these folks, don't, don't make us do that." So then, uh, they negotiated back and forth with the Bush White House for three months. Um, got nowhere. So on June of 20 2007, the House Judiciary Committee issued two subpoenas, one to Harriet Myers, uh, and one to Josh Bolton, who was the White House Chief of Staff. Uh, Harriet Myers, they wanted to have come testify, Bolton they just wanted to produce documents. Bush asserted executive privilege and told the committees, um, they're not going to give you the documents, they're not going, going

0:36:36 Andrew: To come testify, right. So that's exactly where we are right now, right. And here's what happened. The, the House of Representatives appealed to the chair of the House Committee on Commercial and Administrative Law for a decision as to whether, uh, that assertion of executive privilege excused compliance with the subpoenas. That was Representative Linda Sanchez, uh, Sanchez ruled, ruled that, uh, no, it did not, you still have to testify. That was upheld by the full committee. Then a couple of weeks after that, July 25th, 2007, the full House Judiciary Committee adopted a resolution recommending that Bolton and Myers be cited for contempt. Then they went back and tried to, you know, negotiate again, right? I said, look, like we tried to get you out of the subpoena, you didn't let us do that, we issued the subpoena, you didn't let us do that, um, we've got the votes to hold you in contempt.

Okay, give us Harriet Myers, didn't work. And, uh, on February 14th of 2008, so, ken, right, a lot of, a lot of effort to, you know, to accommodate, uh, they voted to hold Myers and, and Bolton in contempt, and then what happened was Speaker of the House Nancy Pelosi followed the procedure into USC 194. She certified the contempt report out to Jeffrey Taylor, who was the U.S. attorney for the District of Columbia, and said, "Look, we've got, we've got a crime here. We We have a violation of the law, and I want you to go arrest Harriet Myers and Josh Bolton." The next day, Bush's attorney general replied and said, "No, Bolton and Myers invoked executive privilege." So therefore, and this was the text of the attorney general's letter,

0:38:37 Andrew: Quote, noncompliance by Mr. Bolton and Ms. Myers with the Judiciary Committee subpoenas did not constitute a crime. And therefore, the department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolton or Ms. Myers.

[0:38:54] But that's not the end of it.

0:38:57 Andrew: Because when the attorney general issued that response, the Judiciary Committee then filed a lawsuit in the district U.S. District Court for the District of Columbia. And they sought a declaratory judgment that Myers and Bolton were in contempt and an injunction issued by the court,

[0:39:16] enforced by the power of the court, which, again, includes the right to bring in police and place you in handcuffs if need be, ordering Myers and Bolton to

[0:39:29] comply with the congressional subpoenas. And that case is Committee on the Judiciary versus Myers, 558 F. Sub Third, F. Sub Second, 53, from 2008. and the important takeaways from that case are that the court held

[0:39:48] number one, that the House of Representatives had standing to bring this lawsuit, number two, that Congress has a right, that, quote, "There can be no question that Congress has a right, derived from its Article One legislative function, to issue and enforce subpoenas," and a corresponding

[0:40:07] right to the information that is the subject of those subpoenas, number three, that it is the court that gets to decide whether executive privilege is properly invoked or not, and

[0:40:19] number four, that no it wasn't, in, in the case of, uh, of Myers and Bolton. And, um, and so ultimately, at that point, right, with Myers and Bolton, uh, being found in contempt by a ruling by a U.S. district court, uh, they appealed to the Court of Appeals for the D.C. Circuit. There was some additional procedural stuff, but eventually, uh, the Bush White House gave the congressional committees the documents that they were looking for in the year

[0:40:50] 2025. We can expect Harriet Meyer might have to appear before. Yeah, no, she did, in 2009. Your optimism comes from the fact that in maybe a mere five to seven years, the court system might say that Bar has to, like, to testify, or that decision was handed down very, very quickly. I mean, remember that, that Congress wasted a year of trying in good faith to negotiate with the Bush administration, right. There is no chance that this Congress is going to waste a year trying to, to negotiate with Donald Trump and Bill Barr. You take that out, and this from start to finish was a year in, in duration, right. I get a year is a long time, right, but that

[0:41:34] is a real consequence in real time, and the law is Exceptionally clear on this point, right? It is absolutely 100% clear

[0:41:47] that that Nancy Pelosi can issue the report to a U.S. attorney. Bill Barr is going to tell that attorney, "Why don't you not do anything?" But, uh, when that happens, Nancy Pelosi can and will, because she's already done this, go

[0:42:06] to court and move for a declaratory judgment and an injunction requiring Bill Barr to turn this stuff over. And the law is super clear that he has to, in

[0:42:18] about a year. Cool. Opening Arguments is brought to you by Quip. Folks, don't be like I

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[0:44:39] slash o-a. I look forward to that. I, I, the wheels of justice churn

0:44:45 Andrew: Slowly, right? Yeah, I, I get that, but but folks who are saying, right,

[0:44:51] this is, this is the end, or, or my favorite right now, we've, we've started to get the Pepe the frog heads, uh, you know, who wrote back with "co-equal branch of government," you should look that up, right? To which I wanted to respond, like, I, I'll give you a dollar if you could define what co-equal means. But this argument is being promulgated in right-wing media circles, so your Uncle Frank is likely to parrot it back to you. There are two responses to it, right? The first is, look, yes, the way in which the executive and the legislative branches can be co-equal is that they have to submit their disputes to the third branch, to the judiciary, to decide between them, right? Yeah, good point. So that answers it analytically. But there's also a really, really fun historical example that these nitwits are not

[0:45:41] going to know about. And I always love it when you can go originalist on your Uncle Frank. So, remind them, in 1807, former Vice President Aaron Burr was being tried for treason because, you know, he killed a guy.

[0:45:58] Chief Justice John Marshall ruled that President Thomas Jefferson could be compelled to comply with a subpoena deus estacum, holding that, quote, the President of the United States may be subpoenaed and examined as a witness, end of quote. So any idea that executive privilege means Bill Barr doesn't have to produce documents, the president himself could be subpoenaed as a material witness to a treason investigation.

[0:46:29] So can we do that? Let's do that. Yeah, I agree. Let's do that. But the other right-wing talking point

0:46:37 Thomas: I'm seeing, and it's not just a right-wing talking point, it's being mentioned in the coverage of this, is that this happened slightly more recently than you're talking about with the Bush administration, that Eric Holder was held

[0:46:50] in contempt. And I didn't know about this. And I'm genuinely curious if the Holder situation is going to be some whataboutery or if there's going to be a legitimate concern that we played by one set of rules back then with Eric Holder, where I'm sure the Democrats were probably not in favor of that or not complying with that, whereas now it's different. So, can you take us through that at all and let us know your analysis of the both sides-ism there? Yep,

[0:47:23] absolutely. So, Eric Holder was subpoenaed in connection with the supposed Fast and Furious scandal, right? Well, there was a Fast and Furious. What do you mean, supposed? Supposed. Yeah, um, I mean, we, we don't have enough time to like go through

0:47:42 Andrew: Sort of all of the you know political machinations in in in connection with uh with faster right but are

[0:47:48] you, are you laughing at the idea that, because like, that was definitely a scandal, but is it the idea that like Obama planned to do a scam like that? Kind of, yeah. Okay, exactly, exactly. Um, and um, and and the important thing is right that the process that I just outlined with Myers and Bolton was the process that the Republican House of Representatives followed with Holder and that ultimately, right, much of those proceedings came before Judge Amy Berman Jackson of Paul Manafort fame. Judge Jackson ruled that Holder had to turn over to the House Oversight and Government Reform Committee any documents that were not pre-decisional and deliberative in nature, So, in other words, it validates everything that I just described to you, which is to say, when a president directs his attorney general, or an attorney general directs a subordinate, not to pursue, not to comply with a House subpoena, that the way in which that gets resolved is that the House gets to go into court and gets an independent judicial determination as to whether that executive privilege is appropriate. And I want to be super, super clear on this, right, Donald Trump

[0:49:11] has some legitimate executive privilege, right? Um, here's what he does not have executive privilege over, right? He does not have executive privilege over any efforts to rope his lawyers into committing independent crimes, right? So anything that is part of, oh, hey,

[0:49:30] why you don, you're my lawyer, how do you help me cover this stuff up, um, it, that's not executive privilege. But, but when, the reason you have White House counsel, right, and the reason it's not supposed to be the attorney general, uh, is, is because the president, like,

[0:49:49] any other American citizen, is entitled to have a lawyer or lawyers represent him in potential civil and criminal matters of liability, right? Like, like, I want the president, and look, like, I'm a lawyer, right? Like, there's nothing I value more in my profession than the various attorney-client privileges, right?

[0:50:13] I do not want to lose legitimate assertions of attorney-client privilege, legitimate assertions of executive privilege. That's obviously not what we have here, right?

[0:50:25] like saying I've declared executive privilege over the entire Muller report is preposterous.

0:50:33 Andrew: Um, it, it, it is. And we're, you know, and we're going to talk about this in in the very next segment. Um, that argument is laughable and it does not matter which judge this goes before. Um, no judge is going to affirm, uh, the the Trump administration's, uh, assertion of executive privilege over the entire Muller report. It just, it isn't going to happen. It's not that Trump administration

[0:50:56] will not defend that position in court is my prediction. Um, that they, they, they will be forced to back away from from that position because that position is legally indefensible nonsense. So yeah, the, the Holder precedent, really, really good precedent for exactly what we're, we're talking about here. Doesn't matter if it's a Republican Congress investigating Democratic executive branch employees, or a Democratic Congress investigating Republican executive branch employees, failure to comply with the subpoena does not just mean, okay, all right, everybody takes their ball and goes

[0:51:35] home. That's not okay. Maybe I'm sorry if I'm not understanding, but so Holder was held in

0:51:41 Thomas: Contempt, and to my knowledge, he wasn't ever put in a jail or something, like, so what, oh,

[0:51:47] oh, no, it, it, eventually, right, uh, Holder, this was, uh, October of 2014, um, Judge Jackson ruled that the contempt standards

0:52:00 Andrew: Were not met in Holder's case, right? Right. So she wrote, "Under the specific circumstances, the Holder case, the court finds no basis to hold the defendant in contempt." And that was because he complied

[0:52:13] with the production of the documents that, you know, were not. OK, so he had, held, the Obama administration had held some documents

0:52:25 Thomas: That they claimed they had executive privilege for. And so that's like an actual defensible legal interpretation, versus, okay, so that's the difference, that's the difference, they get, they turned over a bunch of documents, like hundreds of thousands of documents maybe, but said, okay, these ones we have executive privilege over, and then the Republican Congress was like, ah, how dare you, we hold you in contempt, and then eventually a judge was like, nah. Is

[0:52:51] that, and, and, and, and let's, let's, let's steel man that as much possible, the Holder's initial

0:52:57 Andrew: Response was, I'm not going to give you any documents, okay, executive privilege over the entire thing.

[0:53:04] They litigated that question and Judge Jackson said, no, you have to turn over the documents that are not pre-decisional, right, that is seeking internal counsel from,

[0:53:16] uh, right, from a lawyer, right, as to how you should proceed, and deliberative in nature, right? Like, that is the, that is the essence of executive privilege, which is the deliberative process privilege. Hey, and the reason, again, we've talked about this on the show, uh, in the past, but, but worth five seconds on a primer here, the reason you want executive privilege is, you want, when you have a real president that actually seeks advice from his subordinates, you want those subordinates in closed session to be as candid with the president as possible, right? Right. Classic example is the president says, I'm thinking of ordering, you know, a military strike on X country. You want your secretary of state to say, Mr. President, if you do that, Americans will get, you know, Americans will die. Right. And no secretary of state, you know, think Hillary Clinton, right, no secretary of state is going to say that and then sign off on the decision and then have Americans. And stuff, if that document is going to get produced in

[0:54:19] court litigation later on, right, like they're going to instead be cagey and mindful of their own political futures, right, because it, because, you know, think about it, you want them to be able to give honest advice. You, exactly right, that's that's the, that's the, that's much pithier than I was saying it, but, but look, there's a conflict between honesty and concern for your political future, and people who tend to be in the cabinet tend to be folks who are part of the political process, right? So

[0:54:51] you want their legitimate advice to be protected by a deliberative process privilege, that's why executive privilege is a good thing. That's, you know, again, it's obviously being abused by

[0:55:03] the Trump administration, to the extent that there's legitimate executive privilege to protect, great, turn it over to a judge, let a judge decide, right? If, if that's the outcome, then I think everybody on earth will be happy with that as an outcome. Um, but, but what's not a valid outcome is just nothing, right? No consequences, no nothing. There will be consequences, there will be lawsuits. Okay. In yeah, I want to say one more thing, right, because we talked about AAG Boyd's letters, um, it's a two-page letter, I'm gonna, going to upload it to the show notes, uh, saying that we will advise the president to, uh,

[0:55:47] assert executive privilege, uh, if you hold Barr in contempt, um, they've done that. Now, as, as we've said, it is noteworthy that that letter says, as a basis for its authority, it refers to a 1982 memo from the president, from Ronald Reagan, that outlined the procedure of complying with congressional subpoenas to ensure that you didn't waive executive privilege. Has absolutely nothing to do with the merits of this situation. It's noteworthy because the same Reagan White House, two years later,

[0:56:27] 1984,

0:55:28 Thomas: Three to five years, uh, no, I'm just kidding, uh, hopefully, hopefully it moves along. All right, what, uh,

0:56:29 Andrew: Then Assistant Solicitor General Ted Olson, longstanding friend

[0:56:35] of the show, wrote an Office of Legal Counsel opinion that is dispositive on this very matter. And that opinion, in relevant part, says Congress could obtain a judicial resolution of the underlying claim of executive privilege and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena, right? Right. So, in other words, if the attorney general's office was not 100% hackery in the pocket of Donald Trump, any honest evaluation of the exact same time frame that they're looking to for guidance here would have uncovered. I know because I found it, right, and, uh, and I don't have a team of lawyers working for me on the show, um, would have uncovered the OLC memo that, uh, that verifies the exact same procedure that I've talked about, right, which is you can go to Congress, uh, sorry, that that Congress can go to the court, uh, and seek a judicial determination of whether this is valid executive privilege or not. So executive privilege claims here are nonsense, the procedure being followed

[0:57:44] is nonsense and boyd is working for a hack, but you knew all of that already. All right. Well, I, along

0:57:50 Thomas: With a lot of other people in the OA Facebook group, by the way, hop on over to the Yodel Mountain Facebook group and participate in the discussion. We were very surprised to hear that the Senate had, well, the Senate Intelligence Committee had subpoenaed Don Jr. because, you know, the Senate is controlled by Republicans and we're used to things actually happening in the House, but not so much the Senate. So, what is happening with the subpoena? Did somebody grow a conscience, or is this going to be some cynical uh

[0:58:21] cover-up thing that that somehow it's just like a propaganda effort I what's happening here I'm I'm

0:58:28 Andrew: Going to be optimistic again, um, so here's what I think happened, and this is a call back to episode 190 in 2018 where we discussed the Senate Intelligence Committee report, uh, and its chair, Richard Burr, a Republican senator from North Carolina, that that report validated the findings

[0:58:53] of our intelligence agencies. It had, as the report noted, authorized ongoing investigation into efforts by Russia to interfere and meddle in the U.S. elections. Those remain ongoing in the Senate. It, uh, we contrasted that with the uh Republican House howler monkey contingent, you know, rubber stamp report that

[0:59:18] was just garbage, um, and I said to you, look, I think there is at the very apex of Yodel Mountain, a point in which Richard Burr, no friend of this show, no one with whom we would, would agree on literally any matter of substance, somebody who, uh, was censured in 2016 for cracking the joke that uh a, a National Rifle Association ad on Hillary Clinton, uh, you know, didn't feature a crosshairs, right, um, so, you know, not, not somebody that we would ever think would be slapping somebody on the back, but uh, but why did that report, uh, you know, as, as we point out at the time, you know, why

[1:00:03] did that validate the fundamental underlying filings, right, that the, the Russians, authorized specifically by Vladimir Putin, attempted to intervene and did intervene in the 2016 elections with a quote, clear preference, end quote, for Donald Trump, uh

[1:00:21] that, uh, as the bottom line findings say, uh, the Russian government aspired to help President-elect Trump's election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him, uh, why did that come out of a republican run committee? And that's because, for whatever disagreements we have politically, my assessment is that Richard Burr does not want hostile foreign power to run our elections, and I believe that there are Republicans who are like him, um, and I, I believe that this is a significant step forward. I, I want to address two things as quickly as as possible, uh, that are, that have sort of come up from skepticism on the left, right, the first is the question of whether this is going to be like, uh, you know, a sham hearing to give Don Trump Jr. cover, uh, it's not, and the way in which, you know, that it's not is because, uh, the

[1:01:24] House has already, uh, the House Judiciary Committee has already signed on and said, oh yeah, well, as long as you're looking at it, so are we, right, and so there's no way to run, uh, you know, kind of a sham and be like, well, it's okay for the Senate but not that, right, like, that's, that's going to, uh, protect against that, um, and

[1:01:42] and number two, this is the the most critical aspect, there was a story because Burr is featured in one paragraph in the Muller report, and I want to explain what that paragraph is. And And I want to explain what the allegation is, because I think

[1:02:02] the allegation is credible and I think it sheds some light here on what's going on. So, in the Mueller report, volume two, starting at page 52, this is Mueller summarizing interviews with Annie Donaldson, who was then

[1:02:21] Don McGahn's chief of staff. So, Mueller says, the week after Comey's briefing, right, then, on March 16th, 2017, the White House Counsel's Office was in contact with Senate Select Committee on Intelligence Chairman Senator Richard Burr about the Russia investigations and appears to have received information about the status of the FBI investigation. That's the sum of the narrative. When you go to the footnotes to figure out, okay, what does that mean, it's footnote 309, and it says on March 16, 2017, the White House Council's Office was briefed by Senator Burr on the existence of quote, four to five targets, end of quote,

[1:03:09] and that comes from, all of these are quotes from Donaldson's notes that she took during this meeting, the targets were identified in notes as Flynn, parenthesis, FBI was in, dash, wrapping up, arrow, DOJ looking for phone records,

[1:03:27] then Comey, arrow, Manafort, and then in parenthesis, Ukraine plus Russia, comma, not campaign, uh, end of quote, uh, I, I thought that was really interesting, I'd love to talk about how, from

[1:03:39] the very beginning, inning, uh, the, the, the Muller investigation was not looking at at Manafort from campaign connections, um, then it says, uh, redacted, harmed ongoing matter, I presume that's Roger Stone, then it says Carter Page, parenthesis, dollar

[1:03:59] sign, game, and then, and then it says great guy and Muller notes, that's probably referring to George Papadopoulos,

[1:04:11] which I liked, um, so the analysis here is that Donaldson and Mcgann testified that they thought that those people were targets of the Senate

[1:04:25] Select Committee on Intelligence, but as Muller notes, the Senate Select Committee on Intelligence does not formally investigate individuals as targets, right, those notes have to be referring to the FBI, uh, to the Department of Justice, and to the Comey proceedings, right, um, and the notes track the materials prepared independently, right, that, that they got independently, that the FBI was preparing for Comey's briefing to the Gang of Eight the week beforehand, so in other words, right, a Senate committee's investigation does not name people as targets, that word has a legal meaning, and it means to the Department of Justice, hey, look, you're a target, you're somebody that we're looking to arrest, right, so put all of that together, and to me that indicates that Burr, early on, right, this is six weeks into Trump's administration, met with White House counsel Don McGahn and his chief of staff, Annie Donaldson, and said, and gave them an update on the status of open investigations, and identified, hey, look, they're looking at a bunch of guys who are potentially connected up with your campaign. Burr 100% should not have done that. I

[1:05:45] mean, absolutely, very clearly should not have done that. In my view, that does not independently show that he is a Bill Barr-level hack-in-the-tank deep cover for Trump. It is certainly consistent to go,

[1:06:04] maybe this guy felt like he got burned. Right. Like, you know, he was used to the normal rules of the game and not used to the Trump rules of the game. And, you know, while he's been sort of quietly, you know, off on his own since then, you know, he may have he may have regretted overstepping those bounds. We don't know either way, but I would just point out, there was an article, I think, in BuzzFeed or in

[1:06:35] the Raw Story.

1:06:36 Andrew: Both BuzzFeed and Raw Story have done good journalism on this, but neither are the New York Times. Right. And and one of them suggested that, you know, Burr might be compromised.

1:06:56 Andrew: That's the extent of the evidence. The extent of the evidence is that one briefing in which he used the word targets, which indicated that he'd gotten information from multiple sources while he was briefing White House counsel. In my view, that does not rise to the level of proof that, you know, he's a he's a sycophant. So there you go. Don Trump Jr. will be subpoenaed. He's going to follow this same pattern,

[1:07:22] right? This is where we are now.

1:07:24 Andrew: The House is going to issue subpoenas. The White House is going to demand, is going to assert executive privilege and is going to tell those folks not to comply. And Nancy Pelosi is going to file lawsuits.

[1:07:37] So there you go. All right, wow, nice, nice work, Andrew. Um, you know, I think your uh, your optimism, we'll see, was, was this a, Andrew was right regarding uh, Richard Burr, you think? I, I, again, look, it's too early to call. I'm not taking a victory lap on the top of Yodel Mountain. I am smart. Save your victory lap. Yeah, okay, I like it. I am pleased though. The, the guy I picked as, you know, maybe having some integrity uh a year ago is the guy who issued the subpoena yesterday. There you go. Um, that feels

[1:08:14] goes to show you might know what you're talking about. That's good. I like it. Let's hope. Awesome.

1:08:21 Thomas: Okay, we need to thank our Hall of Famers, our all-time greats, over patreon.com/law. Oh, we had such a fun time at the Q&A the other day. Uh, thanks for all the great questions, including, I'm

[1:08:34] not going to give it away because you got to be a patron. Well, or you, you got to show up to the YouTube date at the appointed time or go check out the video. But either way, we had an amazing business idea discussed by a certain patron that was absolutely hilarious. So just one of the many reasons to go be a patron and join in on the discussion over at patreon.com, over at patreon.com/law. And I think it's my turn first to thank these Hall of Famers. And we will begin with Dragonfly.eco, books about nature and the environment, reviews and interviews, wow, that's cool stuff, and Polls Sherry, autistic people aren't puzzles, stop with the puzzle pieces, Yodel Mountain Base Camp Day One, spotted

[1:09:19] an orange schmuck squash climbing something, cut off, Darth Mandy Pants, John Richards, well-deserved patron number 239, Donald J. Trump Presidential Library

[1:09:32] at Rikers. Um and Um Brewing. Mmm, delicious. Um and Um Brewing. Karnak the Magnificent has foreseen that this week's TTTBE answer is B. Oh, okay. We'll see how that goes. 13th century Saxony

[1:09:47] gravel truck lawyer. Adam Costa. Barprepbuddy.com coming soon.

1:09:53 Thomas: Clarence Thomas the Tank Engine. Jay Aldenwalt. Jennifer Kratch. Never was there

[1:09:59] a cat so clever as Barbara Lawal. The cure for ultra-virus. Cut maps. We are going to build a Death Star and make Alderaan pay for it. Outside context problem. Visiting the Redwoods was the bucket item I didn't know I needed.

[1:10:17] Stephen Balticatai Sandoval. Impeach Bill Barr. The Muller Files. I want to believe. The truth is redacted. Guerrilla skepticism on Wikipedia is recruiting at at g-s-o-w-team-dot-org. V. Frank. Alexa, turn off all the lights. We will persist with the cease and desist. Don't try to resist. John Bilderbeck. Conrad might be top patron, but he is fullest, deepest... Hold on. Conrad might be top patron, but is he fullest, deepest-throated?

1:10:52 Thomas: Civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. The Registry Matters Podcast. Apocalypse now pet rapture insurance company

[1:11:06] oh there you go well you did kind of reveal the business idea I had been talking about oh that's great apocalypse now I love it you win incorrectly pronouncing latin to avoid the The Accidental Summoning of Demons. Yes, Honey Buns.

1:11:26 Thomas: Gregorz Piorczakiewicz. Sorry, I can't pronounce any of that.

[1:11:30] DataHack.com. Business Automation, Making the Menial Automatic. HOTAS and the Taint Team 2020.

1:11:37 Thomas: Eric Alsman. Thomas Smith is my favorite attorney. Andrew is a close second. Michael C. Sampson. McCabe's Book is my current favorite. Comey's is a close second. Kiwa Valley Exports for Australian red meat and craft beer Michael Cohen is a no-talent ass clown let me be totally clear, I like being totally clear, The Getting Off Podcast Chris Rowden Milo Meadsong,

[1:12:00] The Halfling Bard, and SIU3L. Redacted karaoke legend Cosmo. Redacted blues. Redacted. Redacted. Sam Buck. Redaction blackouts, should now be called Bill Bars. Nice one. Man's vulgarity is another's lyric, and

[1:12:15] your turn, Andrew. All right, thank you to join your labor union. Together we bargain alone, we beg. Bill Bars, Bar Bill, I don't know why that just makes me giggle. Maker of things out of other things, let's have Andrew read the second half of names for a change. Well, you got what you wanted, it. I Like Turtles. Andrew's epitaph will link all his sources in the stone notes. Eating My Soul Food in Small Bites, David

1:12:42 Andrew: In Brooklyn. Devin Nunez as the arch nemesis of the Tank Team is canon now, right? Anonymous Buttercup,

[1:12:48] subpoena writing services, 831 Cat Law One, Andrew's Crash Course in Swedish Tort Law for Reasons, Follow Local Elections, Drain All Levels of the Swamp, aren't we all decomposing snails in a soda bottle in some sense, I love that, Willful Ian with Melissa Forethought. Gosh, these, I, he just, every, every week they get better and better, word origins.org in party materia means about the same subject matter, oh thanks, Chugga Chugga Chugga Batman, and, and by the way, I've come around, it, it does have to be an even number of chuggas, right? And so I'm on four now, I think I was three originally, I'm

[1:13:28] on four. It seems wrong, when, thank you, I'm so good, Thomas was right, Thomas was right on even. Okay, Thomas's Second Chance Was Right, hey we needed to, we, we need to talk about Bill Barr's sharpie huffing addiction, Derrick, Eddie George, Duke of Earl Warren, Jeff's Beck Hansen Brothers Johnson, a pack of howler monkeys who have now been slandered on Gam Too, yeah, that's right, Barack Obama Wrote About Change of You.com on Facebook, yeah that's a, uh, Liz, uh, Project Overturned Citizens United to Unseat Conrad Michael, Big Easy Blasphemy, a string of mostly unpronounceable characters, Brandon Smith, When Life Gives You a Lemon Test, Make Lemonade Versus American

[1:14:11] Legion Spoiler Deleted Is My Favorite Dead Avenger, Spoiler Deleted Is a Close Second, Me Too, um, Ronda Apple, Howler Monkeys Doing Shots at the Lakumi Bar, Malika Chandler, Abacus Flinch, volunteer with Camp Quest this summer, campquest.org, that's a great idea, head on over, campquest.org, and see if you can volunteer for them this summer, Soggy Pants, Sam Danao, Greg Sullivan, Decomposing

[1:14:36] Snail Rider, Significantly Less Impressive Than Sandworm Writer, A Fine Comedy Shoeshine Therapist Is Always Here for You, Zabby, Matthew Vernon, adopt a homeless pet and oppose declawing an ear docking, Aaron Gratty, Heather L, Jeremiah's Fancy Microwave Emporium, Sakashite

[1:14:55] Fukasumi, My Milkshake Brings All the Proud Boys to the Yard, Ian and Ally, this Patron secured yodelmountain.com for her favorite podcast, that is absolutely true, and uh, thank you, you so much, uh, Neil Gorsuch Is a Clown Horning Monster, Eli Bosnick, Mitchell, too frustrated

[1:15:14] to be clever this week, well maybe you're less frustrated, good episode, right? Uh, Have Some Found Guilty With Your Proven Innocent Candle, yeah, I don't, I don't know that we're gonna do the tea that's just, yeah, an anagram of Lindsey Graham is Angrily Shamed, if that's true, I think, think it's not, but if that's true, that's amazing, um, and our all-time great, our number one,

[1:15:38] he who shall never be dethroned, Conrad Michaels, Conrad Michaels, Conrad Michaels, I mean it looks true to me, I ain't really shamed, that seems, it's close at least, that's, that's amazing, yeah, I mean it's not Conrad Michaels level, no, no, I mean Conrad Michaels, an

1:15:57 Thomas: Anagram of Conrad Michaels is Conrad's Michael. That's all you need. Yeah, thank you top patrons, you are the best, you make the show happen, and now

[1:16:08] it's time for TTTBE. Oh, no associate of this firm has ever failed the bar exam, no kidding, and we're joined by a special guest for TTTBE, as we frequently do when we're going to have an amazing interview on Tuesday, it's Andrew Seidel, back for the nth time, how's it going, Andrew? I am well, thank you, how is your, uh, jacket, like your SNL, you know, level five-time host coast coat, whatever jacket, did, did you get it, did you get in the mail? It's in the mail, no, no, I didn't, I'm sure it's gonna be super comfortable when I get it, and I will rub it in the face of Elias and all the others.

[1:16:49] All right, well, of course we are here today not to do the interview yet, but to answer a bar question, so uh, how about it, Andrew Torrez? All right, well, and, and fortunately,

1:17:02 Andrew: Uh, again, I I, I put no fingers on the scale. Questions come up in the order in which they come up.

[1:17:11] Hilariously, the last time Andrew Seidel played along, it was a case that he litigated. So he had a slight leg up in terms of- Slight insider advantage. Yeah, slight advantage over me. Just a little bit.

1:17:23 Andrew: This, I am confident, gives him no advantage over you, other than the fact that he's admitted to

[1:17:29] the block. Other than the massive inherent advantage you're saying. Just this, is yeah, got it, so all right, strap in, here we go, a defendant is on trial for attempted fraud, the state

[1:17:42] charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register, so you know, the standard switcheroo, the defendant has testified in her own behalf that someone else must have switched the tag, on cross-examination the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud of a retailer by the same means of switching the price tag on a fur-trimmed coat, is the question about the prior convictions proper either to impeach the defendant

[1:18:18] or to prove that the defendant committed the crime, and here are your answers,

[1:18:27] A, it is not proper for either purpose. B, it is proper for both purposes.

1:18:35 Andrew: C, it is proper to impeach the defendant but not to prove that the defendant committed the crime, or D,

[1:18:41] it is proper to prove that the defendant committed the crime, but not to impeach the defendant. Okay, as always, let me

1:18:47 Thomas: Uh, let me, is it flounder or founder, I can never remember, let me, me do one of the founder flounder, I

[1:18:53] don't know, one of those, let me do one of those first, before you have both eyes on the same side of your head, yeah, I always hear it, that's one of those ones I've heard either way and I haven't looked up, like, just, I, so some people are using the wrong one.

1:19:06 Thomas: But anyway, let me think back to switcheroo law, I did a whole unit on switcheroo law, uh, let's see, uh,

[1:19:12] there's finders keepers law, yeah, there's finders keepers law, there's uh, other things, things like that. Okay. This is one of those impossible ones that I have a hard time with, these ones. So can you, can't, on the cross-examination, can the prosecutor ask whether they were, so I, There's so much here that I don't quite know. And if I do remember stuff like the cross-examination can only be on topics that I thought that was only on topics that were originally opened up by the, by the original witness testimony. Like you can't just cross-examine on anything and everything. Thing. I feel like I remember that somewhat.

1:19:50 Thomas: Impeaching the defendant, that seems like it would be a good purpose. I don't think it proves that the defendant committed the crime. So, my gut instinct is that you can do it to impeach the defendant, it, but not to prove that they committed the crime since past behavior doesn't, isn't going to prove it. And it's not like testimony. That's like an eyewitness account. That would be something that would prove that they committed. So my inclination is C, um, which I believe it's C, let's see, it's proper to impeach defendant, but not to prove the defendant. Yeah, that's, uh, that's my inclination.

[1:20:27] Um, I could see it being not proper for either. So I think if it was up to me, a second chance, I would go A or C. Like I think it's not it could be not proper for either or proper to impeach the defendant, but not to prove the defendant committed the crime. But I have zero confidence in this. So I'll

[1:20:45] go between A and C and I will eliminate A and go with C.

1:20:49 Thomas: That's what I think. All right. Tell us about switcheroo law, Andrew Seidel.

[1:20:55] I think you're right to throw out A, but I think you can throw that out without even paying attention to the question just because it's the odd man out. Right. It says it's not proper, and the other three say it's proper, which basic test-taking just tells us, okay, throw the weird one out. If all the answers are in inches, throw the one that's in feet out. You know that one's not right.

[1:21:14] So I'm going to go actually with B for both purposes on this one. It's proper for both purposes. I think you're right that it may not prove that the defendant did it, but the question is whether it's proper to be offered for that. And because it is the same type of crime, it sort of shows the MO or whatever it's called. Criminal law has been a while. I think it would be okay in this case for that and for impeachment. So I'm going to go it's proper for both, which, what was that? Was that D or B? B. Okay, I'm going with B. All right. Yeah. You know, maybe in retrospect, I should have gone between B

[1:21:54] or C. That might have been a better second chance answer. Answer, but I'm stuck with my C answer and Andrew Seidel has a B answer. So, you're going to have to tune in on Tuesday, everybody, to both hear a fantastic interview with one Andrew Seidel, who we always love having, and also find out which of us is the better lawyer. There you go. I said it.

[1:22:14] I concede, in that case. All right, Andrew Torrez, tell them how to play the game. As always, if you want to play along with Thomas and Andrew in taking the bar exam, you know how to do that. Just share

1:22:27 Andrew: Out this episode on social media, include the hashtag TTTBE, include your guests, your reasons therefore, and

[1:22:33] we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed. All right, special thanks to Andrew Sidle for that uh little brief uh teaser appearance, can't wait to speak to him on Tuesday's show, and for everybody else, we'll see you whenever we see you. Uh, good job, Andrew, a little, I, I think, uh, tick a little, little, little victory in the the Optimist Andrew box this, uh, this week. We'll see you, might, oh, I thought, I thought you were wishing, I thought you were, uh, saying good, good job to Andrew Seidel for his amazing TTTBE answer, of course, it's always going to be true, but no, I was saying that, uh, the little, there's a little tug of war between

[1:23:13] Optimist, Optimist Andrew, and uh, can we make a transformer villain name that's Pessimist Thomas? Somehow, uh, quick, quick, you're the one who have to be Thomas Tron, right? Yeah Yeah, Pessimist Thomas Tron. I think you tugged a little bit over into

1:23:29 Thomas: The Optimist Prime direction right now. Excellent. Okay, we'll see you on Tuesday.

[1:23:35] You betrayed the law! Law!

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[1:24:31] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.

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