OA283: Mueller Speaks! (& Clarence Thomas Pens a Nonsensical Concurrence)

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 283. I'm your host, Thomas Smith. That over there is Andrew Torrez. How are you doing, Andrew?

[0:01:26] I am fantastic, Thomas. How are you? You? I'm so excited because we got special guest Robert Muller, Bob Muller, are you on? Oh, we're having a little problem with his connection, but he did speak.

0:01:40 Thomas: So we'll just use the four things he said to maybe, to maybe, uh, talk about some issues around the show. Oh.

[0:01:46] I'm excited, we got so much to talk about. Go ahead. Oh, yeah, no, I'm, I'm just excited to get going. All right, well, a little, uh, pre-show announcements. Well, a couple things. Number one, uh, and I

0:01:59 Andrew: Know you're too modest to do this, but I really want to give a plug for SIO 194 that just came out yesterday, in which you and Hall of Fame patron, friend of our show, friend in real life,

[0:02:12] Eli Bosnick, discuss milkshaking.

0:02:15 Andrew: A couple of folks have asked us to sort of talk about the legal aspects of that and I think you and Eli just handled that absolutely 100% perfectly. So

[0:02:28] uh that I and and I don't change my mind is not the right word right because I am in total agreement but I, I think we, had a throwaway line on tuesday's show in which uh, I said you know you and you and I might uh disagree on on. Milkshaking and and and it just it's it it

[0:02:47] couldn't be more dead on I refer all questions to seriously episode 194 I'll

0:02:53 Thomas: Be the sarah huckabee sanders for you uh Andrew Torrez and milkshaking except more not a liar how about that oh well I appreciate that go ahead and uh type in serious inquiries only to wherever find podcast stores near you and uh check that one out yeah I I think we uh I think we cracked it on milkshaking I really think that was uh I'm glad eli and I kind of came to the same conclusion it sounds like you did too so I mean if us three agree on it then everybody should check it out and come on Yeah,

0:03:24 Andrew: Yeah. Pre-show number two, as always happens, as we are recording this, Judge Amy Berman Jackson is holding a hearing And entertaining oral arguments

[0:03:36] in the Roger Stone case. Um, there are two sort of principal arguments that are pending the press is really focused on the first set which are the arguments that uh robert muller did not have legal authority to begin the investigation as we've talked about on this show at great length search the archives for andrew miller uh who who by the way uh dropped his appeal uh yesterday those arguments are nonsense right Right. And so it doesn't matter. They're not going to win. I don't really know, why they're sort of commanding press attention. But the interesting thing that might come out of it are the requests by Stone's lawyers to

[0:04:20] have access to the unredacted Mueller report. Report and um from everything that I can tell in you know, sort of attempting in the background to uh to follow the oral arguments today while uh while prepping for the show um judge jackson might be receptive to

[0:04:39] that, she might order an in-camera inspection I think judge jackson would love to see an entire unredacted copy of the muller report so to me that will be you know know sort of the real takeaway um, if if there's a bombshell you know maybe we'll record a bonus episode um if if there's just corroborating news you know follow our twitter feed that's at open args or if you're on facebook head on over

[0:05:05] to uh yodel mountain the uh oa facebook community both of those links are in the show notes so if you want to track that um that's that's how to uh to stay abreast of the judge jackson roger stone developments awesome I'm seeing another pre-show announcement what a new record probably tied for the record yeah yeah I think that's right? I am really really excited about this one um in episode 273 that's a month ago it's actually five weeks

[0:05:36] ago right now we broke down the lawsuit against sears right five weeks

0:05:42 Thomas: Oh wow Wow, when you have a baby, time is a weird thing.

0:05:46 Andrew: April 23rd. It is the lawsuit by Sears against Treasury Secretary Steven Mnuchin and former Sears CEO Eddie Lampert. And the allegations are that Lampert and Mnuchin knew that Sears was bankrupt. And nevertheless, they stripped the company of it's assets, looted all the valuable stuff in order to distribute those funds to the shareholders, of which they were the by far majority beneficial owners, and

[0:06:18] thus leave the company in miserable shape, heading into bankruptcy, thereby depriving the creditors of assets that could satisfy their outstanding obligations. I was

[0:06:30] really, really proud of that episode. It has been picked up by friends of the show, Liz Warren, Alexandria Ocasio-Cortez, who have issued a letter to Mnuchin demanding that he answer questions related to Sears. There is a really really intriguing development uh just breaking right now that nobody has picked up on yet it involves a brand new mystery villain and this is somebody who is so obscure he does not as of

[0:07:08] this recording have a wikipedia page he does not have a publicly available photo on the internet net wow um and it's me it's me everybody it's me well uh those first two uh well no you do have publicly available photos on the internet but uh even if you satisfied those two requirements you would not, satisfy the third which is he's about to be handed control of 115 billion dollars in government managed private assets uh and uh he is intricately connected with all of the sears nonsense were going to do that a

[0:07:47] huge deep dive, super excited about it on Tuesday. I only have like 30 billion or something, that's yeah, okay, fine. This is this is think of this as the mirror universe J. Zachary Terwilliger. Okay? He's got the thin little goatee. This is Z. Zachary Terwilliger. No, T. Zachary Terwilliger. So I would love it if our listeners were able to figure out uh who the mystery villain is uh before Tuesday show, but um, but I really, I really am excited about it. Uh, I, I want to, I want to tease that. So if you haven't listened to 273, you know, if you're, if you're a Friday show guy or gal, uh, go back, listen to 273 and uh and stay tuned for uh for our upcoming Tuesday episode 284, because it's going to be a deep dive. It's going to have all that kind of classic OA goodness, but it is couldn't be more relevant, and I think we are the first to sort of talk about all of this interaction, so

[0:08:45] um, so I'm excited about it. All right, wow, what a, what a teaser. Time to uh to move on to

0:08:51 Thomas: The current agenda, but I'm excited for Tuesday. And yet another pre-show announcement before we get going. Uh, we are going to be doing the Patreon q a the live q a This is so exciting, Andrew, I, I can't believe it. We are going to be together at last, together at last. We're going to be in San Francisco hanging out with uh puzzle and a thunderstorm friends, and we just realized we can bust out this Patron live q a on Saturday, a little bit of a short notice for you there, but it's going to be great. Saturday we're going to do it at 5 p.m. Pacific time. That will that's 8 p.m. Eastern time, of course, and we will be together.

[0:09:28] we'll be live. I can't wait. Yeah, might even have special guests that uh pop in in

0:09:34 Andrew: The background, so uh I'm, I'm looking forward to it, but, but I'm most looking forward to you and I

[0:09:40] being together, Thomas, definitely. Uh, I think it'll be hard to not have special guests popping in the background, and but of course you can already go to patreon.com and uh find the question thread, the Q&A

0:09:54 Thomas: Thread. You can either pose questions or you can just go vote on the ones that you want to hear. We tend to use the uh the favorites, the stars, whatever the button is, as a gauge to see, you know, who's interested in what question, because you know, Andrew,

[0:10:06] it's impossible to get through all of them, but I'm so excited. So make sure, set your watches, everybody, set your little calculator watches or your phone, whatever, uh, for Saturday. That's this Saturday, June 1st, at 5 p.m. Pacific. All right, let's go to our

[0:10:25] first segment. Andrew Was Things, I'm asking you if you know the difference between right and wrong. Maybe, maybe not, maybe I was indeed things. So first I was wrong in our last episode on pronouncing the medical name of the Plan B birth control. Um, it is spelled were you, though? Yeah, it is spelled L-E-V-O-N-O-R-G

0:10:57 Andrew: -e-s-t-r-e-v-o-n-o-r and people are telling me that lev is pronounced leave. That makes no sense, that's got to be lev, uh, but, uh, but folks in the OA Facebook community, uh, Heather McMillan

[0:11:10] some others have said no, no, it's definitely levo something, I guess some people say lever instead of lever.

0:11:16 Andrew: Right, yeah, maybe. But I blame 13th century Saxony for saddling us with this unpronounceable. No, I blame big

[0:11:22] pharma, or, or any pharma, moderate size. Well, there you go, the unholy alliance. As though being wrong about a pronunciation of a drug is anything at all like... it's it's a uh toss-up on all those, I know there's no way you could pronounce most of them, um, what I was right about and wish I had been wrong about is that, um, what is coming down the pike in the next couple of weeks are disastrous rulings, are the worst case scenario, from the Supreme Court in its political gerrymandering cases. Um, we, we know this, we got a heads up because, uh, just this week the Supreme Court issued four per curiam

[0:12:06] orders. Those, uh, are four per curiam orders, those orders were at the request of Republican officials in Ohio and Michigan that asked the Supreme Court to stay intermediate court opinions on political gerrymandering pending future action by the Supreme Court. Right, so in other words, these

[0:12:31] are Republican gerrymandered districts in Ohio and in Michigan in which courts have, lower courts have argued, hey look, this is obviously blatant partisan gerrymandering, you've got to redraw

[0:12:47] these districts. And, um, the, uh, the state officials petitioned the Supreme Court and the Supreme Court granted four orders. These are one sentence orders. I'm going to link them in the show notes that stay the judgment pending the timely filing and disposition of an appeal in this court or further

[0:13:05] order of this court, end of quote.

0:13:09 Andrew: The only reason to do that is because in the Wisconsin and Maryland

[0:13:15] gerrymandering cases, the Supreme Court is about to issue a 5-4 ruling that political, political gerrymandering is just fine, thank you very much, and you don't get relief in the courts. Um,

[0:13:28] this, this is going to be, uh, a, a landmark terrible decision and, um, you know, we've, we've been warning you about that ever since the composition of the court changed and, uh, and it's coming. And so any way to prevent the composition of the court having changed, that, that you could think? No, no, I mean, you know, that, that not, not that, not that I could think of, I mean, well, maybe, you know, not, uh, casting 70,000 protest votes in Pennsylvania, Wisconsin, and Michigan in 2016. Uh, but, um, but you know, I'm sure it's all part of the long con for the left to take over by granting the right a 30-year monopoly on the judiciary and

[0:14:12] now, by the way, entrenching, uh, the ability to politically gerrymander districts to further keep Republicans

0:14:20 Thomas: But you know what? 50 years from now in Gilead, there's going to be an awesome Bernie Sanders type

[0:14:26] perfect candidate that we can vote for, I think. Yeah, but he will, he will have, you know, once said something and, uh, well, I think it'll just be immediately executed if, I if the Handmaid's Tale is, is accurate, I think that's, that's true, that's true. So, um, look, it's bad, it's coming, the

0:14:45 Andrew: If you have seen reports that are reading the, the orders that way, um, those are correct readings

[0:14:52] of those reports. Um, that there's, there is, you could make an argument uh that, um, you know, that the court might stay those judgments

[0:15:04] anyway, uh, even if they were intending to rule, um, you know, in in some, because, because remember we talked about hoping that, uh, the way in which this partisan Supreme

[0:15:17] Court would come down would be to, um, to have a result that is politically good for Republicans, but would set judicial precedent that would be beneficial to to all of us, to to voters in the the long run. Right, and that would be finding some narrow reason to reject the Wisconsin gerrymandering, which favors Republican, but granting relief in the Maryland gerrymandering case, which favors Democrats. And by the way, you know, as we've been totally clear on this, Maryland's congressional districts are ridiculously gerrymandered, right? It, it, and that case ought to be, uh, that, you know, relief ought to be granted in

[0:15:55] that case, in my view. And there was kind of a narrow window of, maybe they're so partisan that they want, and this is a pretty strong signal that, that the court is going to say that's why the, the language "or further order of this court," uh, is is in there, uh, because this is very, very, uh, this language is is meant to signify

[0:16:20] that the court is about to rule that political gerrymandering does not give rise to a cause of action.

0:16:26 Andrew: That's, that's what I think is coming, and, uh, boy, I would love to be wrong on that. Even if it gives Republicans an additional congressional seat in 2020, right, it, it's the, the, the principle here, saying we can go to the courts to validate the, the principle of one person, one vote, that we can actually have a a a check and a balance, uh, to protect the, uh, the integrity of of the democratic process,

[0:16:57] uh, would be worth it. Uh, we're not going to get that, so, um, so there you go, great, nice depressing way to start the show, but, uh, there. Hey, to depress you further, I've got maybe another Andrew was right

0:17:10 Thomas: Or wrong, to keep in mind here, and maybe we'll talk more about it in the C-segment. But, Andrew, how's that bar impeachment going?

[0:17:19] Going well? Actually, again, I think that we're going to talk about that in the C-segment, but I think that the— We'll tease that Thomas—was Thomas right or was Andrew right on that one? I think I was right on that. Oh, well, maybe we'll get a mini Optimus Prime v. Negatron just in the C segment. A little teaser there. Okay. All right. Well, that's depressing on all fronts there, except for your drug pronunciation. That's neutral. I

[0:17:48] don't know, either way. Have you ever tried a jury trial? I have not. Civil? No. Every lawyer is tempted. Criminal? No. Bitch? No. Not only to eat forbidden fruit, but to become the snake. State or federal court, I have not. Why am I? So, let's move on to more depressing stuff. Let's see, oh yeah, though, this is horrifying, yeah, yeah, I heard, I saw some headlines about a horrifying concurrence, uh, by Thomas, in the Planned Parenthood case. Why don't you tell us? Break

[0:18:22] down for us just how horrifying this may or may not be. Uh, it is as bad as

0:18:28 Andrew: You've read and then some. So great. This, this case is Box v. Planned Parenthood, and it involved a challenge to two Indiana laws that were signed by then-Governor, now-Vice President Mike Pence. The, the first provision required that fetal remains are, quote, "nothing less than the remains of a partially gestated fetus and should be treated with the same dignity," end of quote, and therefore required that, uh, if a woman had an abortion, that funereal

[0:19:01] arrangements be made for the fetal remains. Um, that's, yeah, well, I'll, I will let that law speak for itself. Uh, the second law and these are all, these are, I, I shouldn't say they're two separate laws, they're two provisions of the same law, um, the second provision

[0:19:20] banned, uh, abortion in the state of Indiana if the abortion was undertaken based on the disability, such as Down syndrome, sex,

[0:19:33] or race of the fetus. Um, I, so those are the two laws that were challenged. The district court, uh, and again, this follows the exact same pattern that we've talked about in all of the abortion cases, the district court had no problem in joining the law from going into effect, blocking both of those provisions. The Seventh Circuit affirmed the district court's findings and said, look, this is blatantly unconstitutional. And then it went up to the Supreme Court, and what the Supreme Court did was issued a two-page opinion, very, very short, court, a paragraph on each of the provisions. The first paragraph is on the fetal remains part, which the Supreme Court affirmed, uh, by the way, this, these are, this is a per curiam opinion, that means that it is unsigned, we don't know who wrote the majority opinion, we've, we've talked about per curiam opinions on the show a lot. Um, so part one was a very, very narrow holding, and here's what the Supreme Court says: in challenging this provision, respondents, right, that is Planned Parenthood, have never argued that Indiana's law imposes an

[0:20:42] undue burden on a woman's right to obtain an abortion. The case as litigated therefore does not implicate our cases applying the undue burden test to abortion regulations. Other courts have analyzed challenges similar to disposition laws, that's what they call this, under the undue burden standard. Uh, and then it, and then, and it cites to Planned Parenthood of Indiana and Kentucky versus Indiana State Department of Health, which is a separate district court opinion. So what does that mean? It means that Planned Parenthood elected not

[0:21:14] to argue that the fetal remains law was a restriction on the right to an abortion. As Ruth Bader Ginsburg points out in her dissent, that's kind of crazy, right? Of course, right? Right. The law because the law does not

[0:21:33] require that a pregnant individual dispose of fetal remains in the case of a miscarriage. Right. It only applies to women who abort fetuses. It only applies to pregnant individuals who abort fetuses. So how you could argue it just it doesn't make logical sense to say this doesn't implicate the right to an abortion. Of course, it's a restriction on abortion in the same way that all of the post-KC efforts to restrict abortion are restrictions on abortion, right? Like requiring that pregnant individuals undergo medically unnecessary ultrasounds, requiring that pregnant individuals receive certain misleading literature from the state, right? They're all efforts to burden. And the question is, is the burden undue? It was not argued that way before, before this court. And the only reason I can think of for not arguing it that way is that Planned Parenthood's counsel made the strategic decision that they did not want this activist Supreme Court to to to take on, to tackle the question directly, directly,

[0:22:42] are fetal burial, fetal disposal, whatever you want to call these, are these bills constitutional despite the fact that they restrict abortion rights, right? They didn't want to set that precedent. That's the only reason I can think of for doing that. So stripped

[0:23:01] of that characterization, then the only question is a rational basis, right? Right. If it doesn't implicate a fundamental right, then the only question that

[0:23:14] the Supreme Court needs to deal with is what we call a deferential test. Right. Rational basis review. There must be a legitimate government interest and the law must be rationally related to that legitimate government interest. Um, the Supreme Court in a 1983 decision said the state has, quote, "a legitimate interest in proper disposal of fetal

[0:23:39] remains," end of quote. Um, so this was not a hard decision on on the merits once the case was was presented in that fashion. Um, so, uh, congratulations, women who get an abortion in Indiana will have

[0:23:57] to pay money to dispose of the fetus after an abortion. Um, that is direct, I mean literally the only purpose of for that is to uh impose additional costs on women, on pregnant individuals seeking abortions in Indiana. So yay. Uh, so that's so ridiculous. Yep.

0:24:23 Andrew: Part two, in in the uh discrimination provision, the Supreme Court again,

[0:24:29] two sentences, is our opinion expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex, race, and disability selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We therefore follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional courts of appeals. So we've talked about that before, right? Um, the Supreme Supreme Court generally grants cert only when there is a conflict among the circuits, and there's

[0:25:00] no conflict here. The only circuit to rule on this kind of law is the Seventh Circuit, which has struck it down. And so the Supreme Court says, yeah, so therefore we're going to let that stand. So that provision is not enforceable in the Indiana law. Um,

[0:25:19] and that is what led to those two paragraphs. Yeah, yeah, to a 20-page concurrence by Clarence Thomas. Um, I have, I already mentioned briefly the uh the Ginsburg dissent, which I I think is correct, the Thomas concurrence runs to 20 pages, um,

[0:25:44] I kind of wish Antonin Scalia were still alive, life, because I would love, that is the worst Andrew was wrong segment, on that. No, I, Antonin Scalia is rolling over in his grave reading this Thomas uh concurrence. It is it is 20 pages long. Other than for summary propositions of law in the first paragraph, in the last paragraph, and one reference to Buck versus Bell, which we're going to talk about, uh, it contains no legal citations. It, it, it contains a purported reading of history that comes straight out of David Barton and the Christian Dominionists. It contains multiple references to international law and international trends. In short, it is everything that Antonin Scalia spent 20 years on the Supreme Court making fun of. It just, you know, happens to be in furtherance of right-wing political causes now. So, you know, either Scalia would denounce this, or he would be engaged in mental contortions. And either way, I'd kind of like to see that. It would be, it would be interesting. And it's not like Scalia is a worse Supreme Court justice than Neil Gorsuch, so

0:26:53 Thomas: That's a good point. I'd rather, now I think about it, I'd rather still have Scalia, just because he's, it would be closer to

[0:26:59] dying. So yeah, there you go. So, uh, so what does this concurrence do? Um, this concurrence uses the

0:27:07 Andrew: Stupidest right-wing rhetoric and and as evidence that, right, this is not just my opinion, right, right, go to

[0:27:13] page 10 of the concurrence, and in that, I suppose I should back up, it is a 20-page concurrence devoted to the thesis that Margaret Sanger, founder of Planned Parenthood, was a eugenicist and racist. Okay, I'm going to talk a tiny bit about that, because that, that is a long-standing

[0:27:33] uh canard of the right. Um, and there's some truth to it, right, I mean, she, yeah, no, look, it is based in what makes these kinds of arguments durable, right? I mean, lots of the David Barton stuff, when he just invents quotes out of thin air, which, by the way, he's done on this topic, attributing to Margaret Sanger things that she hasn't said. You know, when you just invent stuff out of thin air, it's relatively easy to say, okay, well, this is just made up, there's no, show me the original document. Um, when there is a grain of truth to the to the underlying argument, argument, uh, that that's what makes these kinds of of misleading statements so pernicious. Um, so I'm gonna, I'm gonna speak a little bit to the facts, uh, but but before we even get there, the entire argument is a giant non-sequitur,

[0:28:23] right? Yeah, it, Margaret Sanger could be the worst human being alive, uh, dead. I've done some intense National Treasure

0:28:30 Thomas: Type research, and I uncovered that uh the people who started the United States uh actually

[0:28:36] owned human beings as slaves. So I've now just proven the United States. It, look, and and and again, I want to be on record here, if, say,

0:28:49 Andrew: Ruth Bader Ginsburg had filed a blistering dissent uh in DC versus

[0:28:55] Heller, in which she went through the racist origins of the National Rifle Association, I'm not saying that there are, I'm, this is a hypothetical, I mean it's a, we can guess that there

[0:29:07] probably are, but sure. Yeah, I, I, I, I think my understanding, this is, this is from a um, oh gosh, uh, not Behind the Bastards but, um, uh, I'm trying to remember, one of one of the, it could have been a Pod Save America, I don't know, but that my understanding is that there was actually a political right-wing takeover of the NRA in the 1970s, and before that it really was an organization for hunters and fishermen. I don't know and I don't care, right, like, yeah, it it absolutely has no bearing whatsoever, and if and if, if the NRA had, you know, history in the Confederacy, or right, like it

[0:29:44] could have the worst, stupidest, most awful origins, and that would not be at all relevant to the jurisprudence of a gun ban, right? And similarly, right, Clarence Thomas could be 100

[0:29:57] correct, and and and again, look, we've we've talked about Clarence Thomas as being, you know, TV ugly, right, in terms of his intellectual qualifications for being on the Supreme Court. Um, Clarence Thomas could could go hang out at a bar and be the smartest person in the bar, right, like, I mean, he's he's not an idiot on the level of, you know, the ordinary people you meet on the street idiot, right, like, he's he's probably not intellectually up to the task of being on the Supreme Court, as multiply evidenced by all of

[0:30:28] of the shows that we've done on, right? Um, but but but he's not a moron, he he recognizes that he is engaged in political advocacy here. And and again, I just want to read part 2A, starting on page 10, quote, "Like many elites of her day, Sanger accepted that the eugenics was," quote, "the most adequate and thorough avenue to the solution of racial, political, and social problems," end of quote.

[0:30:54] Um, the, I, it, there is not an irony detector strong enough for a sitting justice of the United States Supreme Court to call Margaret Sanger an elite. I

[0:31:07] did, I, are you not, like, you're one of nine people with a job, like, that's that's crazy. And that is, right, that is lifted out of right-wing talking points, right, because, you know, we're in an era of Trump, and, you know, before that, in which we sneer down our nose at uh at, you know, the elites that try and tell you that, that is High grade nonsense. Okay, it then, because sex and race selective abortions statistically speaking do not occur in this country. Uh, we

[0:31:42] then move to page 16 and 17, in which Clarence Thomas bemoans the fate of sex selective abortions in in Asia, right, and uh, the abortion rate in Iceland for children diagnosed with Down syndrome in utero approaches 100 percent. Um,

[0:32:00] why on earth the state of Indiana needs to pass a law to try and solve a problem that doesn't occur in Indiana but does occur in China, I don't know. And Clarence

[0:32:13] Thomas doesn't tell us. Um, but then, after sort of justifying the purpose for this bill, uh, by by virtue of reference to international law, which again, I just want to point out that Antonin Scalia literally made a career out of mocking Supreme Court decisions that did

[0:32:31] this, uh, particularly on capital punishment. After that, we then get to the most offensive and egregious part of of this 20-page screed, which is, "Eight decades after Sanger's Negro Project, abortion in the United States is marked by considerable racial

[0:32:51] disparity," and then goes through, and this is the gravamen of the attack, and this is the part that is 100 false. Okay, um, the idea is that Margaret Sanger was a eugenicist. Uh, not true. She she did express views that were sympathetic to eugenics at a time in which everybody expressed views that were sympathetic to eugenics.

[0:33:16] It's not something about which we should be proud, and and it is something, again, the word irony does does not apply. But the only that is cited in the middle of this concurrence is Buck versus Bell, uh, which is the infamous

[0:33:32] decision upholding mandatory sterilization, that that that, uh, concluded with a line, "Three generations of imbeciles is enough." Um, that is very clearly a low point in our nation's history, but it makes the opposite point that Clarence Thomas thinks that it

[0:33:51] makes, right, which is to say in the first 25 to 30 years of the 20th century, the, even the Supreme Court endorsed eugenics, right? So finding out that somebody in the early 1900s said a couple of sentences that are pro-eugenics is not surprising. Some of the most celebrated jurists in American history said those those sorts of things, right? That does not make it correct. I don't think we need

[0:34:23] to do an Opening Arguments on why eugenics is bad philosophically, legally, in every conceivable way, right? We know that. But that is the historical context at

[0:34:35] a time in which eugenics was part of the public But not with the racial connotation that this pernicious lie has attached to it. So, I'm going to attach in the show notes two separate articles.

[0:34:55] One is a published peer-reviewed journal article published by the Journal of the National Institutes of Health, which argues very convincingly that Margaret Sanger was not a eugenicist and was not

[0:35:14] a racist. She indeed gave voice to eugenicist voices, but here I'm going to read from a little bit of the abstract. "The basic concept of the eugenics movements in the 20s and 30s was that a better breed of humans could be created if the fit had more children and the unfit had fewer. This concept influenced a broad spectrum of thought, but there was little consensus on the definitions of fit and unfit. In theory, the movement was not racist. Its message intended to cross race barriers for the overall advancement of mankind. Most eugenicists agreed that birth control would be a detriment to the to the human race and were opposed to it. Charges that Sanger's motives for promoting birth control were eugenic

[0:35:57] are not supported in in her most important work, Pivot of Civilization. Sanger's descent from eugenics was made clear by examining extracts from her books." The author refutes the notion that

[0:36:10] Sanger was a eugenicist. Okay, by the way, Clarence Thomas selectively quotes from Pivot of Civilization, but he only quotes the parts that have been previously quoted by David Barton and the like. I would wager any

[0:36:22] amount of money that Clarence Thomas has not read Pivot of Civilization. Any amount of money. Now, next, what about the notion, what about the Negro Project? The, quote, Negro Project, was indeed a project undertaken by Margaret Sanger to provide birth control and later access to abortion to low-income, predominantly African-American communities. I should point out the reason for this was Margaret Sanger opened her first birth control clinic in Brooklyn in 1916. That was the white area of Brooklyn in 1916. It predominantly served white immigrant women. In 1930, she was then approached by prominent African-American activists, including W.B. Du Bois, the Urban League, the Amsterdam News, which was New York's leading black newspaper, and was asked by leaders in the African-American community to open a family planning clinic in Harlem. That clinic was

[0:37:32] then staffed by black doctors. But I'm guessing they all wanted to eugenics themselves, right? They're probably complicit in the plan. No, I I, yeah, um, what the second you scratch beneath the surface, uh, these these arguments are revealed to be preposterous, and and it is, I suppose it is conceivable that Clarence Thomas has read nothing but the cheerleading from the right that says Sanger is a eugenicist and a racist, and has never, and is so intellectually uncurious or requires to, you know, buttress his own opinions that he hasn't read anything to the contrary. But if you do five minutes of digging, type in, go to Google, don't don't trust me, I mean, I always say this on the show, type in Margaret, Margaret Sanger Negro Project into Google, do five minutes of reading, and any fair reading, you will walk away and go, "Oh, okay, yeah, eugenicists didn't like birth control because eugenicists are top -down, right? The government needs to direct who gets to breed

[0:38:42] and who doesn't, and if individuals have access to birth controls, then the individuals get to decide. There's no central planning. So access to birth control was the exact opposite of the eugenics, and access to abortion, right? Because that disaggregates, it decentralizes the notion of family planning. And everything that Margaret Sanger did in the 1920s and the 1930s was with the assistance at the urging of the African-American community, because prior to that, there was a sense that, "Oh, this is great, you're helping out, you know, poor white women and immigrant white women, but you're not helping the black community at all." And and so the charge

[0:39:31] that she is a racist is is absolutely false. And it is it is revolting to see a sitting Supreme Court justice. Again, he could be 100 percent right. And this would still be an unbelievably inappropriate concurrence to right. The fact that he's also dead wrong is just well, it speaks

0:39:57 Thomas: For itself. Wow. Yeah, I think I've even maybe absorbed a little bit of misinformation on Sanger. I thought, you know, I I I had put it in the category of, you know, who really did have good political or racial or whatever views in 1910 through 1930, like I just assumed it was like kind of the racism everybody had, but it's possible that, uh, that I I was even a little off, and in my view, and again, just to emphasize, none of that matters in the slightest when you're talking about this legal question, right? I mean, none

[0:40:28] of this matters yeah no absolutely right again I I don't want to in it I

0:40:34 Andrew: Want to, I want to be very very clear, because you can hear that I'm I'm angry over the judicial outreach here,

[0:40:40] judicial overreach. You can hear that I'm angry over the grotesque lies and misinformation that are contained in this concurrence. I don't want to whitewash the fact that Margaret Sanger had objectionable political views, right? Like that's true, but

[0:40:59] not surprising. And and but but the idea that her views were were racist eugenics is just, it could not be more false. Wow, so

0:41:13 Thomas: We, you've given us a lot to digest here, um, could you once again maybe just rephrase like what was the end result of of this decision, uh, in in in simplest terms, despite the fact that Thomas

[0:41:26] went off on a just a idiotic tangent for 20 pages. Right, well, three three things, number one, uh, it upheld the Indiana fetal remains law, so so they have to have like a Viking funeral, they gotta do the the boat, they have to pay to have fetuses that are aborted cremated or buried in Indiana,

0:41:52 Andrew: And again, this is one of these I'll throw out here, uh, and I feel pretty confident, Lena, we try and steal me on the other side, uh, if if you can come up with a justification for why a state would want you to have to pay to cremate or bury an aborted fetus, uh, but not a miscarried fetus, you know, send it Open Arguments at gmail.com, or hit us up on social media, I I can't, I can't remotely come up with with a with a with a reason. Plus, it

0:42:23 Thomas: Changes, what, that that riddle that was one of my first favorites as a kid, if a plane crashes in Indiana, where do you bury

[0:42:29] the fetuses, that was totally different answer. Now, right, number two,

0:42:35 Andrew: It leaves stand the Seventh Circuit's opinion regarding striking down the second provision of the law that prohibits abortion on the basis of of sex, race, or disability.

[0:42:48] Um, look, the reason for that is states should not be inquiring Because that that prohibits at, you know, any stage of gestation. And, you know, quite frankly, uh, states ought not to be inquiring into uh the motives of of pregnant individuals who who make a decision regarding their body, particularly at that stage of the pregnancy.

[0:43:13] Um, and uh and and and the problem that it is meant to to address is a problem that does not occur, and I'm using that in quotes, right? To the extent that you think it is a problem, it's a problem that Clarence Thomas admits does not occur in the United States. It occurs in Iceland and China. Um, that's part two, uh, point

[0:43:32] three from this is Clarence Thomas has openly gone, you know, full, uh, he's not pretending, he's not hiding anymore. The end of his you know, maybe he wasn't hiding very well from the beginning. The end of his concurrence ends with these words, and we'll end the the segment with them because they are chilling: "Having created the constitutional right to an abortion, this court is duty-bound to address. In that regard, it is easy to understand why the district court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent"

[0:44:09] on abortion. Um, that that is Clarence Thomas saying, hey, look, uh, as soon as we get a chance, we have at least my vote and probably the votes of four other folks along with me to, uh, to declare that that Roe v. Wade, quote, "created the constitutional right to an abortion." Uh, it did no such thing, as, you know, we have been through a great length on this show, uh, but

[0:44:34] that's what's coming. And, you know, we've done a lot on abortion, and this is, um, this is, this is well.

0:44:40 Thomas: That was uh, yeah, I think that was properly uh sold as uh depressing. I think a good way to way to signal that that was every bit as uh bad as I thought it might be. Okay, that's awful. Opening Arguments is brought to you by Hymns, a wellness brand for men. You've heard us talking about Hymns and how they are helping guys look their best. If you haven't yet, it is time to see what they're all all about.

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[0:46:54] now.

[0:46:56] Because people have got to know. Whether or not their president is a crook. So you're not aware of any context during the course of the election? How many times do I have to answer this question? Can you just... Russia is a ruse. I know you have to get up and ask a question. So important, Russia is a ruse. Well, I'm not a crook.

0:47:14 Thomas: Well, let's move on to mixed news. I don't know if this is... Well, I'm curious what you think on, uh, the on Muller's statement. We finally got to hear him talk. He hadn't said anything for the the whole investigation.

[0:47:29] Wow. What say you, Andrew?

0:47:34 Andrew: I would say this is mixed with some cause for optimism. So I want to go

[0:47:40] through and kind of highlight the key lines that are in Mueller's statement, but I want to start with the end of the statement because this is really the important part

[0:47:52] and and puts us in a decision-making space, uh, that I don't know that I have the right answer at this point, so it's a, it's a conversation that that I want us to have, um,

[0:48:05] at the end of Muller's statement, in which, which he does not make himself available for questioning. Mueller says, "There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decision we made. We chose those words carefully, and the work speaks for itself. The report is my testimony." I would not provide information beyond that which is already public in any appearance before Congress. In addition, access to our underlying work product is being decided in a process that does not involve our office, we've, we've talked about that, uh, "so beyond what I've said here today and what is contained in our written work, I do not believe it is appropriate for me," meaning Robert Muller, "to speak further about the investigation or to comments on the action of the justice department or congress."

[0:48:59] Um, that's not good. Uh, yeah, that is Robert Mueller saying, uh, "I will not voluntarily testify before Congress. I've got, you've got my testimony, it's in the form of

[0:49:11] the report." You and I have talked about that, that ideally what I would like to see is somebody on the House Judiciary Committee posed to Robert Mueller the question, uh, sir, if the target of your

[0:49:30] investigation were not the president of the United States, would you have recommended an indictment? That's

0:49:36 Thomas: Exactly the question that I was thinking that that we would want, and it seems like he would decline to answer it.

[0:49:42] Seems he's, he's, that's, that's exactly right. And now, and now the the question is, if the Democrats

0:49:49 Andrew: Subpoena Mueller, right, I did look, if they subpoena Mueller, he will testify, right? This is, I

[0:49:55] I I believe that he's saying on this look like I'm not going to, you know, uh, uh, defy a subpoena, I'm not going to be a recalcitrant witness, I will testify, but this is his way of saying I'm not going to give you the answer

[0:50:07] that you're looking for. Yeah, but I think I think what maybe he doesn't realize is that there's so much

0:50:14 Thomas: Power in him just saying things that are in the report. I think it's funny because he's up there. He's like, all right, you know, I don't want to testify because you guys don't need me to get up here and just read you what the report says. I mean, oh, wait, you do need me.

[0:50:29] It is beyond obvious that, in fact, we do. And maybe Brian can do a clown horn in here so people know what clown horn is, because somebody pointed out that nobody will know what it is. Nobody has read the report, nobody, so yes, we actually do need him to get up there and just, even if he just wants to read it, that's fine, because apparently the American public, and maybe a lot of Congress, a, didn't read it, uh, or b, it just doesn't have the same power to read something like that versus hearing Bob Mueller say, "If we, if the evidence, uh, you know, was that he didn't commit a crime, we would have said so." Like, that's the powerful quote that everybody is, you know, it's all over, all over the news and everything, and it's like we already knew that, we already knew it, but but I think you do need somebody to say it, so I still think we should have him testify, uh, even if he just says stuff that's written down,

[0:51:26] because it's just more powerful. And and and the risk is that he will

0:51:32 Andrew: Testify in a way that is unhelpful or can easily be spun by Bill Barr and the presidential sycophants into undermining

[0:51:45] what's in the Mueller report, right? So it, it, I, I Could have made the argument that you just made. All I'm pointing out is that there is now a downside risk. Yeah. And that is if Mueller believes, look, I made this clear, I don't want to testify and you made me come here anyway, uh, all right, but like I'm not going to give you what you want, um, that that could make things worse. So that it is not, it is not without a downside. Like I said, I haven't come to a landing on it.

I, I think that I am still, uh, probably pro subpoenaing him for the reasons that you've just said, uh, but, but we have to be prepared for Muller to testify, you know, as, as effectively, you know, as as a hostile witness in the colloquial sense, right? Like we, we joke about, about this in Law'd Awful Movies all the time, treating a witness as hostile doesn't mean that they are hostile to your position, it just means that you can ask leading questions on direct, um, but, but I mean that in in the joke sense here, right? That that, uh, if he is perceived as the Democrats' witness but he's not giving you the answers that you want and he's not giving you the sound bite that you want, um, could that backfire? Could that create more cover for the the totally misleading narrative that the Mueller report is an exoneration? I, I don't

[0:53:05] know, but that's now, that now has to be part of the discussion. It's got to be part of the discussion though. I, I think that I

0:53:12 Thomas: Think there's plenty of value in getting him to say some of these things. I think you can ask him, if you weren't the president, would you have said, you know, etc, like you just said, and I believe that he will likely say I'm not going to answer that because, and it sounds, it's a weird thing, it's like his view has been that to even, um, accused to even have said, while we can't indict the president because the guidance is you can't indict a sitting president, if he weren't president we wouldn't, die his view, Muller's view seems to be like even that's unfair because then the president doesn't have a chance to like rebut that or something, which, what do you make of that? Because that's, yeah, the president has the bully pulpit, he has the ultimate, you

[0:53:57] know, he can always rebut everything. That That's true. Let's, let's dig into that a little bit. So, um, why don't, go ahead. I think they're only like five or six sentences that are really crucial

0:54:09 Andrew: In in Muller's testimony, um, so let's go through them chronologically and then that's, that's in the middle. So, um, that the first statement that I think is really, really significant

[0:54:21] um, and I'm going to include the transcript of of what he said in the show notes, uh, is in paragraph three, Mueller says the Attorney General has made the report on our investigation largely public. Um, and there's... there's a subsequent reference later in the statements in which Mueller says, uh, essentially I think the redactions here are fair, um, yeah, for example, he says the Attorney General, uh, preferred to make the entire report public all at once. We appreciate that the Attorney General made the report largely public. I do not question the Attorney General's good faith

[0:55:00] in that decision, um, so, uh, that tells us, and again, um, you know, negative in the sense that, you know, when the unredacted report is made public, um, you know, maybe there aren't quite as many bombshells as you and I thought, uh, might be, might be buried within that, um, it certainly tells us what Mueller thinks of it right? Don't, don't give

[0:55:25] me the, you and I, I was pessimistic on this. I feel like, oh, okay, well, that I thought definitely when we argued like, oh, there could be a bombshell. Yeah, well, yeah, in Appendix C, where they, the the paragraph that's blocked out, in between the president gave us evasive answers, blocked out paragraph, in order to avoid a protracted court battle we decided not to subpoena the president, um, I, it, I can't wait to read that paragraph. Right? So, I, I don't think that that the number of bombshells are zero, uh, but I think that if, if you were thinking that the unredacted report was maybe redacted in a way that was, you know, nothing could be as misleading as Barr's letter, but if you thought that it was potentially misleading because of the redactions, here is

[0:56:15] Robert Mueller saying, kind of tipping his hand, going, yeah, don't, don't, don't think that it's not, it is not in the main misleadingly redacted. Again, I don't think that means that there aren't misleading redactions and that there aren't over redactions in it, uh, but that is not, there's no smoking gun hidden in the redactions that, um, yeah, that are going to come out. Next up is the the issue that you were talking about, and and here is, uh, the way in which Mueller describes it. He says, as a result of the indictments, uh, to the Russian efforts to interfere with our election, we investigated efforts to obstruct the investigation.

The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, and let's be clear here, this means the president of the United States, it strikes at the core of the government's effort to find the truth and hold wrongdoers accountable. Um, that is not being quoted at the same level as the, if we had confidence that the president clearly did not commit a crime, we would have

[0:57:31] said so. Um, but that is in my view almost as as damning. Right? This is saying, hey, the reason we wrote that entire Volume Two, and Volume Volume two only concerns the 10 separate activities undertaken by the President of the United States, is because this is very, very serious in an investigation of paramount importance. It obstructed that investigation. It prevented us from

[0:58:02] getting at the truth. That's really, really bad. Yeah. Well, that's another question I would like to ask him is, how can you maybe try to get at the distinction between

0:58:16 Thomas: Not enough evidence to support a criminal conspiracy and how much of that could have been due to obstruction? You know, like maybe get him to say out loud or comment on, but for the obstruction, might there have been more evidence of a criminal conspiracy? I don't

[0:58:34] know what he would say, um, and I don't know, do you think that could backfire or something? No, no, I, I, I think

0:58:40 Andrew: That's exactly the, that that's exactly the predicate of the question that that this

[0:58:47] sentence is, is to which this sentence is meant to respond. Right? When it says that, when a subject of an investigation obstructs that investigation, it strikes at the core of the government's effort to find the truth, right? So I think it would be fair to say, to ask him, Mr. Mueller, you've said, and then read back that part of the record, are you saying that your investigation was unable to completely ascertain the truth in this matter? Right, right. And his answer to that will be then to quote from the report, right?

[0:59:23] Will be yes, right? He says so very, very clearly. And it's, I think this is totally right.

0:59:30 Thomas: Now I'm even pushed further to that we need him to testify because what Mueller has done through the report and through this prepared statement is he's found a way, I don't, I don't, I'm not 100% sure why, some combination of, you know, dedication to norms or something plus also residual Republican loyalty, I don't know, but he's found a way to say pretty, pretty bombshell things in the most boring way possible. Like if you designed, if you were sitting there trying to design a lecture, like you're a professor or something, and you're like, how can I get people the least interested in what I'm saying and to make my words have the least impact? Here we, we go. But, but still be factually like accurate, you know, like still, and the benefit of getting him to testify might be, you know, Kamala Harris or somebody being able to like put things in better terms, like more, I don't know, headline grabbing terms, more

[1:00:25] terms that, that are just attention grabbing that make you feel the, the weight of what actually happened and getting him to say yes or no. You know, I think he might do that. And I think that would be important.

[1:00:39] I, I, as as we're having this discussion, I think that's a really, really good point. And I think if

1:00:45 Andrew: It were characterized as, yeah, you've said you're going to testify from your report, we expect you to do that, but what we want to do is distill a 400 plus page report for members of Congress that haven't and won't read it, and for the American public that haven't and won't read it. And, you know, you've been a lawyer long enough to know a lawyer could knock out 400 pages, we do that that sort of stuff all the time, but the average person isn't going to do that unless there's, you know, unless it's the Star Report, and you know there's salacious

[1:01:16] sexual details on the next page. Um, and and that may be a, that may be a a an approach that satisfies Mueller's caveat there, right?

1:01:28 Andrew: It, I don't know, right? It, at this point, that is just rank speculation as to, is you know, is he done, is he, you know, all I can go by is what he said publicly. But but but I, but I agree with that, that if you can say, hey look, yeah, we get it, testify from the report, but we want to frame the discussion of the report because there's so much out there, I, I think that, I think that would be a good, uh, a good policy. Now, the remaining parts of interest are from the middle section of Muller's testimony describing the 2000 OLC memorandum, we've talked about that, uh, at some length on this show. Let's talk about what Muller has said and what the OLC memorandum actually says. So Mueller says, it explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office, that is unconstitutional, even if the

[1:02:24] charge is kept under seal and hidden from public view, that too is prohibited. Yeah, that caught my, my attention, that's interesting. Yeah, that in my view overstates the 2000 OLC memo. Um, and again, let's talk about what the 2000 OLC met, right? So the

[1:02:42] 2000 OLC memo is, uh, Bill Clinton's Office of Legal Counsel, at a time in which Bill Clinton was impeached and could plausibly have been charged with crimes, uh, updating a 1973 Solicitor General Robert Bork memo, uh, arguing that, of course, Nixon, uh, could not be charged with any crimes, uh, while, while

[1:03:08] in office. Um, it is analyzing Article One, Section Three, Clause Seven of the Constitution, and I, and I want to just sort of bracket this for a minute, that clause, that's the impeachment clause for the president, right? And it, it says, "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." And so in analyzing that particular constitutional provision, I want to point out, because I've

[1:03:48] gotten a number of questions from email of, uh, if, uh, if Trump is impeached but not convicted, are there double jeopardy implications to that? And that clause says no, no, there are not, right? It says you can, uh, you you try for impeachment for high crimes and misdemeanors, uh, you can remove them from office, and then try him again for, right, subject to indictment, trial, judgment, and punishment according to law, right? Because, as

[1:04:19] we've pointed out, high crimes and misdemeanors, not the same as federal crimes. So I I thought that that kind of bracket was important. The 2000 OLC memo basically says, okay, the last word on this subject was from 1973, 1973, Robert Bork says you can't indict the president, meaning Richard Nixon, but since then, we've had a bunch of Supreme Court decisions. A bunch of them were about Richard Nixon, but probably the most relevant and crucial one that we've talked about on the show a bunch of times was Clinton versus Jones, right,

[1:04:52] in which the Supreme Court said, hey, look, the president does indeed have to respond to civil lawsuits while in office, right? Because, remember, Bill Clinton took the position that executive

[1:05:05] immunity meant he could not be required to respond to Paula Jones' civil lawsuit alleging sexual harassment while he was the president. And, again, his position was, look,

[1:05:18] like, toll it and sue me when I'm out of office, but I'm the president, you can't require me to respond to a civil lawsuit while I'm being the president. And the Supreme Court said, yeah, we can actually. The interests of justice and the fact that this would only somewhat obstruct you from doing your job actually require that you respond to those civil lawsuits. And so then the question was, does the fact that that decision from 1998, does that bear in any way on the earlier 1973 decision with respect to indicting a sitting president, president? Um, and the OLC

[1:06:02] said, and and again, I think they're right on this first part, no, uh, it does not change the idea of sending in U.S. Marshals and dragging the president out in handcuffs, right? Because he's the president, right? And separation of powers means that

[1:06:21] we can't have the judiciary, uh, authorize the removal of, uh, the head of the executive branch. Um, the counter argument, and again, really really good

[1:06:33] counter argument we've talked about this on the show before, is Aaron Burr was vice president and he was tried for murder, right? And and you know, if you want to say, okay, the vice president's not the president, and certainly, you know, in the 18th century, the vice president, you

[1:06:47] can make those arguments, but but you do have to grapple with, we tried a vice president. So, you know, that that the separation of powers argument doesn't seem to be, you know, if there is an argument only for protecting the president, it certainly is not one that can be found in the text or the original intent of the Constitution. You have to go by, you know, some kind of crazy liberal evolving constitutional standards to come up with that. But I do have crazy liberal evolving constitutional standards. Um, so so I think I agree that

[1:07:24] a sitting president cannot be indicted, right? But then there's the second half of the question, right, which is, what about a, and and I mean indicted and and hauled off in handcuffs, right? What about a sealed, sealed indictment that is stayed while the president is in office, and you do that so that the statute of limitations does not run on the crimes that the president has alleged to have committed, but at the same time, right, you leave it up to the political process of impeachment, to say, okay, well, you know, we, we a grand jury thinks that the president has committed a crime, uh, we're going to seal that indictment, it will not be made public, uh, and uh, you, you want this, uh, alleged criminal to

[1:08:07] serve out their term, okay, like, we're not going to stop you, that's what the Constitution allows, uh, but uh, but you might want to know that, right? Um, and and and critically, I mean, the reason that I think that that is the best course of action is actually from the arguments, the separation of powers arguments, in the 2000 OLC memo, right, this is page 257, it says, uh, immunity from indictment and criminal prosecution for a sitting president would, quote, "generally result in the delay but not the forbearance of any criminal trial," end of quote. Um, that's true for Aaron Burr,

[1:08:44] right, who was charged with murder, because murder does not have a statute of limitations, it's not true for Donald Trump, it is, it is not true for any crime that carries with it a statute of limitations. The The only way to preserve that is to allow for the indictment while he's president, and then unseal that indictment, toll it until he's no longer in office, whether removed by impeachment or otherwise, and then allow the justice system to proceed once he's out of office. On that section, this lengthy 35 page OLC memorandum gives us only two paragraphs, and basically it says, we've separately considered whether this constitutional immunity extended only to criminal prosecution and confinement, but not indictment, the president's ability to perform his constitutional functions would be unduly burdened by the mere pendency of an indictment against which he would need to defend himself after leaving office,

[1:09:49] we continue to believe that the better view of the Constitution accords a sitting president immunity from indictment by itself, to some agree, indictment alone will spur the president to devote energy and attention to mounting his legal defense, the stigma and opprobrium attached to indictment exceed those faced by the civil litigant defending a claim, given the modern realities of politics in the mass media and the delicacy of the political relationships which surround

[1:10:14] the presidency, both, both foreign and domestic, there would be a, this is unfortunate, Russian roulette aspect for the course of indicting the president, postponing trial, hoping in the meantime that the power to

[1:10:27] govern could survive.

1:10:28 Andrew: You will note there are no case citations in there. There's no historical citations. There's no horn book. There's nothing.

[1:10:35] That's just a paragraph at the end in which a Clinton OLC official said, And by the way, probably also not this too. It is not well-reasoned, it contains no citations, and it contradicts the earlier statements that the reason to shield the president from criminal immunity is to postpone rather than eliminate potential future criminal liability. Now, Robert Mueller is bound by the OLC opinion, right, because that is binding on the Justice

[1:11:06] Department.

1:11:07 Andrew: Congress is not, the judiciary is not. And so that characterization is a characterization of how Mueller interpreted those OLC guidelines,

[1:11:21] But it is not an accurate statement of the law. All right. Yeah, I think that

1:11:27 Thomas: Explains it well. All right. Well, that states it well, Andrew. Yeah, I had been very curious about

[1:11:34] That quote because I had thought that we had talked previously on the show that you could seal an indictment and let it sit around.

1:11:40 Thomas: But yeah, no, I really think, again, Mueller is not Ken Starr. And that's good in most ways, but also it's, I've said it a number of times, but you can't, it's not apples to apples to compare, you know, these special counsels and to even unconsciously in your mind be like, well, the Clinton, I remember the Clinton report being so much worse than this one, and therefore Trump must not be as guilty, or that kind of thing. I just don't think that's it. I think Mueller is really, really trying to, I don't know, be fair, I guess, or or maybe, you know, he is a Republican. Maybe he's just giving too much benefit of the doubt or or too much doing Doing too much to favor Trump in maybe unconscious ways. I don't know. Either way, we're out of time. So we've got to say,

1:12:31 Andrew: Let me say eight seconds on that. Usually, I'm on the side of, you know, preserving

[1:12:37] institutional independence and urging caution. Right now, we're in a position where Donald Trump Has politicized the Attorney General's office, and he has a personal advocate spinning this as his attorney general. And yeah, I sure do wish that instead of it being Robert Mueller, it was the Democratic equivalent of Ken Starr, that that it was an advocate out to get Trump to to counter the fact that Trump has a sycophantic defender lying about the

[1:13:09] The contents of the Mueller report in office. So I agree. All right, well, it is time to thank

1:13:15 Thomas: Our top patrons over at patreon.com/law. Andrew, why don't you start us off and thank you

[1:13:21] To SovCitProTip Hand the judge a 'reverse' card to send the prosecution to jail, nice, uh, Uno reference there, to Dragonfly.eco, books about nature and the environment, reviews and interviews, oh, check that out, stuff and polls, Betsy DeVos is the

1:13:40 Andrew: Antichrist, John Richards, Darth Mandy Pants, well-deserved, patron number 239,

[1:13:46] Uh, Beast War Sucks, Beasties Forever, um, that, that is totally misguided, the the Beast Wars, when it was distributed in Canada, had to be, uh, distributed under the name Beasties because the Canadian broadcast would not let them put wars in the name, it's the same show, people, come on,

[1:14:04] What did they, they do for Star Wars? Star-ease, star-ease, I guess, I know, well, because it was a kid show,

[1:14:12] I'm Brewing Adam Costa, 13th Century Saxony Gravel Truck Lawyer, Bookum Dano, J Alden Walt, Jennifer Cratch, Barbara Lawall is Queen of Us All, Queen of Us All, Queen of Us All, all right, the cure for ultra virus, we are going to build a death star and make Alderaan pay for it, GCU Moss

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1:16:39 Thomas: For a second, all right, if I had a dollar every time I changed my name, I'd have a dollar, Cool James, Andrew's Epitaph

[1:16:45] Will Move My Noodle, A Very Stable Genius with many accomplished accomplishments, okay, all. All branches are co-equal, but some are more co-equal

[1:16:58] than others. Oh, that's brilliant. Devin Nunes as the arch nemesis of the taint team is canon now, right? Anonymous Buttercups Legal Services thinks Patreon should allow per subscription names and longer. I don't know. Incoming transmission from Junior Missions Operation Manager Nirmat Bundaloy. How many licks to the center of a Tootsie Pop? One, two, redacted. An anagram of benak tarski is

[1:17:27] Benak Tarski, Benak Tarski, that's, that is such a great math joke, I love that, canon starring William Conrad, michaelswordorigins.org, your source for legal terms from 13th century Saxony, Effing Robots at the Portland Main Fringe Festival, we need to talk about Bill Barr's Sharpie huffing addiction, Derrick Rodney Pete Moss, Heart to Heartbeat Around the Bush Quail Hunting Lodge, I either had an aneurysm just now or I read that perfectly, or both, is calling it soccer on ice meant to insult soccer or hockey, um, yeah, no, that's an insult

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[1:19:41] typo, thanks Newto, oh, President Trump, oh yeah, that was uh, Newt Gingrich, these people and their Twitter typos, it's, I mean, especially, uh, especially the, the Giuliani, it's just

[1:19:53] a wow, did you see that one, the other, was it last week, where it's just like, I've, you know, his, his Twitter, Giuliani's Twitter is pretty much a medical alert bracelet, like it really, it's just like, all right, call the hospital again, I don't

[1:20:06] know what's happening. An anagram of Lindsey Graham is Angrily Shamed, and finally champion for the ages no one has yet unseated him but keep trying, Conrad Michaels, the great Conrad Michaels

[1:20:19] all right, thank you top patrons, you're the best, and now it's time for TTTBE, it sure is, and Thomas, uh, we have a criminal law question, so thank, you're doing pretty god, all right, finally, oh no, associate, this firm has ever failed the bar exam, no kidding, all right, a woman drove her car through the drive-thru lane of a fast food restaurant one afternoon, come on, this is, if you don't get this right, yeah, all right, yeah, when she reached the microphone used to place orders, she said, there's a man across the street with a rifle, he can see everything you do, if you do not

[1:20:59] Do exactly what I tell you, he will shoot you. Now give me a hundred Crunch Wrap Supremes, put all the money from the register into a sack and give it to me when I drive up. I, I, I love this crime. I just want to say, I, I love this crime. I love this crime. Quote, quote, the Andrew, I love this crime. Use that. The clerk did not see anyone

1:21:21 Andrew: Across the street and was unsure whether anyone was there. However, unwilling to risk, risk harm to himself, he

[1:21:27] put five hundred dollars in a paper bag and handed it to the woman when she drove up to the delivery window. What I really want to know is, were there like three cars in front of her? Like, you know, she's waiting. They were still having to do the food for a while. Like, all right, the double cheeseburger in this one, that right now. All right, the woman then drove off with the money, but was arrested a short time later because she's an idiot. She had lied about there having been a man with a rifle and had acted alone. Oh, so this is, it's also kind of a Pulp Fiction-y question, right? Right. Like, you know, what if no one, no one ever robs restaurants? And you remember the the bit where he was, you know, he robbed it with a microphone, anyway, with a walkie talkie. Anyway, so she lied. No man with a rifle and had acted alone.

[1:22:13] Of what crimes can the woman be convicted? First off, I feel like they robbed that restaurant in Pulp Fiction with guns. They had guns. Yeah, yeah, yeah. But they first talking at the beginning of Pulp Fiction. Right, right. Uh, uh, Honey Bunny is talking about, yeah, anyway, so this woman, of what crime or crimes can she be convicted? A, embezzlement. B, obtaining property by false pretenses. C, robbery and larceny. Or D, robbery or larceny. Uh, this is, wow, this feels

[1:22:53] hard. Card, um, oh, embezzlement, no.

1:22:57 Thomas: Okay, that's an easy elimination, obtaining property by false pretenses. I

[1:23:03] feel like, I mean, that, that probably is not it. Like, I feel like that would be like, you drive, you go someplace, you're like, oh my, I'm just picking up this, uh, thing for my friend, you know, like obtaining property. I feel like you don't hear about that as a charge, in it's just robbery, because, so, C and D seem like to me the the tough one, the ones, you want robbery and larceny or D robbery or larceny. Oh man, so it seems like if I'm analyzing this right, this hinges on the precise technical differences between robbery and larceny, and I have no idea what those differences are.

[1:23:45] I don't really know entirely what larceny is.

1:23:51 Thomas: I feel like you hear about robbery and larceny. It's not like assault and battery where they're always together, is it? Or is it like either robbery or larceny?

[1:24:04] Larceny. All right, this seems really hard to me. I am going to go go with C, Robbery and larceny. I feel like it's not going to be D where it's either robbery or larceny, because I just don't feel like that's going to be the fact pattern. I feel like if the fact pattern was one of robbery or larceny, then it doesn't, I don't know, that just doesn't make sense to me. Whatever, I could be wrong, but I'm going to go ahead and say, they can go together, rather, and therefore it's C. It's between C and D, I think B is not quite right, even though it sounds the most right. If B is just the obvious right answer, I'm gonna be, I'm gonna be a little miffed, but, uh, but

[1:24:48] I'm going with C. All right, and if you'd like to play along with Thomas, you know how to do that, just share out this episode on social media, include the

1:24:55 Andrew: Hashtag TTTBE, include your answer, your reasons therefore, and we will pick a winner and shower

[1:25:01] that person with never-ending fame and fortune. Fame and fortune, not guaranteed. All right. Thanks so much for listening and

1:25:07 Thomas: Tune in on Tuesday for an amazing deep dive. Can't wait.

[1:25:13] See you then. You betrayed the law! Law!

[1:25:20] 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,

[1:25:53] Until next time.

[1:26:09] This podcast is a production of Opening Arguments Media LLC. All rights reserved.

[1:26:18] 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 key and

1:26:30 Andrew: A big thank you to our Facebook group moderators Alicia Cook, Natalie Newell, Emily Waters, Eric Brewer, and Brian. Check out the Opening Arguments Facebook community, and finally, thanks to Thomas Smith for creating the show's theme song, which is used with permission.

[1:26:43] Gee, Zachary True Williger, what a clown horn of a week. I love this crowd.