OA282: OREO (& The Real HUD Scandal)

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! You'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] Hello and welcome to Opening Arguments. This is episode 282. I'm Thomas Smith. That over there is Andrew Torrez. How are you doing, Andrew? I am fantastic, Thomas. I am just over here moving the noodle, excellent callback

0:01:31 Thomas: To something no one was here for but you and I. That's the uh, Andrew meant to say move the needle, and he said move the noodle, and uh, it's, look, it's no, uh, hookers and flapjacks, because that's, will never be topped. Hookers and flapjacks is my all-time favorite, uh, but it's, you know, moving the noodle, not

[0:01:49] bad.

0:01:53 Thomas: Let's find out if we can move the audience's noodles. Uh, in today's episode, we're gonna talk about a little

[0:01:59] bit, little mini Andrew was wrong, just a minor confusion, but something, uh, important to to clarify, and then we're going to talk about the Ben Carson Oreo a phenomenon. What a mess, what, what a mess that is. Of course, he's in charge of HUD right now, but who knows

[0:02:18] how much he knows what that job involves. I don't know. And then we are going to get to the long-promised yodeling that you saw in your five-day yodel forecast. You saw those dark yodel clouds, or maybe they're bright yodel sunshine. I don't know. It depends on which way you look at it. I think for Trump, they are dark yodel clouds in the distance. We've got a nice, big, full-on yodel for you in the C segment. We're going to talk about impeachment. We are going to talk about the, the, I, a lot of stuff, and we'll see whether or not Andrew can convince us of his Optimist Prime outlook on that,

[0:02:55] so what do you say? I am optimistic about my ability to do so. Let's see if we can move everyone's noodles. Uh, let's go. Miss veto, please answer the question. Does the defense's case hold water? No, Andrew is wrong. Are you sure? I'm positive. So, uh, you were, uh, you were wrong on something, Andrew, uh, what was that? Yeah, I

0:03:26 Andrew: Was, I was definitely, definitely wrong about something, um, in, in fact, I was wrong about

[0:03:33] uh, at least two things in episode 280, that was uh, last week, last, last Tuesday's deep dive into the Georgia and Alabama abortion bills, um, a

[0:03:45] couple of things that we were definitely not wrong on, right? We, we were not wrong on the law in any way, and you know, I, I keep forgetting, this is kind of useful, that you know, we have a a fairly diverse, left-of-center audience, uh, and we have a handful of, of conservatives who, you know, are sort of not happy with the, the approach that we took on abortion. I would emphasize this to our pro-life listeners, I get that you don't agree with, with where we came out, go back and listen to episodes 27 and 28, where I talk about the Planned

[0:04:23] Parenthood versus Casey decision, I talk about it in depth and, um, I think

[0:04:31] the most charitable case that I can make as an honest left-of -center legal scholar for the state's interest in protecting potential human life. I do not think, and this is going to get me probably some disappointed mail from folks on the left, I do not think that it is crazy or an indefensible position to say that the state has, has no legal interest in protecting future human life.

[0:05:02] I think it shows just how far that Overton window has accelerated to the right that two years later, right? I mean, that's where we're at. We're at two and a half years out from those episodes.

[0:05:16] We are looking at a set of laws that really is indefensible. And so It was certainly not meant to be in a position where we're not trying to engage

[0:05:28] with the arguments on the other side, you know, that, that, uh, you know, I don't want to speak for you, Thomas, but I'm going to speak for you here, like, we believe in steel manning the other side's arguments as, as much as possible, that, that's how bad those bills are and and and if you're new to the show and you missed 27 and 28 from two and a half years ago, a, shame on you, you should download the full back catalog and listen to everything before you get to listen to the new episodes, uh, but b, you know, go, go back and listen to the legal framework and then realize, you know, we're talking about shifting from banning abortion after 20 weeks to banning it entirely, or banning it four to six weeks

[0:06:07] in. And I don't think there is a defensible, legal, philosophical, any kind of framework. You disagree, you have an argument, feel free to send it to us. Now, in connection with that, the two mistakes that I made in increasing order of seriousness. Number one, um, I used the term blastocyst, and I said, you know, it could be a two-celled blastocyst, I was confusing that term

[0:06:35] with the term zygote, a blastocyst refers to the the embryo at five to six days after fertilization, so there are colonies of cells at that point, so there's no, no such thing as a two-celled blastocyst, there are two-celled zygotes, right? Um, so that, you know, the zygote starts dividing and, again,

[0:07:00] remember that the, the position in both of these bills is that two-celled zygote is a, uh, a human being, um, it, it, there's, there, I, that is not, that is not not legally, philosophically, morally, mentally defensible. But so, should have been more precise on that term. I will

[0:07:26] be in the future.

0:07:27 Andrew: Number two, more serious. I confused.

[0:07:32] I spoke sort of off the cuff about Plan B, and I was confusing Plan B, medical name Levinorgestrel. I think I'm pronouncing that correctly. I'm sure I'm not. Who knows? Yeah, with RU486, which is mithopristone, um, so Plan B is used, the the medication is used in traditional birth control um when used as

[0:07:59] a quote morning after pill, what it does is delays ovulation, it does does not prevent implantation of a fertilized embryo. So what does that is RU486. That is an oral abortifacient. It is 95 plus percent effective in the first 49 days, so first seven weeks. And in any sane universe, if you

[0:08:24] believe in the kind of desire to reduce abortions, particularly later term abortions if you are troubled by human development, if you think the state has some interest in preserving the life of uh more developed fetuses, you should be 100 in

[0:08:44] favor of RU486, um, that, that should be where we are shifting our abortions in this country uh to to women where and and and to those who become pregnant where they take an oral medication and um you know it is safe

[0:09:03] it is effective, so I, I confuse those two, this really highlights the need, I, I will, I will point out we have reached out to a couple of folks um to somebody I am a huge fan of, Thomas. I don't know if you follow Dr.

[0:09:15] Jen Gunter, um, yeah, yeah, yeah, um, so she is fantastic. Uh, I, I first became aware of her when, um, she was, uh, she wrote a pretty great article critiquing the, um, uh, the, the, the jade vaginal egg, uh, being offered by, uh, Pepper Pots, um, so, um, I'm glad she did, because I totally would have gone for that, but right, uh, so she is wonderful, we are in contact with her, she has a super busy schedule and a book coming out, um, but she has expressed some interest in coming on the show, we would love to have her, and we would love to have a doctor and a woman discussing, uh, I mean, it would just be fantastic, so, um, so I, I screwed up those two, uh,

[0:10:04] medical terms and, uh, and Andrew was wrong. Yeah, I keep thinking about things to say, but

0:10:10 Thomas: Every time I think of something, I realize it opens up a 90 minute can of worms debate, you know, like, so I, I guess I'll, I'll try to just let suffice to say it's, this is such a an impossible debate because

[0:10:23] and I mean it in the following sense. I don't think there's a good way to take, like, a centrist position between, you know, one side that's saying, and I don't think we should. But but I almost feel like that this is maybe what your right wing critics are trying to get you to do, which I think is just an impossible task, which is, hey, find the common ground between, any like life begins at, in, you know, at conception, and abortion is murder and genocide, and you know, the left-wing position, it's like, there's no way to find the middle, common ground, happy compromise between those two things, you have to fundamentally alter your, I guess, philosophical outlook in order

[0:11:05] to reach any sort of compromise on it's oh there isn't really a comment I think I think no hold on let me let

0:11:11 Andrew: Me jump in. I love that you put it that way, because what I would say, and I don't know if I said

[0:11:17] it quite this clearly, because we we hadn't, uh you know, really sort of seen that, you know, centrist kind of argument come up. But that's what Roe v. Wade does. Yeah, right. Literally just going to say, oh, okay, I'm sorry, Roe is the centrist position. But I but I want to note that if If you

0:11:37 Thomas: Are somebody on the right who has come to believe that, you know, not only

[0:11:43] A, are people, does personhood, full on personhood begin at conception and B, that nothing can, you know, I think another part of the incorrect philosophy is that also if the fetus is a person at this whatever immediate stage, and I'm

[0:12:02] not a biologist, so I don't know the terminology there, that therefore that would would mean that the mother has no right to, to end that pregnancy. If you believe those two things, which I disagree with both, by the way, I want to be very clear.

[0:12:14] But if you believe those two things, then I don't think you can even compromise on it. Like it doesn't, it doesn't make sense to say, oh, I'm going to compromise and, and we'll just do a little bit of murder. You know, like that doesn't, I, so I understand from the right's perspective, given that they already believe these two things that I think are wrong. From there, I don't really think it makes any sense to say, sure, you believe this and sure you believe this, and that therefore abortion is like this genocide. So, let's just compromise and do half of a genocide. And it doesn't make any sense. So, like it's this intractable thing. And I think the answer is you have to change. We need to convince people that that philosophical outlook is wrong. We need to convince people that those assumptions are wrong. I don't really think there's a tenable center given those two, the disagreements on those two premises. So that's what I like, tilting

[0:13:11] at windmills um I agree a hundred percent with what you've said and

0:13:17 Andrew: With the need to persuade folks of our side of the argument. But I I'm not sure that I agree that that you can't phrase the argument. And here's how I would, that I think would respond to sort of both of the points that you've just raised. And the first category of arguments, I would say, depend on two principles that I think are

[0:13:42] relatively non-controversial, right? Right. And those principles are a epistemic modesty and Be, the notion that is well established in the law that

[0:13:55] rights are not binary, but rather exist on a sliding scale. Right. Yeah. So So the B point, right, is super easy to prove. Right. Just ask, how many rights does your 13-year-old have? Does my 16-year-old have? Does your two-year-old? Let me not do it hypothetically, your two

[0:14:14] -year-old, my 16-year-old, and the two of us have different sets of rights. Right. So, uh, so that part is not controversial at all. And then the notion of epistemic modesty is, you have to accept, and and I agree that this is sort of the hardest part to swallow, that the definition of personhood for the law, right, not for philosophy, but but for the law, is something that is unsettled. There is not a clear answer to it. Anybody who tells you the answer is human DNA on one side, or I don't know, like the ability to, um,

[0:14:52] you know, survive independently on. Right. Like none of those answers are correct. All of the definition of personhood is a is a legal fiction that is designed to reflect sort of the best consensus for the. And so if you say reasonable people could disagree

[0:15:11] as to whether, say, let's say a 20-week-old fetus that has started to exhibit some forms of advanced development, whether that

[0:15:23] is, quote, a human person, end quote, that philosophically ought to deserve rights. Right. If you admit to epistemic modesty on both sides, right, maybe

[0:15:36] I am, I am, uh, putting the the the marker in the wrong place, maybe you're putting the marker in the wrong place, then that goes back to my initial point that Roe v. Wade is the compromise. Right and remember that, and this is what happens, right, like, like centrist politically, uh, you know, love to sort of, uh, uh, pillory the left for crafting, you know, for failure to craft compromises. But then when they do that. And particularly in the law, when you see legal compromises that are crafted, then that's picked up on by the right as proof that it is an unprincipled decision.

It is not hard to find incredibly terribly written law review articles, even from folks who are in the centrist camp, even from folks on the left, that say, oh, this is a terribly unprincipled decision. I think the Roe decision is very principled and reflects that epistemic modesty. And so what it said was, first trimester, women's interest is paramount, states can't restrict. Third trimester, states' interest in protecting life is paramount, and states may ban it. Middle trimester, we don't know, so states can restrict but not ban. That makes total sense, sense and the the idea that, you know, it is pilloried as this unprincipled, uh, judicial decision, I I think is, um, is not well founded in the law. So, but now we definitely have gone way down the, uh, yeah,

0:17:09 Andrew: The rabbit trail, but you know, it's worth, I just want to say

0:17:11 Thomas: One thing, which is, I, I won't, I won't argue on the personhood thing, that's a topic for a later date, but in terms of rights kind of existing on a sliding scale and trumping other rights, you're totally right. And And one point I'd make is that Republicans, I think, largely believe that if a bad guy enters your house, your right to defend your home trumps that person's right to life. Like, you can just shoot them. Like, that's Republican doctrine, that you have the right to just, you know, defend yourself, blow a guy up with a gun if he enters your house. But somehow they don't think that if something that's barely a person, maybe, arguably not a person at all, but has certainly no memories, has not lived a life, is just a handful of cells or whatever, if that enters your body, comes

[0:18:01] to exist in your body and would threaten health, it changes your whole life, it's an enormous burden. Let me tell you, babies, I can tell you right now, they are an enormous burden, that somehow then you wouldn't have the right to terminate that. So I just think that's, I've never, I just thought it occurred to me now, maybe the stand your ground law is a good way to show that like personhood doesn't trump everything, even under Republican doctrine. I like it. Maybe we should be like, hey, if a guy, if a criminal enters your house, sorry, they have

[0:18:36] personhood. So you can't, you can't do it. Yeah, the argument, the argument to the contrary is going to be, you

0:18:42 Andrew: Know that the person who has broken into your house has broken the law and the fetus is innocent, right? Like, that's that's going to be the contrary position. And again, you can expose that by going, okay, fine, like if you drive 26 through this retirement community that I'm currently visiting, yeah, you know

[0:19:00] blow you away, parents, right, and the speed limit is, some old guy with a shotgun, do I get to? Set Well, of course not, right, like, there's no, yeah, the idea again that that it's a binary decision, I mean, this sort of plays into the oh but they're illegal immigrants, right? Right, but like, we have a sliding scale of what violating the law means, so

[0:19:19] I I I would, I agree with the point. I I'm just going to flag for you, the counter argument you're going to get is the fetus is innocent, and the counter counter argument to that is that that's not really the the way in which we allocate decisions on rights in the legal system. It's not a binary thing. It is degrees of responsibility. And even when you have a very, very low degree of responsibility, if we think that the countervailing liberty interest is paramount, then we have no problems validating one person's liberty over another person's liberty. So, um, I like the point, but I wanted to strengthen

[0:19:56] it a little bit, or hopefully you wanted to crap on it. Okay, uh, let's, uh, move on to, uh, to Ben Carson

0:20:02 Thomas: Because we've, we, this was not a planned segment, but it just, it's a, it's a very interesting topic, it's a very critical topic, and, uh, you know, it's it's important to talk about, so, uh, with that little detour out

[0:20:14] Of the way, let's get to the fun stuff. But gather around, peeps, I tell you the truth, nothing beats the cookie season, that's the truth. Ben Carson, he is a brain surgeon, he is just, just throwing that out, apparently a brilliant neurosurgeon, and this is a really good illustration to stay in your own damn lane, right? Like, I, I wouldn't, I I wouldn't want Representative Katie Porter to perform brain surgery on me, right? Um, so, right, uh, maybe Ben

0:20:45 Andrew: Carson should not be in charge of the Department of Housing and Urban Development with literally zero qualifications

[0:20:52] to do so. So we would be remiss to, to, if we didn't point out that Ben Carson failed to understand the term REO, not referring to REO Speedwagon, the classic American band, um, it stands for real estate owned, uh, he guessed the first two because, you know, RE in his job you would be able to think means real estate, but uh then he was like, does that mean organization? Uh, after initially going, "Oh, are you talking about Oreos?" Uh, and then tweeted out a picture of himself with Oreos because we live in a garbage country where nothing matters and people who have actual expertise

[0:21:37] uh are ridiculed as pointy-headed intellectual snobs. So that's all really, really bad and everybody should be making fun of Ben Ben Carson. I do not want to bury the lead in this. The reason we are doing this segment is that there was an incredibly useful piece

[0:21:56] of information that came out of this hearing that is getting lost in- I was

0:22:02 Thomas: Wondering. I'm so glad because I was sitting here thinking, there's no way Andrew just put this on the whiteboard in order to say, look at how dumb brain surgeon Ben Carson is on the Oreo topic. There's no way.

[0:22:14] And here we go. No, I was right. Thomas was right, everybody. I want to have more of those recurring segments where you're right for praising me. So to understand what

0:22:27 Andrew: Happened, we need to go back in time to the trailing months of the Obama administration, October 21st, 2016, and Obama's Department of Housing and Urban Urban Development promulgated 81 CFR 64763, right? CFR, it's the Code of Federal Regulations. So that tells you, right, this is an executive agency that is promulgating regulations pursuant to delegations of legislative authority. And here, these were regulations about how the Department Department of Housing and Urban Development should promulgate regulations relating and protecting equal access to

[0:23:10] programs, shelters, other activities that have to deal with how low-income and homeless people access housing. Okay. So, first and most importantly, this rule memorializes fact-finding that was conducted. And here, the fact-finding that was conducted was the U.S. Intra-Agency Council on Homelessness met with homeless service providers. And

[0:23:44] those service providers explained several important things. And they reported, number one, that transgender individuals are discriminatorily excluded from shelters or face dangerous conditions in the shelters that correspond respond to their sex assigned at birth. Let's unpack what that means. Lots of religious institutions participate in homeless shelters. By and large, this is a very, very good thing. Homeless shelters are terribly underfunded, and I want everybody out there, regardless of whether I agree with you or not, regardless of your religious beliefs or lack thereof, Christian, Christian, Muslim, whatever, to be contributing resources to help people who

[0:24:33] are on the streets. However, when you have a belief that a person's sex assigned at birth is an immutable characteristic,

[0:24:44] that means that trans women are placed into male -only shelters or required to use male-only facilities in homeless

[0:24:57] shelters. And it's awful. That puts them in incredibly dangerous positions. This is not hard to understand. The findings then included the fact that, quote, "If given the choice between a shelter designed for assigned birth sex or sleeping on the streets, many transgender shelter seekers chose the"

[0:25:22] streets.

0:25:23 Andrew: End of quote. Okay, so that's how serious this is. I don't care what

[0:25:30] your personal beliefs are on this. When you look at a situation and somebody says, "Yeah, I would rather sleep on the streets than be subjected to this regulation in your shelter," that should tell you something. Anyway, Anyway, continuing, the research shows lack of access to shelter for transgender and gender non-conforming persons, particularly

[0:25:55] youths, is a pervasive problem. Also not hard to understand, right? These are the kinds of people that are kicked out of their homes and therefore most in need of these sorts of programs. The good news, multiple agencies prohibit discrimination on the basis of sexual orientation and gender identity and require that grant recipients treat transgender persons

[0:26:25] consistent with their gender identity. So the infrastructure was already in place, but these, some shelters, a pervasive problem, not all shelters, but a pervasive problem, they were getting grants and discriminating against trans and gender nonconforming persons. So

[0:26:46] the Obama HUD got together and promulgated 24 CFR Section 5.106. That is a change to the official regulations. It's really, really short, and here's all it says. Number one, that individuals shall have equal access to programs, shelters, buildings, facilities, benefits, services, and accommodations in accordance with the individual's gender identity and in a manner that affords equal access to the individual's family. I don't know the genesis of that equal access to the individual's

[0:27:21] family rule. It certainly suggests that trans parents were being denied access to their kids in certain shelters, which is pretty horrifying. Number two, an individual is placed, served, and accommodated in accordance with the gender identity of the individual. And number three, three, and this one is not hard to to discern. The underlying facts, an individual is not subjected to intrusive questioning or asked to provide anatomical information or documentary, physical, or

[0:27:58] medical evidence of the individual's gender identity. I cannot imagine that's, and that's really, I mean, there's some other provisions, but those three things are really what the regulation, the Obama regulation, did,

[0:28:10] right? Says, "Hey, don't discriminate against trans people, don't discriminate against non-binary individuals, don't discriminate against gender non-conforming individuals, place them in accordance with their gender identity,

[0:28:23] and for the love of God, do not, you know, require them to answer questions intrusive questions about their anatomy or provide medical documentation, don't

[0:28:36] do that." So seems pretty straightforward, case closed. Okay, so of course the Trump administration is rolling this back.

0:28:45 Thomas: Yeah, I think it was because in the New Testament, Jesus said if you're, if there's somebody poor who needs a home, what you first do is check in their shorts and see what they have, and

[0:28:58] then make your decision based on that, I think, was. That Is that, uh, in the book, is it Matthew? Above my pay grade. But, uh, yeah, um, this is proposed rule, HUD FR

0:29:10 Andrew: -6152. Um, it was internally circulated a month ago and made public at this hearing, and again, this is the crucial thing, the

[0:29:23] proposed rule provides that grant recipients under HUD programs may establish a policy, and I'm quoting here from the proposed rule, by which such provider considers an individual's sex for purposes of determining accommodation within such shelters and for purposes of determining sex for admission to any facility or portion thereof. They may consider a range of factors, including, including religious beliefs and the individual sex as reflected in official government documents.

[0:30:00] The proposed rule does not dictate a required basis for making determinations, and again, those are admission and segregation decisions, other than they be consistent with, quote, "an overall policy," end of quote. And again, that overall policy may now permissibly consider religious beliefs and official government documents which is code

[0:30:26] for birth certificate. There is, no, this should be shouted from the rooftops, there is, there's... there's no way to spin this. There is no way to go out and be like, "Well, you

[0:30:39] know, this is malice directed at a, at the, a homeless subsection of an already targeted minority. Um, it, it's, it's bad,

[0:30:51] and it's awful, and when I'm not saying, right, we started the segment making fun of Ben Carson and the Oreos. I'm not saying, don't, I'm not saying don't tweet that out or you're a bad person if

[0:31:03] you, but I'm saying this is, this is the substantive matter that transpired. These people are so pathetic, I just, I I can't even, they're so obsessed with what,

0:31:16 Thomas: You know, with genitalia in a very unhealthy way.

0:31:20 Andrew: There is, I'm glad we started the segment on the abortion question because

[0:31:27] I do believe, and again, I know I'm going to get some, you know, questioning emails and, you know, I don't think my liberal bona fides are in

[0:31:40] much doubt here. And I believe there are people who are of goodwill who are pro-life. I know because I was one when I was a kid in high school, but I was a pretty smart kid when I was in high school. I was just wrong on that, right? You cannot be a person of goodwill and promulgate this policy and plan and go back and forth. There is not a defensible steel man position. This is hatred. Hatred and bigotry, pure and simple. Even if you believe, so I don't care. Suppose

[0:32:12] you believe it's all nonsense. Suppose you're a Jordan Peterson fan and you say, "Oh, you know, it's all biological," and, you know, 87 genders, and I'm going to identify as a lobster and a 12 digit number. Why? Who cares? At the moment in which you find out that people are willing to be raped and murdered on the street rather than come into your shelter on the basis of your shelter, there, then maybe your linguistic and psycho-historical and sociological analysis ought to take a back seat. Right, there's no principle that I believe strongly enough, uh, as an abstract philosophical construct that would make

[0:32:49] me want to, to, to see anybody with whom I disagree, uh, suffer that, this kind of injustice. So anyway, I'm sorry, that's not legal analysis, that was a, a fantastic, that was

0:33:02 Thomas: A fantastic rant, and yeah, I would go so far as to say even Trump supporters, if they're homeless, should just have shelters, like, that's how, that's how much I feel like maybe people should just have aid and shelter, no, no,

[0:33:14] right, like, if I have struggled, you and I have debated on this show whether

0:33:20 Andrew: It is appropriate for a restaurant, again, legal, but whether it's appropriate for a restaurant politely to ask Sarah Huckabee Sanders to leave, right, and I've, and I have come down on the side of saying,

[0:33:33] like, maybe, uh, you just ought to, you know, suck it up and let them have their bread and cheese plate or whatever, right, like, it, I don't want it, no, I don't, let those people eat, I'm with you, right, I mean, look, like, I, I, I'm not saying that I'm a hundred percent on the, the side, but what I'm saying is I grappled with the question.

If they wanted to eat food, they can enjoy the delicious milkshake that was just thrown on, and I am, and I am anti-throwing milkshakes at folks, right, like, and I know we disagree on that, um, but agree to disagree, let's compromise. Half in the first three months, you can throw a milkshake at a centrist, right, yes, centrist should be pro half a milkshaking, um,

[0:34:13] look, the fact that we seriously grapple with those issues shows that the consequence is, I

[0:34:22] don't get a tasty cheese plate, or I get a tasty milkshake but delivered outside the vessel, right? The fact that we grapple with those issues shows that you and I, I think, is convincing proof that if it were Trump supporters being kicked out of their homes, we would be 100

[0:34:40] % along with the ACLU lining up. I would be volunteering legal services to, to, to keep Trump supporters in, in their home. I'm, I'm sorry, I thought I was done, my rant, and then you gave me something again, no, I know, I just, I won't, try better, stop talking because I always, all I do is unleash more

0:34:59 Thomas: Rants, apparently. We need to get to our promised, uh, you know, our forecasted yodel segment on the Doppler Yodel, uh, yodel radar here, um, here we go, let's do it, after so

[0:35:11] much other stuff aside, let's get yodeling, Andrew, good old fashion yodel, I love a good old-fashioned yodel, and I think also this might be a good time to, uh, introduce our

0:35:24 Andrew: Uh our much uh our long-awaited much-promised optimist prime me versus negatron

[0:35:31] You, all righty, there will be days when we lose faith, days when our allies turn against us, but the day will never come that we forsake this planet and its people. You are either lying or you're stupid, I'm stupid, I'm stupid. Now I know less about Transformers than I do about the law. So is Megatron the good one? Meg. Megatron. Do you think? So Bob Budiansky, who named the first round of Transformers, was called in by Hasbro when he named Megatron,

[0:36:12] Megatron. Here we go. I'm going to do it again. What I just said, I can't say anything. And I am going down it, I'm telling you, okay?

0:36:21 Andrew: When Bob Budiansky named Megatron, Megatron, he was called into a meeting by Hasbro, and they

[0:36:27] were like, "This sounds a lot like Megaton," of nuclear weapons, and we're not sure that that makes us comfortable, and uh, Budiansky was working for Hasbro at the time, um, I was working for

[0:36:39] Marvel at the time. Uh, he said, well, it, it is the leader of the bad guys. And Hasbro was like, oh, okay, yeah, good point. And he transformed into, by the way, a uh a non-functioning replica of the author P38 pistol, right? Like a realistic-looking handgun. It's one of the reasons that that, that the original Megatron toy, it's, it's been a challenge

[0:37:05] to uh to re-release it. Like, I'm sorry, I think I accidentally changed podcasts to the Transformers fan club here. Hold on, let me just adjust my uh pod catching. So he turned into a gun. So that's you, Thomas. Yeah, that's pretty small. So he was tiny then, so Megatron was what, a couple, six, seven inches tall? Mass, mass, mass shifting, it would grow into large size. Oh,

0:37:30 Thomas: I see, nanotech, huh? Yeah, but anyway, Megatron is fantastic wide receiver for the

[0:37:36] uh, that's who he was so much right? That's, oh yeah, yeah, Calvin Johnson, those few years, but he was uh, he was fantastic. Oh, he's so good, so good. Uh, I'm still mad about that one call. You should be, that was, that was 100% a touchdown. Absolutely. All right, all right, uh, let's get on. So Optimist Prime, take it away here, uh, you're, what are you so optimistic? I think the tide is turning on impeachment. I know lots of folks are impatient. I know I've been encouraging patients

0:38:06 Andrew: And we are two years into, you know, the the Trump presidency. Um, here's

[0:38:13] some of my evidence, right? Number one, Congressman Justin Amash from Michigan just came out this past weekend in favor of impeachment. Um, we have reached out to his office, we are trying to get him on the show. Um, lots of people have done that, so maybe Opening Arguments isn't quite at the, at the top of uh the folks to to whom he's responding. We're, we're not going to give up on that. Um, and and continuing reports are that this was dumped on Friday, May the 17th, and so there's

[0:38:52] a little bit of, oh, did it come out late at night and then got buried? No. The week of the 20th, the next week, he continued to discuss at great length the fact that it is shameful that most Most members of Congress have not read the Mueller report, that the Mueller report, in fact, lays out, particularly in Section 2, substantial evidence of crimes, and that the only reason that Donald Trump was not indicted for obstruction

[0:39:23] of justice for the crimes in Section 2 is that the special counsel believed in following an Office of Legal Counsel memorandum that he was not empowered to indict the president. And so, so that's a significant development. Point two, we're now up to 32 separate House Democrats that have signed on to a resolution by Michigan Congressman Rashida Tlaib. It's H.R. 257, which says this is the precursor to impeachment, right? Right. It says the committee on the judiciary shall inquire as to whether the House of Representatives should impeach Donald John Trump, president of the United States of

[0:40:07] America.

0:40:08 Andrew: Now, you're going to say, oh, shall inquire and maybe ask politely. But this is the first step, right? This is how Bill Clinton got impeached. It begins with the House Committee on the Judiciary has to pass a resolution to say, we need to look at whether we need to impeach this guy. And then the Committee on the Judiciary votes whether to pass articles of impeachment, and then those go out to the full floor of the House of Representatives.

[0:40:33] So it's a three-step process and this is step one. Um, and the number of Democrats who support that, who have signed on to the resolution, right, like who put their name in print,

[0:40:45] uh has has doubled and uh and a Republican has joined on. So um, that, that's a big thing. Um, are we, so is this like uh not since the Lincoln-Douglas debates, it's

0:40:58 Thomas: Like, is that what the show, the Transformer show, it's Optimus Prime, the Negatron, and then they link in Douglas, they do, right?

0:41:04 Andrew: This is, they can meet in one-on-one combat. So that's what we shall do here. We will meet in one-on-one combat. I have so much more I want to talk about, Stephen Caulk, I want to talk about Trump's, well,

[0:41:16] what I'm asking is, am I, should I respond to those, respond to those? We'll go back and we will, we will. I'm

0:41:23 Thomas: Gonna transform, I was a a little handgun sitting on a chair here, but I'm going to transform into a

[0:41:29] sarcastic uh co-host. I don't know, way to use your acting. Yeah, so uh, yeah, here, Negatron, Negatron. Um, 32 Democrat, wow, that's so that's uh, there's only what, 60 representatives in the house, so that's already a firm majority?

[0:41:47] Right, I don't know, wait, hold on, uh, Optimus Prime, could you state for the record how many uh representatives would need to vote for impeachment in order for it to go through.

[0:41:57] 218. All right, 218. So yeah, getting close, you know, 32, 218, getting close. It's doubled in the past week. Doubled, wow. So another way of saying doubled is 16 people. Yeah, that's right. Maybe you'll get another 10.

0:42:17 Thomas: No, let's see. Real, in true Negatron fashion, session,

[0:42:22] I, look, what do you think's going to happen here? Do you think that, we've got one Republican, and he's already being labeled as a loser, he's a loser, you know, and the Trump Republicans are lining up to call Amash a loser here. What do you really think's going to happen? Do you think that there's going to be a wave of Republicans? You puny Optimist Prime, do you think there's going to be more than just like one or two principled people? Have you, is there a single

[0:42:53] senator? Sure, that we already control the House, the only place where a Republic, where, yeah, where a Republican has at all been anti-Trump is in the the branch of government we already control as Democrats, so

[0:43:05] sure, maybe someday we'll get it, we'll get a vote on this. I don't even know if that's for sure, uh, in the house, but is there anything in the Senate, any, any reason you would be optimistic about? So yes, and

[0:43:18] as predicate, let me ask you a question, do you think, and and and and I seriously,

0:43:24 Andrew: I don't know your answer to this question, but but it, but it will influence my my argument, do you think

[0:43:31] that there is substantial evidence of Trump's wrongdoing uh in in any of these areas is uh that is currently being shielded from public release. And let me define that, I think you know what I mean, but I'm going to define that as as extensively as possible, right? So that is from anything ranging from, you know, the photograph of Trump and Putin shaking hands with,

[0:44:02] you know, Trump holding a sack of of gold with a dollar bill sign on it, right? We know Trump doesn't email, but all the way to pieces of evidence that to any objective observer are as close to unassailable proof of criminal conduct that you can get. Do you think that there's evidence out there that looks like that? Do you think there's a smocking gun document? Like something we haven't seen yet? Have not seen, right, that the Trump administration desperately wants not to come

0:44:39 Thomas: Out. Well, I know, I mean there's other proceedings, but I don't know if that's, would qualify for what you're talking about. I mean, there

[0:44:45] aren't there plenty of things that have been referred out? Yep, but so, so okay, let me, let me ask, there's the documents, I mean, there could be the documents in the stuff we just talked about. Yeah, all of, all of that. So my question is, do you

0:44:57 Andrew: Think that smocking gun documents exist? And let me give you another, right, because the

[0:45:03] sack, the photo with the sack of gold with the dollar sign on it, right, we agree that doesn't exist. But something on this order, I think, does exist, which is an email from random Trump flunky A to Jared Kushner, from Steve Bannon to Jared Kushner, cc'd to Donald Trump that says, hey, spoke with the big guy. He says, we're still on board with respect to the Russia project, and as long as they deliver the goods, then he's going to eliminate sanctions. Something like that. Something that is horrible,

[0:45:51] right? But it's not written by Donald Trump because he doesn't email, but it is written contemporaneously by somebody who is in Trump's inner circle. Do you think

[0:46:03] a document like that exists? Wait, hold on, do you think that exists but it wasn't found by Muller? Yes, that I think was, was either not found by Muller or really found by Muller but has not been made public yet, right, is in one of the redacted

[0:46:18] portions, right, like is, um, you know, maybe, again, it isn't. As well, my question to you, and look,

0:46:24 Thomas: This Optimist Prime versus Negatron thing, I think we should have more loyalty to uh the truth and our personal opinions than to a silly bit, so I'm just going going to answer, honestly. I, look, here's my main, I would say my main point along these lines is, and

[0:46:41] I can, I could, I can turn the questions back towards you, Optimus Prime.

0:46:45 Thomas: Do you, don't you think that the Mueller report already outlines clearly

[0:46:51] impeachable offenses?

0:46:54 Thomas: And if your answer is, but hold on, there's going to be other stuff that's clearly impeachable offenses. My answer to you would be, why won't it just go down the same way this does, which is gets rewritten, gets repackaged

[0:47:07] by Fox? So I think that's a really, I think that's an excellent question, and and it's something that um

0:47:13 Andrew: I was definitely wrong about that. I want to own up as, an Andrew was wrong here, um, you are 100% correct, if the Muller report had come out about any other president at any other point in history, that president would be toast, that the impeachment proceedings would be underway, way, uh, and the question

[0:47:32] would be if anybody was going to continue to support the president, right, that the avalanche would be insurmountable. So I get the skepticism with respect to that, and I would say that where I was wrong about the Muller report was in underestimating the

[0:47:51] degree to which the Trump administration has been, Republicans wouldn't, yes, no, that's right, has been super successful in disaggregating the way in which people communicate and basically saying, uh, for two years, right, fake news, only listen to Fox News, don't believe anything you read, don't believe anything you see in print, even if it has my

[0:48:15] signature on it, as a check to Michael Cohen, right, like on a level that, did you see

0:48:21 Thomas: To bolster this. Did you see a few days ago where he's literally got, like, he went to Kinko's and made, like, a sign board that has, like, to put on the podium that's like,

[0:48:34] oh, here's all the money spent on the Mueller report. I mean, what world is this, Andrew? What stupid idiocracy.

0:48:43 Thomas: That was too dumb for Idiocracy. They're like, there's no way President Camacho would ever do this. President

[0:48:49] Camacho would definitely. Please do not besmirch the name of President Camacho.

[0:48:56] Look, yeah,

0:48:58 Andrew: Because, and again, as a point of fact, the Mueller investigation has made money through civil forfeiture. So,

[0:49:04] yeah, and the reason why I was wrong in thinking that the Mueller report would be the end is because the Mueller report requires being filtered through the media because it's 400 and some pages in length, and it's hard for people to read, and they have a low attention span. Um,

[0:49:29] I do believe that the Muller report will, is, is slowly gathering moss, right, like that's why, that's why I mentioned the Amash thing first and foremost, because, did you say gathering, yeah, like, you know, rolling down the hill, and I mean, it's the wrong, yeah, it is the opposite, whatever, it's a snowball, it's building as it, as the snowball rolls down, there you go, that's the metaphor I was looking for, but in any event, um, that, that it's, so what you're saying is, uh, the noodle, the noodle is definitely moving the noodle, um, but, but yeah, I, I underestimated, I, I miss, underestimated, right, because I both underestimated and I totally missed it, um, that the

[0:50:10] fact that the Muller report requires analysis and the fact that Robert Muller speaks in a way, uh, writes in a way that, that defies sort

[0:50:19] of easy, right, like there's no, there's no single line, like, it would, I think it would be different, he's not Ken Star, he's not Ken Star, that's right, if, if Robert Muller were not a, a right-wing career Republican, right, and, and, and again, I don't mean that as a slur, right, who also believed in sort of bending over backwards and giving every possible benefit of the doubt to a president who doesn't deserve it, um, despite that, right, and, like, when you read the Muller report knowing that about Robert Muller, then you read it with the eyes, all right, just imagine

0:50:57 Thomas: If it were written by the left-wing equivalent of Ken Star, I don't know who that would be, but just imagine what

[0:51:03] it would be like. That's right. And but I want to make sure, I want to make sure you get to your other bullet points. If Robert Muller had just said, if, if it were not for the OLC memorandum, we would have recommended an indictment, I really would, of Donald, why didn't he just say that? By the way, it's so frustrating, I, I think, okay, I, I think because

0:51:29 Andrew: Of the misguided effort, and we haven't really talked about this that, that much, um, in addition to saying I do not reach a terminal finding, I don't make a traditional, uh, prosecutorial judgment, because of the Office

[0:51:45] of Legal Counsel ruling that a sitting president cannot be indicted, that there's also that this moment where he says, and I think that it would not be fair to say that we would recommend an indictment because the president can't defend himself because there won't be an indictment. I

[0:52:03] I, I just think that is, look, we talk about steel manning, we've done it in this episode several times, it is steel manning gone awry, right, because, but let's spin this out. If this were a traditional prosecutorial judgment, the next step would be to go to a grand jury, and, you know, who doesn't get to rebut things before grand jury? The, the right, like, the whole point of going to a grand jury is that it is ex parte, the target does not know that they are a target, they do not get to appear, their lawyer doesn't get to be there, they don't get to rebut it, then all the grand jury gets is a one-sided presentation of the evidence, and so I believe that consistent with the OLC opinion, Robert Muller

[0:52:46] could have delivered a, an ultimate judgment, could have written that sentence. I think he didn't because he bent too far over backwards, and I think he honestly thought, again, now we're getting into psychology, but I think he honestly thought the report was going to be such a bombshell, all that, that, that was enough

[0:53:05] right. This is why I think it is crucial we are still in negotiations for Robert Muller to testify before, uh, the, the, the House, uh, Judiciary Committee. Um, I think when Robert, I think A, that Robert Muller will testify, and B, when he does that

[0:53:23] will be the first question that is asked. And, and I, I've thought

0:53:30 Thomas: About this very thing, and I, I really don't, I have, have no faith that he's going to give us an answer that we'll like, I think

[0:53:36] yeah, no, it, look, again, I'm a lawyer, so I'm used to putting error bars on, on recommendations and predictions, I would put 80% confidence interval that he will answer that question squarely, because I think, I think that what he said is, and, and look, I think part of this is, and it really is, it's kind of like, I'm going to make a baseball

0:54:01 Andrew: Analogy here. There's an unbelievably stupid rule now that when a pitcher

[0:54:08] hits a batter and the umpire deems it to be intentional, that then the umpire warns both benches and says, okay, if anybody hits anybody else, then they're going to get thrown out, right

[0:54:21] and so what that incentivizes you to do is to be the first guy to hit somebody, be the first one, because there's a long, because there's a long-standing tradition of, you hit a, a guy, and then the opposing side gets up and they hit your guy, right, and, you know, whether you think that that kind of, you know, baseball analogy is the way to handle things or not, like that, at least has

[0:54:39] a kind of frontier justice logic to it, right, the, the new rules mean, oh, they hit our guy and then when, when we hit their guy, our guy gets thrown out and everybody gets suspensions and you charge the mound, and it's just a mess, right, um

[0:54:51] yeah, it's, it's a game theoretic bad way of... And here's the game theoretic bad model that I think is happening. I could be wrong on this. I think Robert Mueller is looking at what Jim Comey did in 2016 and going, "This clown-horn

[0:55:10] and guy, right? He decided to make it about himself and he made characterizations in the July statement, right? Right. He said Hillary Clinton's activities, while extremely reckless, were not criminal. Right. Extremely careless.

[0:55:29] Right. We're not criminal. And if he had just said we're not criminal, then we wouldn't be here. And then if he hadn't brought it up again in October, we wouldn't be here.

[0:55:42] I'm not going to make that same mistake. Right. Right. And now, look, like that. It's why I brought up the baseball beaning strategy. Right. Because obviously Comey being loquacious and characterizing stuff worked against the Democrats, and now, and now this will work against it. I, it's, it's that, it's excellent, it was a Megatron, the one, does he have any sort of like next time gadget catchphrase that I can use when I feel like I've made a good negative? So, so I will let you, because there have been multiple Megatrons in Transformers history, um, oh geez, the Beast Wars, I withdraw the

[0:56:22] question, I don't care, you're gonna get the answer, Beast Wars Megatron's catchphrase was, yes, was, yes, it was, is he more like a higher, or is like a, it's a gravelly low, delightful, yes, it is, it is fantastic, yeah, I will, I will send you, I'm trying to

0:56:44 Thomas: Get you to get to your other points. I think it's funny, like, I'm trying to, like, hey, Andrew, I want you to get your other bullet points on

[0:56:50] the thing you're like stop interrupting me no uh which is fair but I want you to get to your other points here before we run out of time so let's put all all that all that all that together right I think

0:57:02 Andrew: Muller will testify before the House and I think again, don't know for sure.

[0:57:08] I think he's not happy with how his report is being spun by Trump partisans and loyalists. I know he's not happy about Bill Barr, he's not happy because he wrote three letters and made a phone call about it, right? So yeah, um, put it, put a pin in that, number two, if you believe, as I do, that there are documents that are smoking guns that tell more of a story in a concise way, that make it impossible, unless you're willfully ignorant, and again, look, like 30 to 35 percent of the country, like you can put the the payment from from Donald Trump to Michael Cohen that says, "Ray, Stormy Daniels cover-up," and they'll applaud when the president

[0:57:52] says, "I don't do cover-ups." I mean, I, I get it, those people cannot be reached. But if you believe that there's worse stuff out there, the disaggregation of the form that we've talked about of documents being produced by Deutsche Bank, by Mazars, and, and let's talk about, there's a way of of backing into the news, with the indictment of Stephen Koch, the bank president, on May 23rd by the Southern District of New York. This was the dude who convinced his bank to loan Paul Manafort over $10 million in refinancing his home, even though there was no way the bank should have done it. It made, it made Manafort the bank's single largest customer.

[0:58:42] He wound up- oh, God. That is not where you want to be as a bank. They wound up writing off the loss. They took a $12 million loss on it. This was the dude who said, "Yeah, I'll refinance your home and make sure the bank gives you the money you want. You'll get Donald Trump to give me, and then he ranked in order the jobs that he wanted in the administration. And mind you, this is a Chicago bank president, and he wanted, in this order,

[0:59:12] Secretary of the Treasury, Deputy Secretary of the Treasury, Secretary of Commerce, Secretary of Defense, Secretary of the Army, Undersecretary of the Army, or one of 19 ambassadorships, including the UK, France, Germany, and Italy.

[0:59:36] Wow, so, uh, he, that's like, if I was like, "Oh, I, I got

0:59:42 Thomas: A number of jobs I could do," um, office manager, you know, maybe janitorial, president of the Galactic Federation of Planets, uh, could be secretary, you know, like what secretary

[0:59:55] defense, uh, I, I like the Secretary of the Army is my personal favorite, um, and then, uh, in

1:00:02 Andrew: Exchange for Koch agreeing to uh put not just his thumb but his entire body

[1:00:09] on the scale in favor of Paul Manafort, Manafort did the following. So he approved a $9.5 million loan, plus additional $6 million loans, all this stuff. Then Manafort appointed Koch to the Trump Economic Advisory Committee. And then in late November, early December 2016, after Trump had been elected. And by the way, I love these indictments we've talked about before, where when you make an indictment that references someone who is not a subject, you refer to them as lender one. Here, they refer

[1:00:45] to Manafort as borrower, and they say, borrower was the campaign manager for a successful presidential campaign. Oh, well, that doesn't narrow it down any. And so it says, and second, in or about November or late December 2016, after the presidential candidate had been elected president, and after borrower's first loan from the bank had been issued, and while a second set of loans worth more than six million dollars sought by the borrower was pending approval by the bank, the borrower used his influence with the presidential transition team to assist Koch, recommending Koch for an administration position. He was formally interviewed for Under Secretary of the Army at the presidential transition team's principal offices is in New York, um, and then it just says Koch was not ultimately hired.

[1:01:34] not surprising that, uh, when you're, well, I don't know, we just talked about, Ben Carson, is is Koch less qualified to be undersecretary of the Army than Ben Carson is to be secretary

[1:01:46] of Housing and Urban Development, that's a, uh, you know, only God can answer that, it's like that's one of those unstoppable force meets a immovable object questions, uh, that all I wish is that I had an infinity stone glove for that one, but, um, is that in the Transformer? You can't confuse me like this, I don't know, and then as a result of its independent review of the bank's loan in July 2017, the bank's primary regulator, the Office of the Comptroller of the Currency, and again let's point out, right, let's point out the drain the

[1:02:17] swamp nature of this, the Office of the Comptroller of the Currency is a division of the Department of the Treasury, of which Stephen Koch wanted to be secretary of the Treasury, right?

[1:02:29] and, and again, of which Steve Mnuchin is Secretary of the Treasury, and we've already talked about in episode 273, uh, how corrupt Steve Mnuchin is, right? Like, so it, is you cannot cover up swamp, the swamp, everybody's swampy activity, you probably obscure some of your own, but, uh, Mnuchin's treasury was unable to, uh, to cover this up, um. The OCC downgraded the credit quality of those loans uh to Paul Manafort as, quote, "substandard," concluding

[1:03:03] that the banks, they don't have a, uh, totally fraudulent level of credit, well, concluding that the bank's classification of them as quote "satisfactory" had been inappropriate, uh, and then to conceal the unlawful nature of the the scheme, Koch made false and misleading statements to the OCC regarding those loans. Among other things, Koch falsely stated to the regulators that he had never desired a position in the presidential administration. Um

[1:03:28] so a bank had to write off 12 million dollars in connection with this. Um, Caulk is charged with uh violating 18 U.S.C. 215, uh which says, uh "Whenever an officer or director of a financial institution corruptly solicits or accepts or agrees to accept anything of value, intending to be influenced and reward with the connection with any business or transaction of such institution, shall be fined not more than a million dollars or three times the value of the thing given, whichever is greater." So, you know, could be thirty six million dollars, or imprisoned not more than 30 years

[1:04:06] or both. So this is super serious crime. And again, the more we get out to the periphery and we see folks like this who have not been treated well by the Trump administration, the more you increase the potential of your Michael Cohen's, the more that you have the greed of Deutsche Bank and Capital One that vastly

[1:04:31] exceeds what the Trump administration can possibly give them. The more I think we're, that you just can't, I think Donald Trump thought that he could run this presidency the way he runs his businesses and and he's learning that he can't right that you can't step on people

[1:04:50] and stiff people and use your leverage and lean on people and promise them, and like, there, there's some folks that are too big for Donald Trump to tell me so. Yeah, after about four years and a narrow electoral college loss, we won't put up with that anymore. Well, we have to go back to the b segment for that a lot of this is moving more quickly than lost stuff usually does

[1:05:16] B segment of last episode? Yes, I think, yeah, it's almost as if we record these episodes back to back.

[1:05:26] Silence, Optimus Prime, don't reveal our, no, uh, is there more you want to get, you, I don't want to, I yield

1:05:35 Thomas: My time because the, you know, it's sort of like whoever gets the first word or the last word or whatever you want in these. I think in this day and age, the negative outlook already has home field advantage.

[1:05:47] You know, like I, I'm, I'm, I'm not even really that stressed about this debate. I think it's so easy.

1:05:53 Thomas: Who would have thought? I never would have imagined in a bajillion years, two years ago, say, that

[1:06:00] Trump's own lawyer, like his number one guy, his Tom Hagen, his Robert Duvall, the number one guy. I never would have thought that like that guy will turn on Trump and it will make almost no difference. I never would have. Well, like I'm to the point where I'm not even, this is, I'm not even making this up. If Melania defected and was like, "Yeah, here's the whole thing," that I he would find a way, they would spin it, "Oh, she was a Democrat the whole time, she's

[1:06:31] just trying to get the easy deal. I've never had a daughter, you can't prove I had a daughter, I wasn't even married to Melania, ah it was awful the whole time, she was just wanting me for my money or something," you know, he would find a way, so

[1:06:44] that's my answer to this, to this Koch, who, uh, who's a real cock, I, I gotta say, but who, I don't even know about, I haven't heard of, or I've heard him mentioned, but it's not as though when I hear, "Oh, they got this Koch, uh, guy," uh, that means the administration is coming, is crumbling

[1:07:03] down, nah, not happening, that's my negatron, so, I, I just, I just want to add, I, I loved

1:07:09 Andrew: Your uh I I yield my Because that brings us full circle with the Ben Carson. Did you see the other Oreo bit was during the same testimony when when being asked

[1:07:21] a hostile question, I think by Maxine Waters, but he was being asked a hostile question. And he said, "I reclaim my time." And the representative said, "No, you don't get to you're the witness here. You don't get to do that.

1:07:40 Thomas: That's like, I'm sure there's some Simpsons bit of a witness being like, I object or something, you know. Yeah, no, I did, I did see that, mention that's that's pretty funny. Yeah, that's not how that works. But don't worry, everybody, we still have rocket scientist as

[1:07:52] the way to say somebody's smart, but I think brain surgeon, that's been, yeah, it's been ruined by this. It has been. Just go for, uh, go for, go for rocket scientist, I think that one's still, until a Trump supporting rocket scientist goes and ruins some, like, like, unrelated field that they have no knowledge in.

[1:08:10] Yeah.

1:08:12 Thomas: Okay. Well, I yield my Negatron time because I've just such a home field advantage. Any other Optimus Prime points you want to make? We're good. All right. Well, I think I easily won that debate. Master debater over here, Andrew Torrez, Optimus Prime.

[1:08:26] We'll see. We'll see how it goes.

1:08:28 Thomas: I don't, I do. Do you think we're going to get a, look, should we, should we nail this down? I don't know if we've ever nailed this prediction down. Do you think? Optimist Prime versus Negatron prediction. Will we get a, let's see, how should we phrase this prediction for the wiki? Do you think we will get a vote, an impeachment vote? And will that vote pass? Is that a good way of asking that? Before the

[1:08:54] 2020 election? Yeah, so. As in like before the voting, before voting day. The question is, will the House Judiciary Committee refer out articles of impeachment before November

1:09:10 Andrew: 2020, is that, is that the prediction?

[1:09:14] Well, what happens when they refer, that is, it goes to the full House of Representatives for a vote. And so they start having, all the, yeah, but have the House votes, then they impeach, right? Like, that is, that is, Trump will be impeached, right, in the same way that Clinton was impeached. Okay, sure. So, do you, you think that'll happen, and do you think that the vote will pass? So, at that point, let me say two things. Number one, I know that this should be an easy yes if your whole thing was the, yeah, yeah, no, that's just, look, look, so I'm gonna, I'm gonna, I'm gonna give you two parts of an answer here, right? Um, I would say I now place the odds of the House Judiciary Committee committee referring

[1:09:57] out articles of impeachment to the full House of Representatives at better than 50-50, right? I, I would still say not much better, right? Um, but I, but I put in that category, we were going to talk about this, um, billionaire Tom Steyer has founded a Need to Impeach liberal group, um, and his group is targeting, uh, Democrats particularly, uh, in the, in leadership positions, propositions, including Steny Hoyer, Adam Schiff,

[1:10:29] Richard Neal, folks that the group views as being long on rhetoric and short on action in terms of impeaching Donald Trump. I think the momentum, I would have felt differently about this a couple of days ago. I think the momentum

[1:10:47] is in excess of 50 percent towards the House Judiciary impeaching out, referring out articles of impeachment. Look, is this how predictions work, guys, when we say, hey,

1:10:59 Thomas: Make a prediction, and you say, I think the odds are like 52, so that, how am I going to hold you to this

[1:11:05] prediction if, look, if I'm wrong, I'm wrong, right? If they don't, if they don't refer out, would you be wrong? If I say, predict, the uh, will there be heads or tails on this coin flip, and you say, I think it's 50-50, how, how can I be proven wrong? I said I think it's slightly better than 50 right now, so I'm saying, if it goes the other way, I'm saying that, right? If you flip a coin, I, and I say I'm

1:11:30 Andrew: Going with heads, right, and I'm, okay, so you're going with impeachment, all right, but I, I want to be, I want to bracket it and be clear that

[1:11:37] um, you're okay, you're just saying you're not super confident in the prediction, you're not, yeah, yeah, okay, all right, that's fair, that's, but I would have said, pre-muller report coming out, right, and, and, and within the first, a week after the Muller report came out, like, I had that same feeling you did, right? We broke it down on the show, I said, I think the media coverage on this is going to turn, it did, but, but, slower than I expected and without the backlash that I expected, I was at my lowest on that, right? Like, I would have said, I come out on no, there will not be articles of

[1:12:17] impeachment. So, I get the despondency, I get the negatron, I think that we're moving in the right direction. So, if

1:12:27 Thomas: That vote happens, do you think they would have a majority?

1:12:31 Andrew: Same thing. I think if the vote comes out, then we will get a majority of of Democrats

[1:12:37] that, that vote for it, will get, it will pass the House of Representatives. Okay. Yeah, I, and uh, just, just to, you know, be in fairness, I'll, I'll make predictions too so I can be wrong, I, this is time I'm

1:12:49 Thomas: Also similarly not confident either way. I, I see what you mean. Now it is very, feels pretty 50-50-ish, but, but, you know, you're going positive, I'm gonna, I'll lean the same amount negative, where I'm not super confident, but. But I

[1:13:02] think that it'll be too easy for Nancy Pelosi and others to just say, let's just have the stupid election. I think that will be, they're too scared. Somehow, everybody, Democrats have convinced themselves that this is such a scary thing to try to do impeachment, even though I don't really think it is. And I think that it's their constitutional duty. And if impeachment doesn't apply here, it doesn't apply literally at any time ever. Ever. So, I disagree with it, but I think they'll be too tempted to just say, let's just win an election and forget all about this. So, I'll go as confident as you are that positive direction, which is to say a little better than 50-50. I'll go a little better than 50-50. Not, I would say if it does

[1:13:45] get to a vote, then, gosh, I just don't know.

1:13:52 Thomas: Maybe I'm going to switch it up. If it does go to a vote, I think it does pass, but I don't quite think we'll get there, so I, I guess I'm kind of hedging my bets a little bit. But, uh, there you go, I think if we've, I think it won't be allowed to get to a vote if they don't have the votes probably, so that's how I'll go there. All right, we are way over time, and

[1:14:11] we need to thank our new patrons. And I want to say, I think that is the strongest counter argument, right, that that's, that's what I, I wrestle the the most with. Um, that, that as we get, as

1:14:24 Andrew: The information comes out, and it's late 2020, uh, you know, or early 2020, that, that the prevailing view is a kind of, let's just, you know, let's just get on, let's not cloud the

[1:14:36] message of the Democratic nominee. I think it's a good argument, right? So, oh, I don't think it's a good argument, but no, no, I think it is, I think it is, let me be clear, I don't think the, the underlying substance is a good argument, okay, I think it is a good argument for you that some politicians will decide not to

[1:14:55] bring impeachment articles, uh, because of the, of the miss political evaluation, and, um, and we can talk about that on another show, because you're right, we're way over time, we're way over time, and it's time to thank our new patrons over at patreon.com/law, and we begin with Patricia Butcheck, I

1:15:14 Thomas: Don't think that's a joke, that's one of those names that probably Patricia has to explain all the time. Patricia Butcheck, Kiachiera, Amanda Jones, James Stephen Cuellar, maybe?

[1:15:27] ChocolateTort IcecreamCohen. Oh, nice. Sunny, a real BRUH moment. Instead of a real aha moment, a real BRUH moment, I like it. John Reese, Jeffrey Cook, Ryan Scott, Jamie, Ben Schultz and Locusts with pitchforks and glow sticks, I

[1:15:47] like it, and thank you to LSATurday Night Fever, I did this, it's a really good pun when you read it, it's easy, LSATurday Night Fever, it's LSATurday Night Fever, yeah, it, but nobody, I guess people do call it the LSATs but yeah, uh, yeah, all right, let's start over again and thank you to LSATurday Night Fever, fantastic pun, Robert Armstrong, Andreas Juul Willumsen, Reinaldo Forbes, that's a fantastic pun, Jen C, Joseph Van Allen, Ben Biggins, Jiminy Terwilligers Radioactive Man, that's

[1:16:28] awesome, is that like in Biggins the Soul, or is that just someone's name, Ben B, oh no, looks, looks like it's just Ben Biggins, his name, but yeah, I like to think the fact that that was juxtaposed with

1:16:38 Andrew: Jiminy Terwilligers Radioactive Man made, you know, poisoned the well there. Cory Rylan, ChancesRslim, and Stuck In Alabama Send Help. And hey, look, you can help yourself in Alabama, right? Like, that that's, you have a sitting Democratic senator. I know it feels like you, you know, you're

[1:16:56] in some kind of, you know, far right, deep red nightmare. But, you know, you can make that happen.

[1:17:06] Optimist Prime. And now it's time for an impossible real property question. Let's see how I did on this one. Oh, no associate of this firm has ever failed the bar exam. No kidding. Yeah, this was, uh, the bar examiners deciding that the, uh, underlying question here was too easy, right, which was homeowner, uh, becomes ill, he's an aunt, dude, I'm gonna die soon, I want to give my house to my nephew, uh, but my nephew

[1:17:37] is in the military, he's overseas, so I sign a deed and uh, and I give, give it to my nephew's friend who isn't overseas in the military. And I say, hey, look, Bob, my nephew, I totally want this guy to have my house. Please take the deed for him. And when he gets back, you know, that'll be a great way to welcome him back to the United States.

1:18:01 Andrew: Then nephew's friend learns that my death is imminent. And so one day before I die,

[1:18:07] He runs down to the clerk of court's office, records the deed. Shortly after that, the nephew comes home, um, talks to his friend, learns about the deed, takes possession of the house.

1:18:20 Andrew: Meanwhile, I have died intestate, which, as you correctly pointed out, means without a will, uh,

[1:18:26] and my daughter is my sole heir, and then she says, uh, I'm the sole heir, I get everything, uh, then the nephew comes forward, brings a lawsuit, and is like, well, you get everything except the house, because he gave me the house before he died. And then it says the law of the jurisdiction requires only two witnesses for a will to be properly executed, which is a terribly deceptive, attractive distractor here. I wonder how many lawyers we're going to catch with this one. The question then becomes not who's right, because it's obvious the nephew is going to win, the nephew gets the house. The question is, why does he get the house? What's the most likely explanation? Explanation, answers were, A, because the deed was delivered when the homeowner handed it to the nephew's friend, B,

[1:19:14] the delivery of the deed was accomplished by the recording of the deed, C, the homeowner's death consummated a valid gift causa mortis to the nephew, or D, the homeowner properly executed deed was effective as a testamentary document. So first thing you excluded A and C. I have to read from the textbook on this because I don't know what a gift causa mortis is. I mean, like, I, I can, it's, it's not hard for me to guess, right, like causa is probably cause and mortis I know means death, but, um, but the, the book says that that's a good elimination. Incorrect, a gift cause a mortis may only be made of personal property. In addition, the gift was not made in view of pending death from a stated peril. The facts only note that the homeowner was ill, so, uh, good elimination, Thomas.

[1:20:04] Thomas's third chance, I feel like maybe it was A. Okay, let's see. And why don't we cut to the chase? It is, in fact, A. Ah, should have known. And here's why, right? Because all of the facts around this are designed to be distractors, right? This is just, I conveyed property to somebody else. And then later I died, right? Right. And so then the question is, if as in choosing between, so, so

[1:20:35] you eliminated D, that was the real. And I really want to look to see if lawyers seize on that effective as a testamentary document. This has nothing to do right with a will with a will. Right. It's just like I said, I just messed up my I really should have done a instead of instead of B. Yeah. And so so here's the difference between A and B. Right. A says the deed was delivered when he handed it to the friend, right? And B says the delivery of the deed was accomplished by the recording of the deed. So run that as a counterfactual, right? Imagine that if this

[1:21:12] hypothesis, if this question had said, same thing, I get ill, I convey the deed to my nephew, I give it to his friend, but the friend sticks it in a safety deposit box and forgets to record it, right?

1:21:25 Thomas: I guess I then don't understand what recording even means and what, yeah. Yeah, maybe it's like I

[1:21:31] don't get real property or any of this, could be. Yeah, well, it's almost like that, right? Well, one of the distinctions in real property

1:21:37 Andrew: Is that a lot of the documents are required to be made public, right? So deeds

[1:21:43] have to be recorded at the recordation office. You and I have contracts together. But because he had the two witnesses and he did all that, that was already enough. Yep, and again, right, because this was not to convey the deed, right, does not require you to go down to the office and

[1:22:02] record it. So it becomes effective upon conveyance, right?

1:22:08 Andrew: And that's what this is meant to test. And again, this is one of these that you can actually reason sort of by

[1:22:14] fairness to the right result by asking yourself. No, I get it. Rub it in. You know, I

1:22:20 Thomas: Let down the listeners. I let down my family.

[1:22:23] I let down my new baby, Arlo. I'm feeling bad about having... I got myself down. No, I should have gotten this one. As I reread it when you were going back through it, I was like, oh, crap. I should have been going between A and B. I think D was kind of an interesting distractor. But yeah, I should have known that it wouldn't

[1:22:46] have mattered if they recorded it. But hey, it's real property. It's tough. That's how it goes. I'm feeling bad about having lost that debate to you. So I'm just taking it out on you here. Don't feel bad. The forces of evil are just stronger than the forces of good in this particular world. We're not. In the evil will always triumph because good is dumb? Is that an actual quote? Because if it is, I want to... I want that. In Find that clip. Yeah, that's from space balls That's the end of space balls That's awesome. Okay, so, uh, yeah, I want that quote in there somewhere. Let's put it. We'll have, we'll put that in the, uh, in the bumper or something. All

[1:23:23] right. Well, uh, I failed miserably and I need to go back to real estate law school. But, uh, let's find out which lucky winner conquered the TTTBE this week. Meanwhile, at the Hall of Justice, this is Coptimus Prime's arch nemesis and rival, Hans Koff of the Go-Bots. Andrew is too busy playing with his toys to use the time machine, so it falls to me, the obviously superior alternative. This week's winner is A.R. McKinney, who said, A is ridiculous and C feels like a distraction. B is tempting. But

[1:24:03] I believe the fact is he deeded the house.

[1:24:08] D, do you get it, the joke? D.

[1:24:14] Go follow at AR McKinney, but be cool about it. Sneak up. Don't let them see you following. Hans Koff, out.

[1:24:26] All right, well, listeners, we don't know exactly when the Q&A is going to be because that's the bad news. The good news is the reason is Andrew himself will be in California, and we are going to see if we can do a little live patron Q&A together,

[1:24:45] reunited at last. We haven't, gosh, when's the last time we got to see each other? It's been a while. Yeah, it's been way too long. Way too long. I am so excited, really excited for you to be coming out here. I'm going to be, we'll just be partying the whole time. We'll see if anything gets done. But no, we take it back, we're gonna make sure the Q&A happens. We'll let you know precisely when we can work that. We just don't know what the schedule is going to be like given

[1:25:09] that andrew will be traveling and all that so but that's a little little uh little surprise it's gonna be fun I can't wait, and hop on Patreon to, of course, do the Q&A thread, which I'm sure is already up. And thank you for listening. We'll see you when next we see you.

[1:25:31] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

[1:26:20] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.

[1:26:29] Opening Arguments is produced with the assistance of our editor, Brian Ziegenhagen, our production assistant, Ashley Smith, and our researcher, Deborah Smith. Special thanks to Theresa Gomez and the entire OAWiki team, follow them at at @OAWiki, and a big thank you to our Facebook group moderators, Alicia Cook, Natalie Newell, Emily Waters, Eric Brewer, and Brian. Check

1:26:47 Andrew: Out the Opening Arguments Facebook community. And finally, thanks to Thomas Smith for creating the show's theme song, which, which is used with permission. Leave that in and let Brian Clownard it out. Yeah.

[1:26:58] Sorry. Wow, that took him.