OA287: Down the Hatch (Act)?

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 Thomas: Hello and welcome to Opening Arguments. This is episode 287. I'm your host, Thomas Smith. That over there is P. Andrew Torrez,

[0:01:24] newborn calf.

[0:01:28] How's it going?

0:01:30 Thomas: Or should I say moo, moo, moo, moo, moo.

[0:01:33] Moo. Yeah, no, it's going fantastically well. And as you alluded

0:01:40 Andrew: To, we just got notification yesterday that Del O'Nurth named a

[0:01:46] newborn calf after me, P. Andrew Torrez. She's a longstanding Opening Arguments listener. And that was totally not... In a million years, did I think someone would someday name a cow. You had no idea you've reached this level of fame. Yeah, yes, right. You, you know, other people may have the kind of fame that gets them noticed on the streets, or, you know, makes the money, or, yeah, gets them on TV. Gets them on TV or the radio. But do they have a cow? No, they... Well, maybe they also do, but for now we'll say no, for

[0:02:27] now we will say no. That is the uh unique provenance of opening arguments official podcast with a cow named after

[0:02:35] one of the co-hosts. As for me, uh, nothing new, other than beating the entire puzzle in the Thunderstorm

0:02:41 Thomas: Crew at, uh, at the bar exam. You know, that's the only, only thing new since you asked, uh,

[0:02:48] that's, I, I was about to ask. That's all. Just, uh, just beat an entire crew of smart, very smart people at the bar example. That's fine. Uh, yeah, go check that out. That was a pretty good accomplishment. Yeah, we have, uh, yeah, go ahead, I was gonna say, go check that out on the bonus feed on the Patreon feed. It is an hour of fun, uh, each, uh, each person with more, um, funny jokes and insight than the last and, uh, you can see that, I guess, I spoiled the results a little bit, but

[0:03:19] it's been like a week, so you can, you know, go, go listen. Anyway, it's fun. All right. Yep, um, oh, one more thing, just, just as a shout out to Dell, uh, Dell's podcast is Evidence-Based Eating, so there we go. So there we go, I guess, if you name, uh, some livestock after Andrew, you get a podcast shout

[0:03:40] out. We will. We We will shill your podcast. It's in the bylaws. Okay, yeah, definitely. You name a cow after us.

0:03:48 Thomas: All right, so today, lots to talk about. We include everything from old news to breaking news, and everything in between, I think. You remember Scott Walker, everybody's least favorite Wisconsin

[0:04:02] governor who bragged about and human yeah yeah the guy who uh thought it'd be a great idea in the presidential, like, debates to brag about how many times people tried to get rid of him. That was my favorite. I was recalled seven times, and I survived. I'm still here. But he, so after he left, you'll remember that there were all kinds of efforts by Republicans to limit the incoming administration's power, and so we're going to get an update on that. We're also going to talk about the census question. That's a very important debate, so it's kind of ongoing, going.

And as we've discussed, it has a very immediate and important deadline because past a certain date, you know, it's kind of either way. So more to catch up on there. And finally, some Yodel Mountain. We are going to talk about the, well, Kellyanne Conway. I just saw, this is very breaking news for us. But within, you know, the last hour or whatever, whatever. Kellyanne Conway. It's always probably a good sign when a federal watchdog group recommends you be fired. So we're going to look into what that means. And more on Flynn. So that's our agenda. I'm excited.

[0:05:14] Let's go. What do you think, Andrew? Yeah, let's get to it.

0:05:18 Thomas: Yeah, you've got a pasture to walk around in or something. I don't know. That's the cool thing about baby cows and other animals that aren't humans. They're born and they're like, yeah, I'm just walking around. Hey guys, what's up? I'm here. I'm five seconds old. I'm just going to take a stroll. I'm going to walk around. Babies, I got a two month old, still impossible. Nothing. Can't do anything. Can't do a single thing for himself.

[0:05:41] Anyway.

0:05:42 Andrew: You heard it here first. Cow is better than Arlo. Yeah, exactly. Fortunately, you know,

[0:05:48] your wife doesn't listen to this podcast. All right, let's go to our first segment.

0:06:11 Thomas: So yeah, what's what's new in Wisconsin? How did that go? Yeah.

0:06:17 Andrew: It uh it didn't go great thomas um We we talked about in Episode 232,

[0:06:23] the just transparently naked power grab by the lame duck session of the Wisconsin legislature and outgoing Republican Governor Scott Walker to strip the incoming Democratic and democratically

[0:06:42] elected Governor Tony Evers and Attorney General Josh Call of important.

0:06:50 Andrew: Powers that ordinarily vest in the governor and the attorney general. And in particular,

[0:06:56] Look, what makes what they did so pernicious is that Scott Walker absolutely decimated the infrastructure in the state of Wisconsin. And

[0:07:09] he, he made it, what the outgoing lame duck session did is make it impossible, or make it more, I shouldn't say impossible, but make it more difficult

[0:07:22] for the incoming Democrats to fix the problem. Right. And and and look, this is the part of the reason to draw attention to this right now is this is the blueprint for what Trump will do in 2020 when he loses to Liz Warren. Right. He's already managed to destroy, you know, much of our civil service infrastructure just through neglect. But when they try and burn everything down on the way out. Right. That then we just need to keep our eyes focused on that because we're going to be six

[0:07:53] months into, you know, the Elizabeth Warren administration and. And our listeners, people on the left are going to be saying, well, I don't, you know, look, we voted for Liz Warren, how come everything isn't all better now, right? It, it's harder to build than, and harder to fix than it is to destroy. And, you know, this is part of the playbook of the party. And again, you know,

[0:08:18] partisanship, you know, lefties, but when you have a political party that has as part of its ideology, the idea that government doesn't work, that gives you a one sided advantage in burning everything to the ground on the way out. Right. Um You know, roughly speaking, Democrats are the party of, you know, sometimes we do need a government, and many Republicans are the party of Ronald Reagan. Let's, you know, shrink government down to the size of

[0:08:49] a bathtub, and then drown it in the bathtub. Yeah, it's way, for, you know, listen, nerds, it's way easier

0:08:55 Thomas: For the Joker to do a bunch of scheming that blows stuff up than it is for Batman, even though he's a lot of

[0:09:01] resources, billionaire that Batman, it's harder for him to put it back together. That's why there's so much conflict. Excellent. Excellent. Just to self-illuminate. Yeah. So this was Senate Bill 887, and it did a bunch of

0:09:17 Andrew: Things. It was then enacted as Act 369, and it did a bunch of things that

[0:09:23] were technical, right? So Section 26, for for example, provides that in order for the attorney general to compromise or discontinue a civil action brought on behalf

[0:09:36] of the state, the attorney general must obtain consent from the legislature. And the reason for this is really twofold. Number one, while Scott Walker was governor of Wisconsin, Wisconsin intervened in a bunch of conservative lawsuits, right? They, they intervened to block the Medicaid expansion into Wisconsin. They intervened in a number of other matters. And those matters that are ongoing are matters from which presumably the incoming Democratic administration

[0:10:14] would withdraw. Withdrawal and by enacting this section that the democratic attorney general, at the behest of the Democratic governor, has to go to the Republican legislature, which, by the way, is one of the most gerrymandered Republican legislatures in the country. Right, we've, we've talked about how bad that is, but but Wisconsin, deep blue state, is 99, 35 Republican in their general assembly, right, which, which is their state House of Representatives, and 18, 15 in the state Senate. So Republicans, even after the Democratic wave in in 2018, are hold a super majority in the Wisconsin state legislature. And all of these provisions are provisions that are designed to restrict the power of the incoming governor and hold hold that. And attorney general and hold it hostage to

[0:11:13] approval by the legislature. It's utterly without precedent. And the only thing that makes this possible is very, very effective gerrymandering, very effective gerrymandering, which, by the way, our Supreme Court in a couple of weeks is about to uphold.

0:11:28 Andrew: But so go back, listen to 232, where we tell you how bad this is, and then

[0:11:34] we tell you what we think is going to happen. Right. Which is that exactly what did happen, that various groups withstanding here. Here it was several labor unions went to district court, successfully got an injunction. That injunction went all the way up to the Wisconsin Supreme Court, which for three on partisan grounds, the four conservative justices on

[0:11:59] the Wisconsin Supreme Court voting to uphold the the the acts. And I should describe procedurally, because this is an appeal of an injunction that was put into place, right? This is our old familiar friend in terms of demonstrating irreparable harm and likelihood of success on the merits. So this opinion is not about the merits of the underlying law and the constitutionality of the underlying law.

[0:12:30] It is reversing the district court's opinion, entering a preliminary injunction. And blocking the laws from going into effect. So now the laws are going to go into effect. There will still be the underlying hearing on the merits. So I should correct that first sentence. Um, that being said, you know, it is axiomatic among lawyers when you,

[0:12:57] When a party wins an injunction at the trial court level and that's reversed on appeal, that's a pretty strong indication of where the appellate court is going to go, unless, you know, there's... there's some indication that it's a close call on irreparable harm or something like that, right? I mean, that's the court saying, weighing in, going, "No, we think that the district court erred as a matter of law"

[0:13:22] when it determined that you were likely to succeed on the merits of of the underlying claim. This is really weird, um, so I, the the reason for doing so, uh, because there is a, this is a matter of Wisconsin state law, right? So I'm not a Wisconsin lawyer.

[0:13:44] But the majority's opinion says this.

0:13:49 Andrew: Where a party against whom a temporary injunction has been entered seeks a stay of that injunction pending appeal, the appellant must make a strong showing that it is likely to succeed on its appeal of the temporary injunction. OK, so far, that's the standard rule. We have explained, however, that this strong showing is met when the circuit court has enjoined a statute based on its conclusion that the statute is unconstitutional. The plaintiff's likelihood of success on the ultimate merits of his or her claim is not necessarily the inverse of the appellate's likelihood of success on appeal of a temporary injunction. If that seems confusing to you, it's very, very confusing to me, too.

0:14:40 Andrew: Oh, thank God.

[0:15:01] appealing that, then axiomatically that is an indication of a strong showing of a likelihood of success on the merits on on appealing the temporary injunction. Get that? So what that's saying is we think presumptively that when a circuit court, when a trial

[0:15:20] court says that a law is unconstitutional, that it's probably wrong. That's what it sounds like. That is. But But that's absolutely doesn't make any sense. Yeah, it is. That is bananas. I have, I have never. And I went, I looked through Wisconsin laws.

0:15:40 Andrew: Right. I read this is the Gundershwager opinion.

[0:15:45] And when you read it, right, page 441 of the opinion says, "Regularly enacted statutes are presumed to be constitutional. Constitutional." Therefore, we conclude that for purposes of deciding whether or not to grant a state pending appeal, the state has made a strong showing that it is likely to succeed on the merits of its appeal of

[0:16:03] the trial court judge's finding that a statute is unconstitutional. I, it, that's insane. Um, but that appears to be the law, and this case is from 1977. The

[0:16:16] previous case that it cites is from 1965. It has been long-standing law in Wisconsin, apparently, that the courts will presume that district courts, that, I'm sorry, I'm saying district, they're, they're the trial courts, courts are called circuit courts in Wisconsin State, but that Wisconsin State trial courts get it wrong when they decide that statutes are unconstitutional.

[0:16:40] That's a really weird thing. I can't think of why that would be. I cannot. I mean, I just read you the justification, right? The justification is we want to make it very, very difficult

[0:16:53] for you to enjoin laws from going into effect.

[0:17:00] So there you have it. So what all is going into effect? The Section 26 that I told you about, Section 30, which, which provides that with respect to civil actions against the state or a state department officer, employee or agent in which the plaintiff seeks injunctive relief or a consent decree, in order for the attorney general to compromise or settle the action, the attorney general must get the consent of the legislature.

0:17:28 Andrew: So, again, the attorney general cannot settle lawsuits against the state. Section 64, which provides that the legislature's joint committee for the review on administrative rules may suspend an administrative rule multiple times. And then finally, a whole bunch of provisions that deal with creating administrative materials. And again, the purpose of creating the administrative materials is to provide guidance that makes it

[0:17:59] incredibly difficult for the Democratic administration to get out from Republican actions that were taken, particularly Republican lawsuits challenging Obamacare. So there you have it. Like I said, this drew a three-judge dissent from the judges who were not appointed by Scott Walker.

[0:18:25] But, you know, dissent is the side that loses. Loses so important

0:18:33 Thomas: Law fact, dissent is the side that loses, so I mean, how, how outrageous is this? I mean, this is, I, I'm trying to put myself in the position of, like, you know, um, let's say we were in a position where we knew Trump was coming into office and we had some control, you know, would we be, would we be so mad if we locked in some Obama executive policies or something? I mean, what do, what do you think about, I don't know, this, the fairness of of all this? Yeah.

[0:19:04] So that's that's an interesting it's an interesting counterfactual. Right. Knowing what we do now, would I want to see? I mean, I suspect that, you

0:19:17 Andrew: Know, you and I will be on the front lines for arguing in 2021 and beyond against legislative delegations of executive, of authority to the executive branch, right? Because we've seen what Donald Trump has has done with that.

[0:19:34] That's different, right? Changing those rules once you've democratically elected somebody, presumably on a platform of, "Hey, look, we got to get Trump out of there," is is very different than losing an election and changing the rules in a lame duck session in a way that's never been done

[0:19:52] before. Um, and and and the crucial aspect of this, right, you know, as I said from the beginning, is part of the reasons why, you know, look, there were lots of reasons why Democrats won in Wisconsin in twenty eighteen, after Wisconsin, uh, voting for Donald Trump very, very narrowly, but, uh, voting for Donald Trump

[0:20:11] in 2016. Um, and and to the extent that there is any notion of democratic accountability, right, the the idea that you would vote for somebody and then when the the vote goes the other way, change the rules for that office before that office holder takes effect, I, I would, I would object to that. Look, I would go back in time, right, and now, now assume that we could cripple the Trump presidency and or Donald Trump's attorney general, um, you know, first Jeff Sessions and then Bill Bar, right, there's not a lot that that we wouldn't be willing to do to, you know, sort of roll up the sleeves and and and fight dirty on that, but if, if Democrats had somehow engineered a way to strip the attorney general of, you know, the

[0:21:08] classic functions and powers of the attorney general prior to Trump taking office, like, I, I, I like to think I would have been against that, you know, that that's just, yeah, you look at, I mean, look

[0:21:20] like go back and look and look at our and listen to our recordings from November and December of 20, of 2016, right, like we, we are despondent, um, but but nevertheless, right, like this was a time when we were pushing back against Jill Stein and the recount, and that's right, it was, look, you gotta deal with the fact that elections have consequences, right, and you've got to deal with the fact that, you know, we failed to mobilize and message in, in such a way as to

[0:21:52] prevent Donald Trump from taking office. And, you know, and I think that there's something kind of fundamentally wrong about saying, "Hey, we lost an election." But, you know, here's how we can, you know, carve out and preserve powers in a one-sided way anyway. Because that's that's that's ultimately what this comes down to. If the Republican candidate had won

[0:22:16] in Wisconsin, the legislature wouldn't have done this. Right. And whenever you you you gather together to pass a rule that is designed to change the playing field, and you do it only because

[0:22:28] of the partisan results of an election that that strikes me as tough to defend. So the

0:22:34 Thomas: Issue is they've they've locked in like it would be one thing. This shouldn't be a problem apart from

[0:22:41] gerrymandering, really. Right. I mean, isn't that the key? Like, yes, that is. And that's the people keep telling you Republican, Republican, Republican for everything. And then, you know, there's a Republican governor, but then the Democrat wins the governorship, but Republicans still control everything else. Like it's not it's not that outrageous to have Republicans trying to limit that Democrats power just the same way. I think it would be vice versa. But the fact that it's gerrymandered so badly that despite, you know, the numbers being pretty close in terms of Republican Democrat, the seats are not nowhere near close and they get to lock in power forever,

[0:23:17] basically.

0:23:18 Andrew: Yeah, that's exactly, I mean, that's the only reason that you do this, because you look at it and go, we have a three to one, right, a ninety nine to thirty five advantage in the, you know, in the General

[0:23:31] Assembly and in a state that is overwhelmingly Democratic.

[0:23:39] So, yeah, you well, I don't know about that. I mean, I think that they I think the Republicans still won the popular vote by a little bit.

0:23:47 Andrew: In in 2016, the Republicans won the popular vote in Wisconsin. That's right. Historically, Wisconsin has been a blue state.

0:24:00 Andrew: And it certainly has not been right. Ninety nine to thirty five is the kind of margins you expect in Alabama and

0:24:06 Thomas: Utah. Right. Oh, yeah. No, no argument there. But I do think they won in the congressional state, you know, congressional things. I think Republicans did did hold a slight edge in popular vote. But that that translates into an

[0:24:19] enormous advantage in seats because of the gerrymandering. Right. And it translates into an advantage so large. Right. I mean, one of the things that that A.G.

0:24:32 Andrew: On Mueller, she wrote, always says is, you know, the solution in 2020 is vote in numbers large enough that all of the voter suppression and everything else doesn't matter. Vote in numbers too large for for them to steal. Right. And.

[0:24:50] Ninety nine to thirty five is an advantage that is to inherit, is an inherent advantage that you can't vote in numbers large enough to overturn that. Right. Yeah. I mean, literally a three to one advantage to Republicans. So, yes, right. It is it is the the gerrymandering over representing Republicans in the Republican controlled Wisconsin state legislature and then vesting all the power in the state legislature. Right. This is exactly, by the way, the the game behind repealing Chevron deference. Right. It is Republicans looking at the judiciary and saying, hey, we're about to have a permanent stranglehold on the judiciary for decades, so let's take determinations on the scope of executive orders away from the executive branch because presidents come and go, and let's put them in

[0:25:47] the hands of dedicated ideologues because we know how they're going to go and there's no chance. They got a life tenure.

0:25:54 Andrew: So it's it's zero risk. And, you know, and so folks often ask me, right, why are Republicans, why are the Federalist Society activist types so dead set against Chevron deference, particularly when, as we've pointed out time and time again, Again, the original Chevron decision was a fairly conservative Supreme Court upholding the

[0:26:19] Reagan era Department of the Interior regulations. Right. And so folks will say, well, look, like, why would Republicans want to overturn that when, you know, they control the White House right now? And the answer is they're not going to control the White House forever. They are going to control the

[0:26:37] judiciary for a generation.

0:26:39 Andrew: Same thing looks to be the case in Wisconsin. They're not going to control the governorship forever. They don't control it now. But it looks like they're going to control the Wisconsin state legislature for the foreseeable future as the Supreme Court, as we anticipate, is likely to rule that political gerrymandering is just fine and is the cost of doing business. Um and uh and so you shift power away

[0:27:04] from accountable, right? From, from, from those who can be held accountable and towards those who who can't. Um, and, and I want to do a quick, Andrew was right, because I was looking at the state senate, so.

0:27:18 Thomas: The state senate, and who knows how the popular vote works for that, you know, could depend on a number of things, but uh, for the state, for the house, which I think you were talking about, so that's the, that's my confusion, sorry about that. You're totally right that for the House election, the Democrats, just to give people an idea of how badly gerrymandered this is, this is awful. The Democratic popular vote was 53 to 44.75, so a very healthy victory by the Democratic popular vote. And the seat percentage, as you pointed out, was 63 to 36 or so, roughly. So Republican, the other way. So Democrats won the House popular vote in the state of Wisconsin by, what, eight points, and control a third of of the seats, a little, little over a third, so that, that is absolutely garbage, so yeah, that's that's a tyranny of the minority right there, just uh, controlling everything through unethical, and I mean I guess it's legal means technically, but it shouldn't

[0:28:20] be. And, and let's point out how pernicious this is, from page nine of the majority opinion, the

0:28:27 Andrew: Harm to the public that the supreme Supreme Court of Wisconsin has said would arise

[0:28:33] would arise from keeping the stay in place. Right. Quote, "On the other hand, the public as a whole suffers irreparable injury of the first magnitude where a statute enacted by its elected representatives is declared unenforceable and enjoined before any appellate review can occur." End

[0:28:51] of quote. Right. So, I mean, think of the, that, that, that statement sounds great in the abstract. And if I were a law student, I would be reading that and nodding along, and, and, and think of the disconnect between that and reality. Right. Like, this was the, the actions of a lame duck session that had just been resoundingly defeated at the polls. And the idea that the public is clamoring for the bill that they were trying to cram through in a secret special session, and that, that, and so, and so, that thereby you are harming the public by not letting these bills go into effect. It just, you know, in no way matches up with reality.

[0:29:35] Oh, this is infuriating. Yep. And it's going to get worse. So, well.

0:29:41 Thomas: On that happy note, are we ready to uh, to move on to our next segment? Yeah.

[0:29:47] because this has some, some light at the end of the tunnel, so good. All right, let's move on. Appreciate the opening arguments is brought to you by Um and I'm Brewing. You've heard them in the Patron weekly shout out well, they're here as an official sponsor. I'm so excited about this, guys. I had some of Um and Um's beer. I had the Honey Pale Ale. It was delicious. I'm so excited to tell you about them. So, Um and Um is an award-winning, locally brewed craft beer, and they are California's first and only brewing cooperative. They are a great community of like-minded individuals who like beer and other tasty fermented beverages. They are democratically owned and operated and based in San Jose. They have exciting events almost every month, including tasting events, beer festivals, and other celebrations.

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0:31:49 Thomas: Okay, let's talk about that census. Any other uh, Republican operatives die, that gave us some uh, some letters and some insight into? No, I mean, that's what I'm hoping for.

0:32:01 Andrew: Yeah, please note that that is just Thomas expressing a desire about

[0:32:07] the state of discovery, and is not meant to be a call to action. It's absolutely my wish that some other Republican died of natural causes. Am I allowed to? You can say that. You can, natural causes, I don't, worry. Yeah, I don't, can't control nature yet. There you go. Did you tent your fingers like Mr. Burns? Patreon goal. But you know, since the dawn of time, man has yearned to blot out the sun. No. OK. So on the continuing ongoing efforts by the Trump administration to weaponize the census, we covered in the last episode on a deep dive, but still current events Tuesday and and a couple of things. That was episode 286. A couple of things have developed since then.

[0:32:56] First, one of the respondents, the New York Immigration Coalition, has, as we expected, filed a conditional motion to remand the proceedings from the Supreme Court down to the U.S. District Court for the Southern District of New York. We talked about the jurisdictional issues on Tuesday and that the Southern District has jurisdiction over the

[0:33:28] contempt motion. And so very sensibly, the the NYIC buying through its counsel and it is top notch counsel here. Right. Multiple first rate law firms, Aiken Gump and and the ACLU filed a short brief. It's a good argument, right? And the brief argues there are a couple of really interesting things in

[0:33:54] the brief, right? So the first is it quotes from trial testimony below that says the census question can be finalized as late as October 31st of 2019. That's a new fact, right? The government has represented, oh, no, we got to have it by the end of June. The Supreme Court has said previously that it would issue its ruling by the end of June. But at least in this filing, and again, this filing was yesterday, so we haven't seen the opposition to it yet. Um, the, uh, NYIC quotes from the underlying record that says, no, um, the government has previously said that, you know,

[0:34:35] With, with effort, uh, it could participate, you know, it could change the question, uh, as late as October 31. So the whole thing was like, well, I mean, we've put a little effort

0:34:47 Thomas: Into it. I guess if things are getting so dire such that we have to put some effort into it. Okay, fine. All right. We can do it.

[0:34:54] I didn't know, so that that big deal. Yeah, apparently, uh, you

0:35:00 Andrew: Know, that the Trump administration wants to be able to proceed on the, like, you know, oh, look, we, we gotta, we gotta have, we gotta count for casual Fridays plus it's, you know, Marge's birthday, and it, at the end of, uh, at the end of June.

[0:35:12] So, and who knows, um, but kind of point one, uh, October 31st, 21, 2019, is the, the date that Nyc says is the drop dead date, um,

[0:35:25] I, I interpret that as, uh, as follows. If the Trump administration gets a victory on or before the end of June, right, that is in

[0:35:37] the next two weeks, uh, they will very likely say, oh, sorry, gotta gotta go to press. Yeah, uh, if they lose, they will continue to hold out, uh, right. Right. We'll get another new fact that's like, OK,

0:35:49 Thomas: It looks like if we put in an extra two hours on a Saturday, we can go another four

[0:35:56] months of deadline. Yeah. So that's sort of point one, the legal argument is

0:36:02 Andrew: It's a really good legal argument, right? It, it's a, it's a very, very narrow one, but it says that the, the Supreme Court ought not to exercise jurisdiction over a case where there are material facts that have not been adjudicated below. The Supreme Court is not,

[0:36:21] contrary to every lawed awful movie we've ever watched, the Supreme Court is not the place where you do your fact finding. So what the court should do is issue a limited time barred remand, uh, and and conduct the fact finding on the issues relating to Hofeller's, Hofeller's documents, and whether, in fact, this, because, you

[0:36:45] know, part of the argument is that the stated rationale is not rationally justified. Remember, we've talked about this is a high burden to bear. But if you've written, we need to enact this particular question in order to uphold the Voting Rights Act, and there's an internal document that says this will benefit Republicans and, quote, non-Hispanic

[0:37:11] whites, end quote, then you know damn well that that argument is pretextual. Right? And even as as high a bar as that is to prove in court, that's, you know, if that's not a smocking gun, then that phrase has no meaning, right? Yeah, so, oh, wow.

0:37:31 Thomas: I think that was either the best joke ever, or inadvertently the best joke ever, but either way, you should get credit. That's like when, I guess, a bar exam question, uh, yeah, if that's not a smocking gun, then that phrase has no

[0:37:43] meaning. Wow, that's, that is, sorry, quote, print it, put it on a shirt or something. That was really well done, Andrew. Thank you. Well, thank you. So, um so the, the petition seeks multiple potential alternative

0:37:58 Andrew: Avenues for relief first it says that the supreme court ought to just summarily affirm the

[0:38:04] the district court's opinion below. They're not going to get that from the Supreme Court. Uh, second, it it says that they should, in the alternative, issue the limited remand for fact finding on Hofeller or third,

[0:38:16] that the court should hold its decision in abeyance. Right. That is not proceed to judgment on the marriage, because as we've talked about, right, this this case has already been briefed and argued before the Supreme Court and the Supreme Court that there's likely a judge writing this opinion as we speak. Right. And so in the alternative. Right. The memorandum

[0:38:43] says, OK, look, if you don't want to send it down for more fact finding at minimum, just don't issue an opinion right now. Hold it in abeyance. This thing is going to get briefed by August. The court is going to very promptly issue findings on the sanctions motion. And then you can revisit where you are after the sanctions motion comes down. And as the brief points out, there is a mechanism at the Supreme Court. It is called dismissing the writ as improvidently granted. Right. And so what that means is the Supreme Court can change its mind.

And this is something that happens. I mean, everything at the Supreme Court is infrequent, but not infrequently relative to Supreme Court procedural stuff. Right. Sometimes they'll look at it and go, oh, hey, look, we granted cert in this case. Then we found out X. And now we're going to move to dismiss the writ of certiorari as being improvidently granted. And if they do that, then the district court's opinion stands. The injunction stays in place. The merits decision works its way up through the ordinary course. And the question stays off the census. That's the victory. Right. And

[0:39:50] and look, let's be 100 percent clear here. The way in which this becomes, in which we get to that outcome, is if there was enough public pressure and shaming on John Roberts that he is embarrassed to sign on to a decision that says, yep, nothing to see here, put the question on the census. That's, that is the goal at this point, is to hope that the

[0:40:15] institutional aims of, of Chief Justice John Roberts, uh, outweigh the the political aims. And, um, and so that's why we're going to continue to talk about it. The more that this is out there in the public, the, in my view, you know, this, it's one of these rare cases where, you know, the, the, the legal analysis is 100 clear, um, the question

[0:40:40] is, you know, where, where is the political analysis going to come down. Yeah, that's not really how it should work, but no, not at all.

0:40:50 Andrew: You know, this is what happens when you have a Supreme Court that is stacked with conservative ideologues. Right. Because there is no chance. Look, we're going to talk about this. Right. It is not the case that even Sam Alito, you know, always votes in accordance with his political outcome, regardless of what the law says. Right. Like, there are lots of non-controvert, not lots, there are no lots of anything at the Supreme Court, but there

[0:41:15] are non-controversial cases that come up, right? There are non-political cases. Yeah, but that's only because it's

0:41:21 Thomas: Non-political. That doesn't mean like, oh, he votes against his politics for the law all the time. No, it's not that. It's that there are questions where the politics don't factor in. It's not as, you know, it's not as partisan. It's not a major political issue. So he's just like, okay, now I know the law. For the for the following question, I

[0:41:40] know the law and then we'll see what happens later. Yeah, that's I mean, that's that's right. That is that is the correct way to describe Sam Alito's jurisprudence. All right. On that note, should we should we yodel a little bit? Well, there's... there's a little bit more with respect to the census. So, just

0:41:59 Andrew: Two days ago, the White House asserted executive privilege over

[0:42:05] those internal materials that are referred to in the Hofeller documents. They've said, no, we're not going to turn these over to Congress. And as a result, the House Oversight and

[0:42:18] Reform Committee that is chaired by Elijah Cummings, we've talked about them before, they have voted to hold both Bill Barr and Commerce Secretary Wilbur Ross in contempt. This follows the playbook. And I should add, they were joined by new best friend of the show, Republican Michigan Congressman Justin Amash. So you can no longer say on a party line vote, this is the first step in the same procedure that we talked about with respect to contempt for McGahn and Barr, which, by the way, yesterday, the full House of Representatives voted 229 to 191 to authorize. The House of Representatives to bring a lawsuit to enforce the subpoenas against McGahn and Barr, right? So the finding of contempt is the predicate finding, and then you go to the full House and go, "Hey, we want to go to court and get a declaratory judgment and injunctive relief requiring these folks to testify." And the House is going to do that with respect to to McGahn and Barr. And as we've said, they're going to win at the district court level. The law is very, very clear here. So, you know, it's things continue to move in

[0:43:39] exactly the way that we've described them. And look, I mean, this is this is a dark and bad timeline, but these are these are positive results. Yeah, it's Trump is the epitome of that. Like once you

0:43:52 Thomas: Once you have a hammer, everything looks like a nail kind of thing. Somebody taught him executive privilege, and now everything's executive privilege. I wouldn't be surprised. I mean, not that he drives, but he'd get pulled over by the cop. "Hey, can I see your license and registration?" "Sorry, executive privilege, I don't have to give that to you." I don't have to, nothing. He just, he tries to declare it over, unrelated, any

[0:44:11] any paper, I think it's any document, it's like, no, sorry. Exactly, yeah. Look, we already know that his view

0:44:17 Andrew: Of attorney-client privilege is, did I have a lawyer in the room? So, yeah, you know, it doesn't surprise me that his

[0:44:23] view of executive privilege would be, I'm the executive. He He's been carting around Michael Cohen in the, uh, in

0:44:29 Thomas: The Hannibal Lecter-like dolly, you know, like the thing. He's like, I have my lawyer are present, so executive privilege

[0:44:35] just wherever I go. All right, there you go. Now, now we should get a yodeling. Yes, I want to make sure we had plenty of yodel time because we are already a little short, but we'll make it work. Here we go. "Because people have got to know whether or not their president's 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."

0:45:07 Thomas: So, what uh, give us a yodel update in your best yodel voice. No, you don't have to actually, yeah, I was going to say

0:45:13 Andrew: I'm going to skip the yodel voice. There There are a couple voices that I can do, but, uh, yodeling is not one of them. So, uh, in on Tuesday's episode we told you that, uh, actually, actually, last Friday's episode, we told you that Michael Flynn had fired Covington and Burling while his sentencing was still pending. Today, I mean, literally minutes before we've recorded, we learned that Michael Flynn replaced Covington and Burling, one of the country's oldest, most respected law firms, with Sidney Powell, a Fox News contributor and talking head. Look,

[0:45:53] and again, let me, be let me steel man this as much as possible. Right.

0:45:59 Andrew: Sidney Powell has credentials as an appellate lawyer and a an occasional foray into white collar criminal defense. OK, she is not incompetent on the order that that we have sometimes seen from the Trump administration. But nevertheless, right, this is like firing Covington and Burling and hiring me. Right. It's it

[0:46:24] is 100 percent designed to send a political message. It is no surprise that this was retweeted out by Donald Trump himself, who said, you know, yeah, Flynn fired those losers and hired a great capital, great lawyer. And good luck to both of you. It is also not a coincidence that this move is occurring one day after the House Permanent Select Committee on Intelligence subpoenaed Michael Flynn with respect to the ongoing Russia investigation. They had to issue a subpoena because Michael Flynn has indicated he will not testify voluntarily. His plea deal with the Mueller team only requires that he testify in DOJ investigations, right, in criminal investigations. So he's

[0:47:09] not required by the terms of his plea deal to testify before Congress, and he's not going to. So they've had to issue a subpoena. We do know by the terms of his plea deal that if he commits a crime that invalidates the plea, and

[0:47:25] they can and believe me, prosecutors would go back and and indict, and he would be in Manafort levels of trouble unless he's pardoned by Donald

[0:47:38] Trump, which this clearly seems to be angling to to be right. Have you made any

0:47:44 Thomas: Sense out of this deal? Really? Is there more stuff we don't know? Because it just doesn't seem like we got, does it seem like

[0:47:53] we got enough for this deal? I guess is what I'm asking. So you know I I mean we

0:47:59 Andrew: We could have, uh, Randall Eliason back on the show, but I'm gonna, I'm gonna do my best to channel him here and say, look, Flynn Winn was one of the first guys to flip. He was high up the chain. And when you are conducting an investigation and you get a big fish, and you believe, and look, Mueller and his team are experienced prosecutors. Right.

[0:48:24] They they have to make a judgment about do we think this witness is 100 percent truthful?

0:48:30 Andrew: Do we think he's mostly truthful? Do we think he's mostly lying? Do we think he's foolish? And, and look, they, they did that right, like with with Manafort. Right. They absolutely, they gave him enough rope to hang himself twice. Right. They, they realized what they were dealing with, with Paul Manafort. My guess would be, you know, if you could administer reliable truth serum

[0:48:54] to to Robert Mueller and say, did you get enough out of Flynn, like he would probably concede, no, no, we didn't. But, you know, but they had to make that judgment at the time, right. And but it's not like, it could, is there more stuff

0:49:07 Thomas: That's like redacted that we don't know yet or anything like that, that you just think it's a, it's because he was kind of the first, so

[0:49:13] always be the first to flip, everybody. Yeah, look, look, that is, and again, I'm not a criminal defense lawyer and you shouldn't take legal advice from a podcast under any circumstances, um, always be the first to flip is really, really good advice, right. It

0:49:26 Andrew: It really, a same thing, thing, multi-party civil lawsuit, always be the first to settle, right, like it, it absolutely, um, that is, that is really good baseline advice. And and Flynn got a

[0:49:38] you know, Flynn got a good deal. I'm ready to flip, I'll talk on, on Andrew, I don't know, I'm just, I'm trying to be, get out there in front of stuff, I don't, just, whatever, that is an important thing to do, I know, there's no legal difficulty we're in, or I'm just saying, Prosk Muller, I'll talk first, out of me and Andrew about whatever. Call, call me, Bob, TTTBE gate, whatever, whatever, uh, so look, so that's gonna be bad. And, again, you know, I don't know if, if, uh, if Negatron is is rubbing

[0:50:10] off on me, um, in any other administration, the inevitable impending pardon of Michael Flynn would be a Saturday Night Massacre, right, would

[0:50:22] be enough for, uh, members of the Republican Party to to look at this at the facts and go, this crazy, I mean, this, this is, this is using, misusing a core presidential power to obstruct justice over somebody who is, uh, you know, demonstrably

[0:50:42] listed at length in the Muller report. Yeah, I mean, we better make a BFD about this, if this happens. I mean, we better really be on the streets because that it should be. Yes, absolutely, it is. And again, I try, I mean, you know, look, our politics are out there on obviously and on our sleeves in the show, but we try not to be alarmist. We try not to say, you know, this

[0:51:08] is a BFD, you know, because you just can't. Glad I got you to say that. Right. Right.

[0:51:15] This is this is when this happens. And I believe that it will. I hope the optimist in me hopes that this pessimist coming out right now is, you know, does not come to. Like this should be a watershed moment. It should be enough to cause Republicans to go, OK, like this is, that this is too far. Um, I, I, I don't think it will be. Um, and, uh, and and it's our job to to make sure that it is. All right, well, one more thing which was breaking news, I know this is very preliminary,

0:51:53 Thomas: Andrew, but I'm sure you already have a better handle on it than than most people listening, I'm going to go ahead and say, no insult to our listeners, that's more of a compliment to you, uh, what happened with Kellyanne Conway and the Hatch Act, and a, a what happened, and b, is this going to have any effect on kelly and Conway, or is it just going to be another thing that gets ignored?

[0:52:14] So let me answer the first part first, because, uh, the prognostication part, uh, you

0:52:21 Andrew: Know, I mean, you, you, you just heard, and, and, um, and we'll get to that when we get to what happens. The Hatch Act is 5 U.S.C. Section 7323. It is almost a century old, and it prohibits now a federal employee from, quote, "using his or her official authority for, or influence for the purpose of interfering with or affecting

[0:52:46] the result of an election." Okay, that has long standing been interpreted as prohibiting public officials in their official capacity for advocating for or against political candidates, while, you know, serving in that capacity, right? To steel man the

[0:53:05] other side, um, that's, a of course that's a tough tightrope to walk when you're talking about, for example, a president in the in the middle of, uh, a re-election campaign, right? Like it is a large part of doing your job. Right Right? Is arguing that your boss is doing a good job. Right. So, so Hatch Act prosecutions are rare.

[0:53:30] Yeah, and and and there is also a First Amendment consideration here in that, you know, we we generally want to err on the side of letting people in a participatory democracy, you know, have have opinions. Right. Right. And so, you know, the reason I put that out there is because if if you want examples of hypocrisy of the highest order. Right. You have the

[0:53:57] crazy Tucker Carlson deep web conspiracy theories about Peter Strzok and Lisa Page, where, you know, they discovered private chat messages between them while they were working at the FBI, you know, while they were having an affair expressing their

[0:54:15] political opinions about Donald Trump. Right. And so, you know, you you we want to we want to fully be out there with respect to how narrow the Hatch Act is. The Hatch Act means you

[0:54:28] can't put up the secretary of state to say, hey, if Donald Trump gets elected, then, you know, we're going to be, you know, we're going to be attacked by, you know, Germany will launch intercontinental ballistic missiles at us. Right.

[0:54:47] That's that's what it's meant to to to prohibit. And in in the scope of that, the Hatch Act has been challenged on First Amendment grounds at least twice, most recently in 1973, and found constitutional. Right. Case called U.S. Civil Service Commission versus National Association of Letter Carriers. That challenged various provisions of the Hatch Act. And and the Supreme Court six three

[0:55:16] opinion said that the judgment of Congress, the executive and the country is that partisan political activities by federal employees must be limited if the government is to operate effectively and fairly. Elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from

[0:55:35] improper influences. Um, I could go on, but you know, that's pretty clear. So it said, hey, look, um, there are some First Amendment issues here, but because the Hatch Act isn't viewpoint discriminatory, right, because what it says is we we expect you to do your job in a neutral fashion, right, in accordance, uh, with the will, will of Congress rather than their own will or the will of any particular political party. Um, that's, that's not the same kind of infringement upon freedom of speech as if, you know, it applied in a, in a one sided, uh, or partisan way.

[0:56:12] Um, the dissent in that case, um, was criticizing a portion of the Hatch act that has since been repealed. The old version also prohibited federal employees from, quote, taking an active part in the political management of political campaigns or political campaigns. And so, you know, if you were a federal employee, you couldn't be a part of a campaign and you couldn't yourself run for office. And and that's part of what the petitioners were challenging in court in 1973. They lost. The court said that's totally fine. But later they got legislative relief. In 1993, the Hatch Act was amended to allow you to take an active part in political management or in political campaigns, so

[0:57:02] long as you don't do the bit that I quoted from the beginning, right, which is use your official authority to influence the outcome of an election.

[0:57:12] So that's the Hatch Act.

[0:57:40] what they do, right, and those are called, um, prohibited personnel practices, right, things like firing a whistleblower for blowing the whistle, right? Right, OSC is the agency that enforces all of that, and they have jurisdiction subject to 5 U.S.C. section

[0:58:01] 1214. A Trump nominee is the head of the OSC, right? This is not a CFPB kind of situation, um, this is uh, uh a Trump nominee named uh Henry Kerner, not somebody I could find a whole lot about, but somebody appointed that kind of. Yeah, exactly. Um, and so he has been after uh the administration with respect to the um just blaze, just brazen disregard of the law by Kelly and Conway, uh, pretty much since taking office.

[0:58:40] Um, pretty much since uh becoming uh head of. Well, he needs to be fired, clearly. Um, he probably will be. Um, yeah, uh, you know, we don't want anyone doing their jobs around here. Sorry, you're gonna have to go. Yeah. Um, so on multiple occasions, the OSC has determined that Kellyanne Conway is a serial offender of

[0:59:05] the Hatch Act. Um, in, she gave interview, and and and they first made those findings in 2016, when Kellyanne Conway, as counselor to the president, on national television from the Rose Garden, endorsed Roy Moore. Um, that is as flagrant a violation of the Hatch Act as you can possibly get, right? Like, all of the other First Amendment considerations, you know, stem from the looseness of that language, right? Like, how much is, you know, trying to, but like, endorsing the guy is is as close as you can possibly get.

0:59:42 Thomas: Yeah, like, you know, know, we'd be willing to give a lot of leeway to certain, you know, things within your job that you might say, but like coming out and saying vote for the child molester, uh, right. And

[0:59:54] that's, and that's what she did. That's exactly, like, no part of her job needed her to do that. It, that is 100 correct, right? So, and and again, contrast that, that, right, suppose you have

1:00:07 Andrew: Trump's director of the Office of Management and Budget who comes out and says, we think that the Trump tax cuts are going to spur on a new era of American growth, right, like, that, that clearly would affect

[1:00:19] right, had the potential to affect the election, um, but but nobody would would bring a hatchet, let alone Donald Trump's own appointee, right? Yeah. So when. But when we describe, you know, how egregious this is, you know, keep keep that one in your back pocket. So in 2017, she gave interviews in her official capacity to Fox and Friends. Steve Doocy introduced her with her title, council, counselor to the president. She was standing inside the White House. The chyron ran counselor to President Trump below. And then after that, she appeared on another show called New Day.

[1:00:58] I never even heard of that, in which she described Doug Jones as weak on crime and a likely vote against the Trump back tax cuts.

1:01:11 Andrew: So OSC issued a report. It said, hey, that violated the Hatch Act. President Trump, you need to do something. You need to take, quote, appropriate disciplinary action. Um, Donald Trump didn't do anything, and Kellyanne Conway has continued to violate the Hatch Act. And most recently, here, I'm just going to read from some of it, from February 1st, 2019 to May 1st, 2019, she repeatedly commented on 2020 presidential candidates during official media interviews, right. Consistent with her duties of the administration, Miss Conway routinely gives, gives official interviews promoting the president's agenda. Again, that's fine.

1:01:51 Andrew: From February to May, Ms. Conway gave dozens of interviews. During these interviews, some of which occurred on White House grounds, she was introduced as counselor to the president. While speaking in her official capacity, Ms. Conway engaged in campaign rhetoric, remarking on the strength of Donald Trump's candidacy and the weakness of the Democratic candidates in the upcoming 2020 presidential election. Her comments were directed at persuading voters not to support the Democratic Party candidates and therefore constituted political activity under the Hatch Act. So some of these examples are two minutes into another

[1:02:26] Steve Doocy interview.

1:02:29 Andrew: Ainsley Earhart asks Ms. Conway for the administration's reaction to Senator Cory Booker's candidacy. Kellyanne Conway says, what's wrong with the candidates that are already in there? What's your objection to Kamala Harris running, Elizabeth Warren, Kirsten Killebrand and those others who have already announced? Tulsi Gabbard, maybe if Senator Booker were Republican running against them, he would be

[1:02:47] called a sexist. And then Ms. Conway said she would ask Senator Booker exactly what he had accomplished to qualify him to be president. She responded to her own question with three main points. He was a motivational speaker who could be tinny. His record of mayor of Newark, New Jersey was lacking, and he could not even bring himself to continue to help those children through school choice because the Democratic Party had moved. All right, so

1:03:12 Thomas: Far, here's my question for you, isn't she in a made-up position anyway? Or, yes, yeah, so like this is colossally stupid on all sides. No, I, she, she violating this, uh, you know, she's

[1:03:24] receiving a government paycheck, I'm guessing, right? I mean, oh, yeah, that's why. That is why this applies. Yeah, no, I'm not saying, I'm not saying this shouldn't apply. I'm saying absolutely this should apply, and she should, whatever the penalty is, she she should pay it over and over and be fired. But like these idiots just need to put her in the in a campaign position, and then it's fine.

[1:03:43] Right. I mean, that's what she's doing anyway. Yeah. But and that's the whole point of the Hatch Act. Right. If you want a campaign spokesperson, have that person be a campaign spokesperson, because funded by your campaign. Yeah, because then the media will

1:03:57 Andrew: Cover, or not cover, what your campaign spokesperson says appropriately, right? Yeah, how, how often did you see from, you know, various Trump campaigns, I mean, I guess you saw a lot from Omarosa during the 2016 presidential, but like, that, that person is a paid flack, and the media report on that person is a paid flack. When somebody has an administration job, the media have to cover that person, right? You can't just be like, oh, well, we're not going to talk to Sarah Huckabee Sanders anymore, right? Like you, you, you

[1:04:29] you have to to cover that arguably yeah well I think they ought to. Well, she just quit.

1:04:35 Thomas: She's just like, what's the point of this anymore? Well, she barely does her job anymore anyway. I think some celebrity rock star was using her podium last we checked. But yeah, okay.

1:04:47 Andrew: It was Kiss, right? It was Jean Simmons from Kiss. Yeah, it was somebody from Kiss, I think.

1:04:53 Thomas: She'd have to wrestle her podium back from Jean Simmons in order to do her job. But anyway, what is the actual penalty

[1:05:00] for this? Yes. Or in a hypothetical world where rules apply. Right. So I gave some of those these examples. This letter, the cover letter is two pages long. The official finding is 16 pages of single spaced 10 point font. It's it's agree. And when

1:05:19 Andrew: I say it's egregious, that's not me editorializing. That is conclusion. Ms. Conway's

[1:05:25] Hatchet violations are egregious, notorious and ongoing. Going, it's like the main heading, egregious. It is, it is, that I'd add, and again, lawyers don't write this way right unless it's crazy. Um, what I think pushed uh OSC over the line was the last interview, uh, in which kelly ann Conway disparaged Joe Biden. Again,

[1:05:50] you know, she may have some points there, uh, but uh, but when, uh, one of the reporters said, um, Ms. Conway, isn't this a violation of the Hatch Act? She said, and

[1:06:03] I am not making this up, blah blah blah, while being asked the question, right. And then, quote, this is all reported in the letter, if you're trying to silence me through the Hatch Act, it's not gonna work. Let me know when the jail sentence starts, right. So here is, right. And again, when we've talked about, you know, is there room for optimism that

[1:06:28] you can overplay your hand, right? Here is exhibit A of overplaying your hand, right? Here is somebody who is too stupid to understand that you can't say that part out loud. Or is she smarter than all of us? No. Or is she smarter than all of us, Andrew? Is she sitting there saying,

1:06:47 Thomas: Hey, despite what Andrew Torrez likes to think, there aren't consequences for anything. So blah blah blah, it doesn't matter.

[1:06:53] So let's see if there are consequences. Just a brief Negatron appearance. Yeah, no, it's that's right, look, like that's that's where we need, she would definitely be in the evil lair with Negatron, like they'd be like, "Brilliant, like it's going exactly as we..." Kelly and Kelly and Conway kind of looks like she already looks like the evil sidekick in, you know, the evil female sidekick in all the 80s cartoons. Yeah, yeah, so like you look at her and you're like, "Don't you want to cover up your villain?" "Oh, no, this is just your regular face." "Oh, okay, okay, sorry, we're just monologuing right now." Um, so, uh, I, I think, right, I mean, I think

[1:07:33] that that's important that that we need to continue to sort of

1:07:36 Andrew: Make this, uh, make this case that you have, uh, somebody with an inner circle White House job who, when pressed on the fact that they are violating the law, their response is, "Blah, blah, blah, there aren't any consequences anymore." And look, there's only one way for there to be consequences, right? This, this

[1:07:55] report, right? Identifies that in the ordinary course what would happen is this employee would be fired, there would then be an an appeal to the Merit Systems Protection Board, which adjudicates the Hatch Act violations. And in the concluding paragraph, it notes the MSPB repeatedly has held that removal is the appropriate discipline when employees were warned and or had substantial knowledge before engaging in prohibited political activity. In accordance with MSPB precedent involving similar aggravating factors, the Office of Special Counsel respectfully

[1:08:28] requests Ms. Conway's removal from federal service. Now, what does that mean?

1:08:35 Andrew: Under the governing statute, right, 5 U.S.C. 7323 and 7326, which covers enforcement, those provisions are that is governed by a shall. It says the penalties, 7326 says, an employee who violates Section 7323 shall be subject to disciplinary action consisting of removal, reduction in grade, disbarment from federal employment for a period not to exceed five years, suspension or reprimand. I would certainly be comfortable arguing in court that there is no discretion here, that the OSC has determined that the appropriate penalty is removal and that if Donald Trump does not fire Kellyanne Conway,

[1:09:19] that you would have grounds to go to write a sternly worded letter. This is the sternly worded letter. But again, remember, I know you, but we've seen with McGahn and Barr that sternly worded letter then advanced to contempt and then advanced to lawsuit. And

[1:09:38] that that's where I would go with this next right from sternly worded letter to Trump. And then if Trump said, no, not going to do anything about it, then you bring a declaratory judgment lawsuit in the United States District Court for the District of Columbia. And you say, "Pursuant to 7326, I want a writ of mandamus evicting Kellyanne Conway from the White House." And

[1:10:03] that court can issue that writ. That court can issue a declaratory judgment. Let's issue that writ. Hurry up and issue that writ already. I would love to see it. So, um, right, we'll, we'll, we'll see how it breaks down, uh, but, uh, but, but, there you go. I think just like any good, you know, superhero

1:10:21 Thomas: Whatever, Negatron is winning in the short term, but then maybe there's a long, you know, a long arc in which Optimist Prime overcomes Negatron. We'll see. That would make a good story. Maybe that's how

[1:10:33] it'll work. Let's hope so. That, that would make for a really good story. All right. Well, now we need to go to patreon .com/law and thank our top patrons, our Hall of Famers, our all-time greats, who have a lot off of movies coming at them very soon, because we've got to make sure we're not late, Andrew. Very soon. It's coming at you.

[1:10:52] Very soon. What are they going to do? Blah, blah, blah. Are they going to write some kind of sternly worded letter to us? No, we actually do care what our patrons think. We are not Trump. Uh chugga chugga chugga chugga, Boutros Boutros-Ghali, it's legal, it's advice, it's not legal advice, ask your podcast if legal advice is right for you. Nice, two on the same lines right in a row. Uh, q anon is Peter Wigan, uh, so, sit, pro tip, the state can't charge you if you've already been on Jeopardy.

[1:11:23] uh add astra per aspera nate drex valerie galloway dragonfly.eco, books about nature, you're in the environment, reviews, and interviews, stuff and polls. Conrad Michaels, is the patriarchy, freedom now. Darth Mandy Pants, well-deserved patron, number 239. I wonder if Dustin even listens to the Patreon segment. Yeah, Dustin, you hear that? Better be listening. No, because you're not listening, you didn't hear that. The difference between Bernie or Biden matter not without the the Senate. I do agree, but I still can't stand Biden. Let me be

[1:11:59] a per... Here we go. Let me be... Well, I think they're missing a B, but I'm going to fill it out. Here we go.

[1:12:08] Let me be a perfect queer. I like being a perfect queer. Good. That's a good pride-related tie-in. That's great. Amunam Brewing, John Richards, 13th century Saxony gravel truck lawyer. Can we take dating advice from this podcast? Jennifer Kratch, Adam Costa, beautiful babs, the cure for ultra virus. Jay Aldenwalt, OA patrons cornering the injunction market since 2016. There you go. Conspiracy theories are all a giant circle derp. Stephen Balticatai Sandoval, a string of unpronounceable characters or a prescription drug name. Read Factfulness by Hans Rosling and move your cognitive bias noodle.

1:12:52 Thomas: Incorporating my uterus as a church to avoid anti-choice laws plus taxes. Detective Pikachu investigating obstruction for you. Ew. Alexa, double my Patreon support for opening arguments.

[1:13:05] That's awesome. I hope that works. Wait, go back and read that one again. Alexa, double my Patreon support for opening arguments. Excellent. Okay. John Bilderback. Hi, I'm Deckard Cain. You may remember me from such games as Diablo.

1:13:20 Thomas: Civilpoliticsradio.com. Friday's at 7 p.m. Eastern on Valley Free Radio. The Registry Matters Podcast. Incorrectly pronouncing Latin to avoid the accidental summoning of demons. It takes 30 seconds to vote at clownhornvoting.com. We need you. Yes, Honey Buns, Take It EV podcast, sustainable transportation for all. DataHack.com, business automation, making the menial automatic. Eric Alsman, Thomas Smith is my favorite attorney. Andrew's a close second. Payne's Trumpet, Michael C. Sampson, Trambelis, or Trambelis, whatever. Michael Cohen is a no-talent ass clown. Kiowa Valley exports for Australian red meat and craft beer. Let me be totally clear. I like being totally clear. The Getting Off Podcast, Chris Rowden, Milo Meadsong, the Halfling Bard and Frantic Bar Prepper and Sam Buck. Take it away, Andrew. And

[1:14:09] Thank you to Cosmo. You want redacted? I'll show you redacted. Blues. Join your labor union together.

1:14:15 Andrew: We bargain alone. We beg petition to add, "Are you a secret fascist?" Question to the census. Adopt a

[1:14:21] homeless '61 Corvair and paint it hot, hot pink. All right, if I had a buck for every time I didn't change my name, I'd have 85. Sorry if this pledge seems patronizing. No, definitely. Wait.

[1:14:33] Yeah, can't. No. James, the Right and Honorable Prince of Wales, with an H. Devin Nunez as the arch nemesis of the Taint Team is canon now, right? Anonymous Buttercup is the cutest

[1:14:46] law cat. Thomas's cat is a close second. Well, here's somebody that does not know you have 138 cats. Yeah, um, more like intellectual dork web dad joke, but made me laugh. David in Brooklyn, incoming transmission from junior missions operations manager Nermit Bundeloy. 8 6 7 5 3 0 9 is a prime 80s song, yes it is. How many licks to the center of a Tootsie Pop? A one, a two, redacted singing Bach all weekend at black downs Early Music projects word origins.org your source for legal terms from 13th century Saxony. Effing Robots at the Portland Main Fringe Festival. I, I, I kind of think I need to get out there, Fringe. Fringe Festival? Neat. We need to talk about Bill Barr's Sharpie Huffing Addiction. Muhammad Ali, Leroy Neiman, Marcus Liberty, Fernando's Hideaway Pizza Chance.

[1:15:38] I like the Fernando's Hideaway in the middle of that. That's great. Derek, Alexa, play "Impeach the President" by the Honey Drippers. Yeah, assuming you're done doubling the pledge. Yeah.

1:15:49 Andrew: I hated reading Joseph Campbell's Heartagensis in high school.

[1:15:53] Insert LGBTQ pride-related legal pun here. Okay. Big easy blasphemy a string of unpronounceable terwilligers that is that is fantastic the full moon is a part Heart of Uranus.

1:16:06 Andrew: Aaron Rabinowitz is my favorite philosopher. Aristotle is a close second. Ooh, Aristotle, really? I'm with you on Aaron as number one, but come on. Rhonda's Hovercraft is full of eels. Malika Chandler. Abacus Flinch. Volunteer with Camp Quest this summer at campquest.org. Soggy Pants. Transform Holdco more than meets the eye.

[1:16:25] Sam Donow. Piandre Taurus. There we go. There's the calf. Thomas Explains the Patreon Names is my new favorite segment.

1:16:35 Andrew: O.A. is not aware of the error of Ordonuarity Corporation.

[1:16:41] Sorry, I don't get the joke.

1:16:44 Andrew: Matthew Vernon, adopt a homeless pet and oppose declawing and ear docking. Aaron Graddy, Heather L., Jeremiah's fancy microwave

[1:16:50] emporium. Sakashita Fukasumi, fugitive, seeks room in embassy, must have good Wi-Fi. Ian and Allie, Zabby, Neil Gorsuch is a clown horning monster. Monster criminally negligent tree branch positioned ever so directly next to Eli Bosnick, what do we get, the 25 patrons don't, President Trump Bow is my new favorite typo, thanks Nudo, trying to unseat Conrad Michaels since 2014, T in the B days, well, you are real close my friend, but you have not unseated

[1:17:22] the number one, our all-time great, Conrad Michaels. All right. Right.

1:17:28 Thomas: Thank you, everybody. And of course, thank you, champion for life, Conrad Michaels. But maybe not. You

[1:17:34] can always unseat him. All right. It is time for TTTBE coming off a big. I don't know that I can do better than last week. I mean, sure, there's a little luck involved, but still.

[1:17:45] Hey, you wound up with the right answer. That's what matters at the end of the day. Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:17:55 Andrew: So here we go. The childhood home of a former U.S. president is part of a national park located in a city. The National Park Service entered into a contract with an independent antique collector to acquire items owned by residents of the city during the former president's lifetime. According to the contract, the collector purchases items and then sells them to the Park Service at at a price equal to the collector's cost plus a 10% commission. Purchases by antique collectors are ordinarily subject to the sales tax of the state in which the city is located. The collector has filed suit in state court to enjoin collection of the tax on these purchases for the Park Service, claiming that the sales tax is unconstitutional as applied to them. Should the state court issue the injunction?

1:18:44 Andrew: A, no, because as the purchaser of the antiques, the collector rather than the federal government is liable for the tax. B, no, because the suit is within the exclusive jurisdiction

[1:18:57] of the federal courts. C, yes, because the federal government is contractually obligated to pay the amount of the sales tax when the government covers the collector's cost of the antiques, or D, yes, because because under the Supremacy Clause, the federal program to acquire the antiques preempts the state sales tax on the purchase of these items.

[1:19:19] Wow. Well, this is a tough one. This is a tough one. So this is interesting. So factually, we've got a federal,

1:19:29 Thomas: Like National Park, wanting to kind of buy antiques from a collector. They've hired a contractor to buy antiques and sell them back to them. And so can the state collect

[1:19:42] a sales tax on that purchase of the antique okay so just in a vacuum, like forgetting everything else, how it seems like this should work to me, how it seems like this should work would be when the park service, uh, so it says the collector purchases items and sells them to the park service at a price equal to the collector's cost plus 10 commission. Uh, purchases is by antiques collectors, our organization, collector has filed suit. So it's the collector. So how this seems like it should work to me is the collector should just pay the sales tax and then the federal government or whatever, then whatever the agency is would just include that in part of the cost.

So like when you're refunding the collector plus the 10% commission, just include that state sales tax. That's what it seems like to me, but I don't know if there's some reason that that you can't, like the state can't collect a sales tax on even something like this. I don't know, could be, might be a question of constitutionality that I just, we haven't come across and I don't know anything about. So the collector has filed suit in state court to enjoin collection of the tax on these purchases for the park service, claiming that the sales tax is unconstitutional as applied to them. Should the state court issue the injunction? I feel like no, but let's go through. So no, because as the purchaser of the antiques, the

[1:21:08] collector rather than the federal government is liable for the tax. I think that's right. A is jumping out at me. So I think this probably is one of those questions that wants the lawyer, you know, hypothetical person who knows anything to think, oh, I know something about how the state can't collect a tax on the federal government. Government, but since this is like, I guess that's a critical question. When it's one step removed, you know, when it's a collector who then gets refunded by the federal government, is that the same thing? Right now I'm leaning toward A, no, but I'm not sure. B, no, because the suit is within the exclusive jurisdiction of the federal court.

So that's a, well, okay, that complicates stuff. So that's kind of sidestepping the issue and saying, well, Well, no, because the suit is within the exclusive jurisdiction of federal courts. That feels weird to me. I guess the state court would then just dismiss it, would just say, like, we don't have any say on this, so we're not even going to hear it, I guess. Yeah, all right. So that's plausible. That could be possible that that would be the answer. C, yes, because the federal government is contractually obligated to pay the amount of the sales tax when... Okay, so that's the other side of it.

So this is saying it's unconstitutional because the federal government does end up paying that amount of sales tax when the government covers the cost. So that's the other side of the question. So A and C are looking very good to me. D, yes, because under the Supremacy

1:22:35 Thomas: Clause, the federal program to acquire the antiques preempts the sales tax on the purchase of these items. Wow. Supremacy Clause. So I'm guessing it is the Supremacy Clause. Like, if I were to piece all this together, maybe the Supremacy Clause says that the states can't, you know, like, collect a tax on federal stuff or whatever. And so, actually, I mean, D is, this is a really difficult one. I could, this is one of those rare questions where I could see an argument for every single answer. My guess is going to be that if Andrew Seidel were here, he will have actually worked on the court case that this is talking about. I'm sure this happened. Like, this is probably some Supreme Court case where someone was like, yeah, I'm just doing this contract work for the government, and I shouldn't pay this sales tax, but blah, blah, blah. And so I have to guess what the Supreme Court found back in 1975 or something. I don't know. So, I

[1:23:26] don't know. The answer, short answer, I don't know. Know, but you know what? I'm going to go with, I feel like if that's the fact pattern, if that's what, I mean, A or D is looking probably best to me. You know, this is really, this is really weird though, because C and D, I'm having a very difficult time figuring out why it would be C or D. And this is one of those test taking things because yes, D is more descriptive. And then it it says, because under the supremacy clause. So I guess in that way, it's like more specific, but like functionally, I don't really see the difference because C is yes, because the federal government is contractually obligated to pay the amount of the sales tax when the government covers the collector's costs.

1:24:13 Thomas: That, I think, is true. I think that's all true that they are, because if the contract says they're equal to the collector's cost plus a 10% commission versus D, yes, because under the supremacy

[1:24:26] Clause, the federal program to acquire the antiques preempts the state sales tax on the purchase of these items. There's something with the wording there that does throw me off a little little bit. Like, the program to acquire them preempts the sales tax on the purchase of these items. This is impossible. You know, I'm going to go ahead and say, here's what I'm going to do. I'm going to zag when I said I would zig a little bit. I'm actually going to go with A. And I'm going to go with A because I'm going to think that this happened.

And then I'm going to go ahead and say, like, maybe in the facts of the case, it's going to be A because there's no guarantee that the federal government will end up purchasing a thing, like maybe they don't purchase some of it. So then therefore the collector will have not paid the tax for no reason. I don't know. I'm going to guess that there's some reason like that because C and D are so similar. I'm having a hard time even picking which one would be right. So I'm going to go to a no answer and hope it's A because I think that's the most logical no answer. All right. Okay. So that's my final answer. Wow. No, this is a very difficult one. This is one of the hardest ones I can remember, but that's my final answer all

[1:25:36] 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 hashtag TTTB,

1:25:43 Andrew: Include your guests your reasons therefore and we will pick a winner and shower that person with never ending fame

[1:25:49] and fortune, fame and fortune not guaranteed, all right, thanks for listening, thanks patrons, look out for that Law'd Awful Movies very

1:25:55 Thomas: Soon it's a great reason to hop on over to patreon.com/law it's a lot of fun you're gonna love

[1:26:01] it, and we we will see you on Tuesday. You betrayed the law! Law!

[1:26:10] 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.

[1:26:59] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.

[1:27:08] Opening Arguments is produced with the assistance of our editor, Brian Ziegenhagen, our production assistant, Ashley Smith, and our researcher, Deborah Smith.

1:27:16 Andrew: Special thanks to Teresa Gomez and the entire OA Wiki team. Follow them at at OA Wiki. And 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. While Scott Governor was governor of Wisconsin.

[1:27:37] Sorry. While Scott Walker was governor of Wisconsin. Scott Governor was Walker of Wisconsin.