OA402: Good News from SCOTUS!

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 402. I'm Thomas Smith. That's Andrew Torrez. How you doing, Andrew?

0:01:25 Andrew: I'm fantastic Thomas, I may never sleep again, but I'm just fantastic, you know, lots Of, yeah, and we were laughing two days ago about, you know, prep, because it was like, "Oh, there are a few stories to discuss this week." There are few more thanks to the Supreme Court this morning, so,

0:01:28 Thomas: Yeah, lots o' news today.

0:01:44 Thomas: Yeah, this was weird. So, you know, there's always the thing where I'm on the West Coast, so everything happens, you know, it's a little, little earlier for, for me, and so I'm never up. Plus, you know, I'm a night person, so I sleep in a little bit. So I wake up and I cannot not even, I cannot wait for you to explain what's going on in these tax cases or they are, because I literally had two sets of headlines from New York Times and Washington Post that each seemed to contradict each other. And I, I like two New York times was like, can't get ahold of Trump's documents. Good news can get a hold of Trump documents. And then the Washington Post did the same thing. And so I assume it's just the two different cases going in two different ways, but I'm all kinds of confused. And that's why I love listening to the opening arguments podcast Fridays that yeah. So I'm excited for you to explain that because I do not know what's going on.

0:02:27 Andrew: Yeah, I think there are lot of really terrible takes going on right now, and I am excited to break down the Supreme Court's rulings in the two Trump tax cases, Trump versus Vance, Trump versus Mazars. Well, I think we'll do that kind of right out of the box.

0:02:49 Thomas: Awesome. Well, I know we also wanted to tease the fact that Andrew Seidel back on the show for Tuesday. We're so excited to have him again. I think it's going to be an angry saddle.

0:03:01 Andrew: I have it on good authority that he is he is not a well clown right now. So but yeah, we're going to be discussing the Supreme Courts religion cases. Lots of people have asked us about this. And, you know, there's no better expert than Andrew Seidel from the FFRF. And we're going to break down Espinosa, the Little Sisters of the Poor case, like all all of the religion cases that have come out in the past couple of weeks that you've wanted a deep dive about.

0:03:28 Thomas: They were all bad. I'm pretty sure.

0:03:30 Andrew: They were. Yeah.

0:03:31 Thomas: All bad, I could be wrong, but, uh, okay.

0:03:32 Andrew: Yeah, no, you're not. You are not wrong in any way whatsoever.

0:03:35 Thomas: They didn't seem good. Very frustrating, but let's get to our first segment. Oh, by the way, we're also going to just to give more teasers for today. We're also gonna talk about the ICE horrendous ICE rules that they're trying to do with colleges. And, uh, I want to know, I asked Andrew to make sure to have this answer. I wanna know if the one weird trick that schools are going to try is going to work. We'll see, we'll see how that goes. And then Andrew has a something called a wild card segment in that I do not think we're getting to, I don't even know why that was must have just been an inside joke for me that you type that

0:03:36 Andrew: Nope.

0:04:02 Andrew: There's zero there's zero chance. Yeah I I might as well say right now. Yeah.

0:04:08 Thomas: All right, let's get to our first segment. Andrew corrects all the horrible news coverage of these cases here.

0:04:09 Andrew: Yeah.

0:04:18 Clip: The law breaking down

0:04:25 Thomas: So what happened, do we get Trump's documents or do we not get, I don't know. What happened?

0:04:31 Andrew: Look, we we do. So here's the way to think about this. And I was saying this, you know, right as we were about to record. The press reports right now are very much going through what the press reports on the left went through during the 2018 midterm elections. Right. Right. And I was really, really proud of the fact that, like, we recorded the very next day and we said, these are great results. Right. Like, yes, would have been super great to see Ted Cruz lose. But like we did the most important thing, which was take back the house, which Was the achievable thing that we could have done. Right. And, you know, there were individual bad was a God.

You know, Florida was a nightmare. Mayor. There is almost no relief that I could imagine the Supreme Court awarding in the two Trump tax cases that would be better than what we got. So I'm to break both of those down. I'm gonna talk about also the immediate implications. And in fact, let's just preview that out right now, right? Lots of liberal sources are saying the president won because we're not going to get his tax returns before the November election. There are two things that you need to know about with respect to that. The first is, as of 9 a.m. this morning, I thought it was entirely possible that, A, John Roberts might relist these two cases for the fall term, right?

Thus, 100% putting them out of reach before the 2020 election. And that, B, if they were considered in this term that we could, uh, at minimum lose the Mazars case, right, that is the, uh, House congressional subpoenas, those arguments aren't good, um, and as you will see, we won that case, we won it seven two, um, but go back and if you see, you know, liberal, liberal legal analysts, particularly on Twitter, talking about how this means like it's all going to be buried like that, do a read of their July 8th tweets. Right. Because a great many of these sources were saying John Roberts is going to John Roberts.

He's going to split the baby. We're going to win in Vance. So the New York district attorney, Cyrus Vance, is going to get Trump's taxes from Mazars, but we're going to lose in the Mazars Deutsche Bank cases and the House Judiciary Committee is not going to be able to enforce those subpoenas.

0:05:30 Thomas: Hmm.

0:07:14 Andrew: Is that was not the result. So, you know, particularly against the background, it was not. Both cases were 7-2 in favor of disclosure, right? You know, which I don't think anybody was predicting that. Certainly not me. And we're going to break down each of those. And I want to tell From a practical perspective, here's the way that I would handicap it. There is a 75 percent chance, maybe greater, that Cyrus Vance gets Donald Trump's taxes in enough time to impanel a grand jury and possibly hand down an indictment against the president.

0:07:20 Thomas: Wait, it wasn't? Oh, oh, I see what you're saying. Yeah.

0:08:01 Thomas: Whoa.

0:08:01 Andrew: Now, mind you, that will be stayed. You can't go haul off a sitting president in handcuffs. It would be stayed until January of 2021. But I would say the odds are not just better than than than not, but significant that Cyrus Vance gets those documents and is able to impanel a grand jury, which would then if the reporting in The New York Times is to be believed, which could then hand down an indictment of Donald Trump before the election. So

0:08:33 Thomas: So I'm confused. Apologies for this, but I thought we lost one and won one of these cases.

0:08:38 Andrew: No, we won both cases. Both cases were seven to they are totally messing this up.

0:08:41 Thomas: What? Why? So then they really are messing this up because the alert told me one

0:08:47 Andrew: Yeah, we're

0:08:47 Thomas: Of the cases said we're not going to get the documents and the other said we are going to give the documents.

0:08:50 Andrew: Here's. So let's go into let's get into that right now. OK, The misreporting is coming in the Trump versus Mazars case. Right. So let's deal with that one first, even though that was chronologically decided later by about 10 minutes. The Mazars case was about the subpoenas directed to Mazars LLP, that's Trump's accounting firm, and Deutsche Bank regarding Trump's taxes, requiring that those entities turn over Trump's finances so that the House could use them as the basis for drafting legislation requiring presidential candidates to disclose their taxes. And also potentially for investigation into the impeachment, into Trump's actual wrongdoing.

0:08:54 Thomas: Okay.

0:09:42 Andrew: And Trump's argument in this case, in the Mazars case, was that's not a valid legislative purpose. Right. That was Naomi Rao's dissent at the D.C. circuit. And and one that it was entirely plausible could win, could have won five votes at the Supreme Court. It.

0:10:05 Thomas: Not because it's right, but just because the Supreme Court.

0:10:07 Andrew: Yeah, because. Right. Because it's the Supreme court, because that that's how they've been ruling. Right? Right. Did not. It won exactly two votes. Right. It won Sam Alito, who has now rested, rested the crown of the howleriest of the Howler Monkeys. He's he's king of Howler Monkey Mountain and Clarence Thomas. And that's it. And the other seven justices said, you know what? But it's perfectly valid for the House Judiciary Committee to issue a subpoena to the president of the United States for information in connection with legitimate House oversight functions. And where this is coming out as a, quote, loss has to do with how people are reading the subsequent procedural history. And again, I would just ask these people, like, what did you think was going to happen?

0:10:19 Thomas: Clarence Thomas.

0:11:07 Andrew: Right. Like when you win a case with a factual component, it gets remanded back down to the district court. Right. Because the Supreme Court doesn't decide on facts and stuff. Right, they decide on the law. So, when people are saying we're definitely not going to get taxes released to the House Judiciary, would say there's probably only about a 5% chance that that comes in before November. So I think that more likely than not, the process is going to play out and it is going to take some time. But there's a pathway in which this goes back to the district court for the District of Columbia, and it holds an expedited hearing and issues a ruling in late August.

And once that ruling, Because of the reasons that I'm about to explain to you, once that ruling is handed down, it, the onus will be on Donald Trump to, because you get to appeal rulings on the merits, but he will have to move to stay enforcement of the court's judgment enforcing the subpoenas. And he could lose on that motion to stay, and here's why, because in the Mazars case, and again, remember, this got seven votes, right? This is a a broad sweeping, truly, by, this is one of the, the only cases that it's fair to say reflects bipartisan consensus on the Supreme

0:12:32 Andrew: Court, right?

0:12:32 Thomas: Yeah, And I was just paused for a second because maybe a note of optimism, slight optimism in this dark time, is that still the two most idiotic justices are not the two most recent ones that Trump got to appoint. That's kind of kind of encouraging. Yeah.

0:12:46 Andrew: That's right. That is absolutely correct. Yeah, the Mazar's decision, uh, you can go to page 19, remands down to the district court, and it says, hey, you need to take a look at the subpoenas that are issued by the House Judiciary Committee, and you have to subject them to a four-part test. That four-part test is, first, you should assert, you should assess whether the legislative purpose that is asserted by the House of Representatives warrants the significant step of involving the president and his papers, right? Congress may not rely on the president's information if other sources could reasonably provide Congress with the information it needs in light of that particular legislative objective. Okay, well, Trump's not too hard to pass that test, right, and again, like, that's a good principle to ask, right.

0:13:37 Andrew: Like it, I do not want, you know, the Republican Congress in 2023, if there is such a thing, like issuing subpoenas for, you know, Joe Biden's dental records to prove that he uses those to broadcast secret messages from QAnon. Right. And and and you want to have some protection on that. Right. So first, is there a legitimate legislative purpose that must involve the president? Right, second, the subpoena should be, quote, "no broader than reasonably necessary," end of quote, that's a standard judicial term of art that's applicable whenever you have a third party subpoenas, so again, right, criterion third, this says courts should be attentive to the nature of the evidence offered by Congress to establish that the subpena advances a valid legislative. The more detailed and substantial the evidence of Congress's legislative purpose, the better.

0:14:36 Andrew: This is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the presidency. In such cases, it is, quote, "impossible to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the president's information will advance its consideration of possible legislation." Then it says fourth, and this is where, you know, if you were Jay Sekulow, you might want to try and stack your chips, um, and and the court knows this, so these these opinions are both written by John Roberts, and they are both essentially like, to the extent that they give advice to Jay Sekulow, right, it's kind of like, you know, the the the really really small kid on the T-ball team that, you know, you like help on up to the tee and you give him a couple of extra swings and, you know, you stand behind him or whatever, and this is John Roberts on. Okay.

0:15:35 Andrew: Okay, J buddy, like I know you're gonna litigate this, and and here's how you do it. He says courts should be careful to assess the burdens imposed on the president by subpoena, but then, in the, like, helping J swing the bat, says we have held that burdens on the president's time and attention stemming from judicial process and legislation without more generally do not cross constitutional lines. John Roberts had to say that because pretty much Sekulow's entire argument was, come on, president's super busy right now and, like, you know, requiring him to, like, do stuff would interfere with his, you know, busy golfing schedule or what have you, um, and the Supreme Court said, yeah, that that's not good enough.

0:16:22 Andrew: They do then say, burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the president and incentives to use subpoenas for political advantage. That's true. Again, just remember what the Tea Party caucus would do with, you know, a broad ranging opinion here. And then they added, and this is sort of truly truly surprising for a Roberts opinion that garnered the signatures of Gorsuch and Cavanaugh, considerations may be pertinent as well. One case every two centuries does not afford enough experience for an exhaustive list. Um, I like, I, I, you heard me chuckle at that, rig, because that is the kind of thing that a reasonable jurist applying the ordinary principles of law would say. Right.

0:17:13 Andrew: Like, you know, remember, he's writing this to hardcore textualists and originalists who think that, like, yeah, one case from 1789 is just fine. Like, no, no, this is like, come on. Like, we we don't have an awful lot of guidance here. We're in sort of new waters. And and then it says, when Congress seeks information needed for intelligent legislative action, it unquestionably remains the duty of all citizens to cooperate. Robbery. Um, and then, you know, it goes on to say, you know, we're still mindful of special powers. So that's how this case is going back to the district court. This case has going back to the court, uh, for the trial judge to say, do the congressional subpoenas meet this four-part test, and here's the crucial part that, as far as I know, I'm the only person that is making this argument. A couple of other people have agreed with my conclusions.

0:18:08 Andrew: Jill Wine Banks is out in front. I think people have said that Neil Katyal on MSNBC has said the same thing. You know, I kind of went back and forth with our buddy Randall Eliason, and he didn't reply to this point, so I hope that I've convinced him on this. If you're a naysayer, if you're on the side of, oh, we lost this decision because the Supreme Court crafted this four point test and then they sent it back. And now the the there's going to be, you know, a huge trial on the merits. Even after that decision comes out, it will get appealed to the D.C. Circuit and that will move for reconsideration on Bonk and that we'll go back up to the Supreme Courts. And, you know, there's no way that we're going to get that in four months. That's true. There's no way we're gonna get that In four months, but we don't need to get that.

0:18:58 Andrew: All we need to get is for the district court to rule on the merits that the subpoenas are enforceable, that they meet the Supreme Court's four part test. And then for the DC Circuit, not to stay enforcement of that, that judgment pending appeal. That's all you need. Now, the argument for why they should stay enforcement of the judgment pending appeal is the political consequence, right, is the president might not get reelected and the case might get mooted. And what, but but that's not typically the kind of reason that you give for mooting a case, right? Right. Like, it doesn't, that doesn't move the case from a standing point. Right.

0:19:43 Andrew: Like this is still the president will still be subject to the subpoena whether he is in office or not. Right. So that that's not a fantastic reason for staying the effect of the judgment that, you know, yeah, that that they're going to get the information. Is it irreparable harm? It certainly would be irreparable arm in the sense that once you have information, it's kind of hard to put the genie back in the bottle. All.

But that's going to be outweighed by the fact that the judicial determination, you heard me go through those four steps. In each of those four step, the Supreme Court went out of its way to say that the courts are evaluating factual considerations. And you know from having done the show now for four years, The significance of the court emphasizing that these are fact-based inquiries, right, because when you review what a district court does on the law, you review, you review the law de novo, but you review facts with extreme deference to the fact finding done by the trial court. This is why I said, look, five percent, right, like, it, there is, there are a large group of possibilities in which the trial court takes too long, uh, the the D.C. Circuit grants a stay, the Supreme Court grants an administrative stay, you know, something like that. Like, yes, there are a lot of grounds in which the House does not get this information from Deutsche Bank or Mazars before the election. But but there's a path in which they do.

0:21:15 Andrew: Right. There's a pathway. There in which there The district court expedites the materials. Mazars turns because, again, remember, like we're now we're outside of talking about Donald Trump and his inner circle of cronies. Right. We're talking about Deutsche Bank already under heightened scrutiny by the U.S. government. And Mazar's LLP, a global, you know, multi hundred thousand accountant firm worth billions of dollars. And if you look at it and say, you mean even Deutsche Bank is obstructionist as they've been. Like you look at it and go, all right, like kind of looks like Trump's going down in flames. Like, I don't know how much we want to piss them off.

0:21:31 Thomas: Look, this argument already was stupid that Trump is too busy, but isn't the fact that we're talking about Mazars and Deutsche Bank, wouldn't, isn't Trump doing more work by fighting this than he would by just letting these other companies give the files or whatever? It's like, sorry, I don't have time for Deutsche Bank to give you my files. What?

0:22:17 Andrew: Yes. Yeah, that's right. And, and, and we're going to talk about that in more detail in the, when, as we move to the Vance case. But what I want to use as the transition to the Vance case, because this is my very, very favorite thing about today, and it is my piece of advice for the House lawyers who are going to be relitigating the case back at the trial court level in Mazars. OK, it is this: you are arguing how to apply the four point test, person who has already done the hard work for you and school and scored an own goal in such convincing fashion that I leave it to Thomas to craft the ideal hockey analogy right here, is king of the howler monkeys himself.

0:23:21 Andrew: Samuel Alito, who writes in an effort to, like, display how, you know, sarcastically stupid he thinks the the Vance decision is. This is page 21 of his dissent. It's, it's almost all the way at the bottom of the of the entire 68 page document. Alito says, "Now the court says that a president can," uh and then he uses sarcasm italics, "can argue that compliance with a particular subpoena would impede his constitutional duties," emphasis added, right, to let you know that he was the one that put in the sarcasm metallics. "Um, but under the court's opinions in this case and Mazars, it is not easy to see how such an argument could prevail." Veil.

0:24:07 Andrew: "The court makes clear that any stigma or damage to a president's reputation does not count. And in Mazars, the court states that burdens on the president's time and attention are generally not of constitutional concern. Elsewhere in its opinion of this case, the Court takes the position that when a president s non-official records are subpoenaed, his treatment should be little different from that of any other subpoener recipient.

The most that this Court holds out is the possibility that there might be some unspecified extraordinary circumstances under which a president might obtain relief." If that is not block quoted by the House Democrats in their argument to the district court in Mazars, then they're not doing their job right, like, because that, that is Sam Alito being like, I, I don't understand, it's now it's not like how am I, I supposed to protect Donald Trump anymore, thanks to my idiot brothers on the Supreme Court that I thought we were supposed to have the like secret handshake down about ixnay on the ump tray. Um, it's just, uh, it's it's such a, such a spectacular concession that, uh, that that that there isn't additional fact-finding to do and that the court could very easily in both cases turn around and go, yep, turn it over, right?

0:25:21 Thomas: I'm just so confused and I apologies for this, but like I'm looking at my, you know, on the coverage right now that has led me to be confused. Vox, who I normally trust, says, Mazars, what does the Supreme Court ruling on Trump and Mazars really mean? It says, "By the time Trump's records become available, he will almost certainly either be an ex-president or firmly entrenched in his second term. In short, it's a powerful victory for Trump." And the other part is the court holds that there are special rules for the president. So, what gives? Yeah.

0:25:22 Andrew: Yeah. It So let's, let's move, let me first re-explain Mazar, because, because there's a portion of that that's almost correct, right, and that is, in Mazars the court says that there is a role for the Supreme Court in adjudicating a congressional, congressional subpoena directed at a president asserting a legislative privilege, right? Asserting a legislative action, right. And I want to say, right, first, remember that we discussed the Naomi Rao-led opinion in the D.C. Circuit that was incomprehensible, that said, "Nope, sorry, these are non-justiciable," right? Like, oh, yeah, yeah.

0:26:36 Andrew: Congress wants a subpoena and Don McGahn thinks the executive privilege coverage, like, who are we at the courts to adjudicate such a thing, right? Like, and, and we laughed and we said, like, well, because sub peanut, right? Like, it, you know, we went through and we're like, if the judiciary is not there to intermediate between the executive branch and the legislative branch, like, then what the hell are they there for, right?

0:26:58 Thomas: Yeah.

0:26:58 Andrew: Like, like, that's the whole, like, I'm just a bit, right, like, you go back to, you know, Schoolhouse Rock, like, that, that, that, that's, that's your job, man. So, A, I think that this will influence the McGahn case. I think it absolutely has a bearing on the on the assertions being made by McGahn and that were prominent in the Rao opinion, which is absolutely going to be overturned by the en banc D.C. Circuit. They have yet to rule on that, but they may have been holding that case pending these subpoena cases. That's possibility. And B, let's tackle that Vox sentence. Yes, the president is different than a normal person when it comes to a congressional subpoena, right?

0:27:44 Andrew: And the brilliance of the Mazars' opinion is that it is designed, I mean, it is truly like the kind of Supreme Court opinion we used to see 30 years ago, right, like it, it's not sitting there going, like, "Oh, well, you know, the liberals are on this side because it's going to stick it to Trump and the conservatives are on the side to protect Donald Trump," right? It is both sides kind of looking at it going, "This is not, our politics are broken right now." And if you think that subpoena issued to Donald Trump, uh, by Democrats right now is all there's ever going to be, then, you know, you have been, been paying attention to Mitch McConnell, right? Like, you haven't been paying attention to the House Freedom Caucus, right? Like, like, yeah.

0:28:28 Thomas: I was wondering how much of this could be the more sensible right-wing justices on the court being like, I don't think we're gonna have a Republican president next term, so like Maybe

0:28:38 Andrew: Or Or maybe ever Again, right? Like, uh, you know, who knows, but, but that's right, like, and again, you, you have to construct rules that, that make sense out of that. Now, the rule that make, that would have made no sense, is the rule that the D.C. Circuit temporarily adopted, uh, and that, uh, that Trump was urging, encouraging, particularly as we, as we move over to the Vance case, which is absolute executive immunity, right?

I'm the president, I'm immune from process, it doesn't count, I'm special, and there's nothing you can do about it, or if there is something you can doing about it, uh, you, there's, you could, you can only do something about it in the abstract. And if you think I'm being facetious on that, I want to read you from Clarence Thomas's descent in the The Vance case, um, because this is, this is a truly shocking thing to say, and I'm going to tell you, uh, it's truly shocking on face, uh, and then it becomes 100% evidence of absolute partisan hackery. We get Cory Robin to come back. You cannot defend Clarence Thomas saying the following, quote, "I agree with the majority that the president is not entitled to absolute immunity from," sarcasm italics, "issuance of the subpoena, but he may be entitled to relief against its," sarcasm italics, "enforcement." Enforcement, it, yes, seriously, that's what they're saying. Clarence Thomas is saying, yeah, sure, like, you could issue a subpoena all you want, but like

0:28:39 Thomas: Yeah

0:30:16 Andrew: I mean you can't enforce it now that's a stupid thing to say it is an indefensibly stupid thing to saying when 23 years earlier you Clarenced Thomas joined the majority in Clinton versus Jones that enforced a subpena against Bill Clinton. These concerns were entirely absent, right? That, oh, well, the president should be entitled to relief from enforcement because of separation. They were nowhere. Clarence Thomas did not concur in part and dissent in part in Clinton v. Jones.

0:30:16 Thomas: And That's even including the fact that, you know, usually sexual predators stick together, but like, he, that's how partisan, uh, Clarence Thomas is. This partisanship transcends other Bonds Stronger

0:31:02 Andrew: And so if You're sitting there looking and going, "I want a Supreme Court opinion that most sticks it to Donald Trump," I would, I would just say, like, go back in time. Right. Like, if that was probably, that those kinds of voices were probably voices that were critical of the Clinton versus Jones opinion, too. Right. And again, all you have to do is just emotively put yourself on the other side. Right. Like, it was, I mean, that was truly a politically motivated witch hunt that went so far afield of its original mission, that was designed to bring down the Clinton presidency, and everything was pretextual about it. But, but, but I got to tell you, like, I'm super glad that the court in a bipartisan way said, "Yeah, like presidents don't get to like pretend that lawsuits don't happen because you're president."

0:31:58 Andrew: Right. You don't gets to say like, oh, well, you know, I am the executive branch and the executive branches on base and the floor is lava. And you the judiciary can't do anything about it. Like we didn't say that you 25 years ago. And they they reaffirmed that principle today. Day. And that, by the way, is the summary. I should say, obviously, do a full hour on this. We could do two hours. We can do four. The reason why is as we move from the finish on the Mazars case. So let me summarize Mazars. Mazars was the House Committee on the Judiciary issued subpoenas to third parties requesting documents, including Trump's tax returns, for the purpose of crafting legislation to require presidents to release their tax returns so as to enforce the congressional prohibitions on emoluments, right?

0:32:51 Andrew: That was the stated reason given in those subpoenas. The president's argument in that case was that they did not serve a valid legislative legislative purpose and, as a larger principle, that the president enjoyed absolute immunity and, you know, the courts lack the power to enforce subpoenas like this. And the Supreme Court completely rejected those arguments. They said that Congress is entitled to subpoena the president, that we should be aware that that has political implications, and that courts should use a fact intensive four part test. And that, by the way, not just a four part test, but, you know, one case every two centuries probably does not afford enough experience for an exhaustive list.

0:33:38 Andrew: Right. So if something is obviously pretextual in, you know, two years against Joe Biden, a court could say, you know, even if it doesn't necessarily meet the first four criteria, could use that, you know, sort of catch all provision and say, my factual determination is that this is not a valid legislative privilege. It's exactly the right result in terms of timing. Right. I agree with you, man. Like, I would love I would love to tell you that we will go down, it will be expedited, and that the House will get their documents, you know, in September. I can't tell you you that, but but yesterday I thought that chance was zero. Right. Today it's not zero. And and more importantly, the Supreme Court set rules that constrain this president and every president hereafter. And and that's a good thing. So that's Mazars.

0:34:36 Andrew: Vance is the case that everybody thought was the stronger case, right? So lots of Stronger for the forces of of light, right, that in Terms of being able to compel the subpoena, right?

0:34:42 Thomas: For Who, oh Okay, yeah. Stronger For elves And wizards

0:34:50 Andrew: Um Yeah Yeah High elves only, not dark elves. Yeah, um, This was uh the New York District Attorney Cyrus Cyrus Vance uh had subpoened Deutsche Bank and Mazar's for Trump's taxes, and we don't entirely know why, right, but we can strongly suspect that they relate to two pieces of publicly available information. The first is testimony by Michael Cohen related to how Donald Trump had uh uh fraudulently adjusted, in Michael Cohen's view, the value of real estate, depending on whether he was appraising it for tax purposes, where he would value it as cheaply as possible, or for loan purposes with Deutsche Bank, where you would value as expansively as possible.

0:34:52 Thomas: Yeah So

0:35:44 Andrew: Right. And so that's part of the documents, in addition to just the taxes that that Vance was seeking from from Deutsche Bank. Right. If you if you file your taxes on Monday and say this piece of property is worth twenty eight million dollars, and then you file a loan application on Tuesday that says it's worth nine hundred million dollars, that's pretty strong evidence of criminal fraud.

0:36:07 Thomas: Quick point of clarification, because I'm sure some people were confused like me, we're now talking about Trump v. Vance, but Vance Had Tried To get stuff from Mazar's, okay.

0:36:14 Andrew: Correct. We have now moved to Trump v. Vance. Yes, I know.

0:36:20 Thomas: Yeah It's A little

0:36:20 Andrew: Yeah, it's it's the same group of operative players.

0:36:22 Thomas: Gotcha Just a different person trying to get access to the Mazarz records, okay.

0:36:23 Andrew: Right. Exactly right. Was also I don't know if you if you have read this. That was exceptional reporting done in The New York Times. One of my debaters actually used this article, it's super lengthy article, and used multiple citations from it at debate nationals this year, which were virtual, they were held online. But that that piece documents really comprehensively that the Trump family used mechanisms ranging from creative tax classification to outright fraud to take Fred Trump's money and put it in the pockets of Donald Trump to build the contemporary Trump empire.

0:37:15 Andrew: Higher. You put those two pieces together and we have strong reasons to believe. And again, right, people are innocent until proven guilty. With Donald Trump, it's hard to say that without laughing. But we have strongly reasoned to believe that Donald Trump has committed criminal tax fraud. And the question was, is Cy Vance going to get the evidence necessary to make that case? And the answer now is yes. And and not only is he going to get it, but he's going to get it by August. The important thing, this is where your sources are, you know, who are saying this is a split win that are viewing this case the wrong way. This is this is where they have a point, right, which is when Vance gets Trump's tax returns, those Those will be subject to grand jury proceedings. Right. Those are subpoenas issued by a grand jury and they are confident, as we know from the redactions from the Mueller report.

0:37:26 Thomas: Uh

0:38:15 Andrew: Right. Grand jury material is confidential. So Cy Vance will not be able to leak those documents when he receives them. It

0:38:23 Thomas: We can't Do Any sort of immunity trick, or they

0:38:26 Andrew: It now, when Vance has them, could the House Judiciary Committee

0:38:30 Thomas: Fall out of the back of the truck, maybe, and someone Picks Them Up and

0:38:33 Andrew: Well No, because He's Not, he's Not going to violate the the rules of legal ethics. But

0:38:36 Thomas: Oh I Left them on the company printer By accident, whoops. Oh,

0:38:40 Andrew: Here's What could happen, right, the House could subpoena Sy Vance to turn them over, right, I mean, like, they're a whole Whole There are a whole bunch of different Things, right.

0:38:50 Thomas: That's interesting. So Then Can He just turn them over, or is there a thing where then Trump gets to be like, hey, I also, I'm going to take time suing this guy to not turn them over, because I don't have time to Have this guy give you my records, but in All all seriousness, would Trump be able to sue for Vance to not turn those over, or can Vance at that point just turn them over?

0:39:02 Andrew: Like Yeah What What Vance would, what what what Trump would have to do is what he's done in the existing cases to date, right, which is move to intervene and for an injunction blocking them. But when you comply with a facially valid subpoena, that is a defense, right, against any kind of criminal wrongdoing. Right. So in other words, part of the reason that's worked to date is that everybody who has copies of the relevant documents is either a hardcore Trump toady or somebody who is subservient to Trump and, you know, not willing to take him on, i.e., you know, that the general - and look, if I were the general counsel of Mazars, I would make that same recommendation.

0:40:05 Andrew: If you're acting to protect the best interests of your multinational corporation, having a reputation for, yeah, sure, we turn over even the president's record, that's not real great for business. Right. So so the dynamics change the minute this is out of the back. And that's why you see the administration fighting so hard to make sure that the things that they don't want people to see do not get into the hands of people who are willing to take Trump on. On. Right. It's it's why they're fighting so hard to make sure that the House does not get the unredacted, the fully unredactic Mueller reports. Right, that that Judge Reggie Walton has, that he's viewed in camera. Right, so yeah,

0:40:51 Thomas: Yeah. But I thought a total, total, uh, exoneration. So shouldn't we want to get ahold of that?

0:40:54 Andrew: You'd Think, right. Yeah, so quickly to summarize, so that's so Cy Vance issued subpoena in panel to grand jury, they issued subpenas for various bank records, and same situation, situation, Mazars, Deutsche Bank said, look, we need guidance, right? You have what looks like a valid subpoena issued here by a grand jury, and we want to comply with the law.

On the other hand, the president of the United States has asserted executive immunity, which says we shouldn't comply with it, and мы just don't know what to do. And so the position they took in this litigation was, hey, man, just tell us what to doing, we'll do it. And now the Supreme Court has said, and and the ruling in Trump v. Vance is that the only defenses that Donald Trump may raise, this gets remanded to But again, because these are cases, because they're fact finding to do, the only defenses that Donald Trump has are the same defenses as any other citizen to a subpoena issued by a grand jury. Right. And good, like, he should have less, right, like it his argument this entire time at oral argument was absolute executive privilege. And the Supreme Court said not only do you not have absolute executive, but when it comes to a subpoena issued in a criminal case, you have no privileges beyond that of an ordinary American citizen, isn't and by the way, like, those defenses suck, right, like I I shouldn't have to tell you that, right, like if you get a subpoena

0:42:27 Andrew: Requiring You To Testify

0:42:27 Thomas: Yeah, I get subpoenaed all the time. I never get out of it.

0:42:29 Andrew: Yeah Yeah Yeah, right, and same thing applies here, right, in terms of when you go to the court and petition this will be the U.S. District Court for the Southern District of New York and you petition the court for that, you know, one of of the like really narrow exceptions to the subpoena. That's a fact intensive inquiry, and when the judge says nope, uh, you're not you are 100... I feel I don't say 100, you never say 100 in the law I am 90 confident that the judge will uphold that, the conjunction of this, right, think of the high level of probabilities to have all of these things occur, but but but again I feel like this is what it will happen. The judge will convene a hearing.

0:43:16 Andrew: Trump will raise stupid arguments. The judge will say, OK, we've heard your arguments. Not good. Deutsche Bank, Mazars, we're going to we're gonna require you to turn over the information requested by the subpoena. Trump will appeal to the Second Circuit, and the Second Circuit will decline to stay enforcement, enforcement of the judgment pending appeal. Uh, he may then appeal to the Supreme Court, and the Supreme Court, I think, will deny enforcement ofthe judgment pendingappeal because consistent with this opinion, you would like they would never you would just say, like, no, sorry, like, we issue subpoenas all the time.

The fact that this is the president, the opinion tells you, you evaluate this as if it were any other person, and we would never ever grant cert to intervene to stop, you know, a court from issuing a subpoena against somebody. So, you know, too bad, turn over the documents. And and the courts will emphasize, right, that grand jury materials are secret, so so there's no irreparable harm. Like, it's just there's... there's nothing, in my view and again, the last four years have taught me don't say a hundred percent is very difficult for me to imagine how Cy Vance does not have in his possession the records subpoenaed from Deutsche Bank and Mazars with, you know, they made with some exceptions, but but materially important, valuable records regarding Donald Trump's finances within two months by

0:44:51 Andrew: The end of August. Yeah, I agree, I agree, I agree, the wheels of justice churn slowly, my friend, as you well know.

0:44:51 Thomas: What, what, hurry up, take, go faster. Two months. Oh, I wasn't sure if that was like a bureaucratic, like the company's going to drag its feet or something.

0:45:02 Andrew: I believe I could be wrong on this, um, I'm here to analyze the law, not, you know, what I think I saw on Twitter but I think both companies have said we're prepared to comply with the subpoena if, if the court orders orders us to. Yeah, I think, like, they've got those documents segregated and prepared, and and and it would be that would be a real tough argument to make. I know, because I've had to do this before, like when I was at Covington and Burling, and, like, you know, I was sent in as a, you know, fifth year associate, like, hey, you've always wanted to argue a motion, right? Well, why don't you go argue, you know, the the other side of this motion to compel. And, you know, and I had to go in and say, well, we're gonna need an extra six months to produce, and you know, I've had the judge look at me and say, "Mr. Torres, how many, many lawyers are in your firm?" And, you know, the answer then was 335, uh, the answer now is right several thousand, right. Like, it's it's but I

0:45:15 Thomas: Okay. Yeah. Task

0:45:56 Andrew: Had to look at yeah, it

0:45:57 Thomas: One of them to get this to. Yeah, so I want to make sure we get to our main story today. So but does that settle it for Trump v. Vance? So the top top line is you think he's going be able to get these documents and then who knows from there, we might be able to get home sealed

0:46:03 Andrew: Was. Yes, yes, we do have to get to that, that settles it for Trump v. Vance, and and and then the grand jury may hand down an indictment, and it can indict Donald Trump in one of two ways, right? Right. And again, see a sealed indictment that is not released until January of 2021. Or he could be indicted as a as a John Doe. Right. It could be he could being indicted has an unnamed co-conspirator along with, you know, Fred Trump, the estate of Fred Trump or whatever. And Donald Trump Jr. and the Trump Organization and all of that. And it would be like, well, you know, individual dash one, you know, who knows?

0:46:24 Thomas: Indictment, right? Hmm.

0:46:51 Thomas: Yeah, I wonder who this is. Yeah, by

0:46:53 Andrew: Could be could be any sitting president of the United States who

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0:48:46 Andrew: Yeah, I will. And I will tell you, right, the the hero we need and possibly the hero we deserve is going to be Harvard University and the Massachusetts Institute of Technology that have sued to block this, this rule from going into effect. And I think they have a good chance of of, uh, succeeding on on, in getting an injunction. I think they have a high likelihood of success on the merits.

I'm going to explain what's happening, and and and I want to bracket, right, like, you you start off with deplorables, and and I wanted to open this segment with, um, perhaps the most racist thing of 2017, right, when, when Yeah, it's a it's big, it's been contest, but but but I think I I've got a strong contender, if not the number one when, you know, corn goblin Steve King said, you know, for everyone who's a valedictorian, there's another hundred of them out there that weigh 130 pounds and they've got calves the size of cantaloupes because they're hauling 75 pounds of marijuana across the desert, right? That was racist enough to get Steve King kicked out of Congress, you know, I mean, ultimately by the voters, right. Right. I want to point out the Trump administration's policy is now targeting explicitly the valedictorians. Right. This is this is a policy that is designed to send home thousands of students in this lawsuit alone at Harvard and MIT.

0:49:44 Thomas: Oh, that's a steep competition.

0:50:35 Andrew: Right. No, no word on the size of the sides of their their calves, but here's here's, I mean, this is this truly is, right, like this I want to begin with that, because we should rightfully mock the idea that, you know, oh, uh, discrimination against people, uh, you know, it doesn't count when they're sending us their quote best and brightest, um, and that, right, the elitism and classism that that is implicit in that are things that we've decried on the show at great length, um, but I want to point out it is now just naked racism, right, like this these are things that that that sending home valedictorians at Harvard, um, they're brown, uh, there's only one reason to do that. So here's what happened, and it's a little bit complicated, but I think I can kind of navigate us through it.

0:51:21 Andrew: So our existing immigration, immigration laws permit foreign nationals to come over to the U.S. and study. And and, in fact, from a geostrategic reason, right, like if you want to look through it, all of that. Right, but I want to tell you, if you look in the literature, if even till now, you will find hardcore neocons like Bill Kristol types, John Bolton types, who argue that our program of bringing in students from China to study in U.S. universities is one of the most important geostrategic things that we do. Right. Because 85 percent of foreign students who come to the United States stay in the United States in high tech fields like A.I., again, right. These folks, no friends of ours, are arguing like, hmm, which would you rather have? Super genius students from our geostrategic rivals going home, or staying here and benefiting the United

0:51:32 Thomas: Yeah, it's one of the best things we can possibly do and we should do more of it.

0:52:36 Andrew: States? And so yeah, this is one of these where, like, humanity intersects with, like, the darkest, most self-interested, right, like, nobody, unless you are a a racist, right, there's no reason to not want this policy. So

0:52:53 Thomas: Q, racist not wanting this policy, this

0:52:55 Andrew: Q, Racist, not wanting this policy. So here's what happens: you have two different kinds of of student visas. F visas for academic students, um, and then they're F1 and F2. F1 is the student, F2 are their dependents, which are uh their spouse or uh their minor children. Right. So um, you apply, you get, you get either the F visa if you're in an academic course, or you get get an M, as in as in monster, visa if you're in a non-academic or a vocational technical course. And again, remember this is higher education, so, you know, it plenty of the vocational technical courses are still highly specialized, you know, STEM fields of education. Again, not that it should, I don't know why I'm like, you know, trying to reach out to our non-existent neocon audience here, but I want to emphasize just how extreme this is.

0:53:50 Andrew: So, okay, you get an F visa, you get a M visa. And under those visas, you are required to attend classes and you are required to, in person, to continue to comply with the visas. And again, when you don't have a pandemic that makes total sense, but on March 9th the administrators of the Student Exchange Visitor Program, SEVP, issued a administrative interpretation. It is message 2003-01, and it was entitled "COVID-19 and Potential Procedural Adaptations for F and M Non-immigrant Students." Right. And basically what that said was, yeah, it's March.

0:54:37 Andrew: The president has just declared a state of emergency with respect to COVID-19. That looks like that's going to be bad. And so here are the policies at SEVP-certified schools with respect to students who are here on F and M visas. And basically what that said was, we want you to be able to maintain your course of study as normally as possible, right, but uh we recognize that there's pandemic, so what we want to do is keep us posted, um, at the school level of any changes in policy, um, and uh subsequently, um, they sought guidance from and received it from ICE, right.

So again, all of this is on March 9th, right, and they said, hey, um, how do you want to handle the typical enforcement of the requirements of the F and M visas? And ICE, and and again, we'll link this document in the show notes, I said, are kind of three situations that we can think of, right? The first is if the school closes and is unable to offer classes online. And in that situation, we're going to treat that like a break, right, like spring break. And so F&M visa students are going to be treated just as active students are, right. So long as you You file a certification that says, yes, as soon as the school offers classes again, I intend to re-enroll.

0:56:14 Andrew: We're going to treat this like spring break. You know, you don't get deported from the country if you're here on an FNM visa because, you the school closes for two weeks. And that's how they were treated.

0:56:23 Thomas: I I mean, am I unreasonable to think this already feels really weird, that they're this active about, like if you don't have a hall pass for five seconds as an international student, you might just get deported?

0:56:35 Andrew: The more I look at this, right, because, again, I'm reading the good rules here. These are the ones that were superseded. Right. But but but your point is very well taken. Right. Like if if you really want to feel a privilege in this country, like delve into any of these. So you're correct, that was the first kind of possibility: the school's not offering classes, classes, then you treat it as a break, and and you should be treated like every other one. Then the second situation was if the school stops in-person classes and then shifts it online, and the visa student remains in the United States. And before issuing this May 9th guidance, or excuse me, this March 9th guidelines, that the rule was, um, if you elected to take your classes, offices, online, then you would be subject to deportation under the F or M visa. And again, you can construct the reason for that, right?

0:56:39 Thomas: Yeah. Yeah, yeah.

0:57:26 Andrew: Like, hey, well, if you're taking it online, you don't have to be in this country to do that. However, on March 9th, ICE suspended that rule and cited, quote, "the extraordinary nature of the COVID-19 emergency," and declared, quote, that the exception would be in effect for the duration of the emergency and in accordance with procedural change documents filed in a timely manner to SEVP, the Student Exchange and Visitor Program. So what does that mean? That means, yeah, we get it. Ordinarily, if you're taking classes online, you got to go home. We're suspending that rule for the the duration of the emergency. That duration, as you might imagine, still going on. Right. Same thing, uh, what happens if uh the school closes, offers online classes, and the visa student left the United States, right, because many of these kids went home. I think about that, like, suppose you're 19, you're here, right, and there's a corona outbreak, like I, yeah.

0:58:24 Thomas: You might Want to get home before you're stuck forever. Spring.

0:58:31 Andrew: I want to go home too. And And again, I said, we're going to treat that like the previous situation right, if you're online, that's fine, you're right, still considered an active enrollee, we're suspending the rule for the duration of the emergency. And the third was, and we're gonna suspend that rule whether you stay in the United States or whether you go home, right, so in other words, like you, you would still then have all the rights of an F or an M visa student, right, to be able to come and go from the country whether you went home for the first part of the of the crisis or stayed in the United States. So even if the student left the U.S., their their visa would still be valid, they could resume in-person classes um as soon as COVID-19 is over, if COVID-19 is ever over, right. That's what I, and again, and like we're not, that this this episode is full of, you know, talking about villains making these pronouncement.

0:59:26 Andrew: Right. Like this is ICE making these announcements. Right. So not, not the ACLU, just ordinary people trying to do their jobs, even in Trump's immigration. Right. Not

0:59:37 Thomas: And The Trump administration said that's not evil enough. Sorry.

0:59:40 Andrew: Only did they do that, here's the timing. And this is raised in Harvard's lawsuit July 3rd. Harvard's School of Design, School of Public Health, the law school, the Divinity School and the School of Government. So some of those are undergraduate colleges. Some of those are postgraduate schools. They announced that for 2020 in the fall term that all courses would be online. The School of Education followed suit later the same day. Those were, uh. Mostly graduate programs. Got Um, a little bit of media attention. Uh, there were stories that said Harvard is going online. Um, and then Harvard university, the faculty of arts and science announced on July 6th that all undergraduate classes would be offered solely online for fall of 2020.

1:00:32 Andrew: And on that same day, July 6th, that's when ICE issued their revised guidelines. And the title of that announcement is "SEVP Modifies Temporary Exemptions for Non-immigrant Students Taking Online Classes During the Fall of 2020." And it is, it is classified as a, quote, "clarification to the prior rule." And uh and it does exactly what you would think it does, right, it says, oh yeah, that thing we said in March, uh, we're not doing that thing anymore, and the previous rule is going to go back into effect: all active F1 and M1 students must transfer to a school with in-person instruction or leave the United States. If not, they will be in violation of their visa and they may be deported. Now you, you tasked me with the question of the one weird trick. Can you so

1:01:28 Thomas: Yeah. So they they there there were people who were like, let's make a kind of a, I guess, fake class. But, you know, let's a class that's like an optional. But attendance is I don't know if it's mandatory, but you can you can somehow fudge it so that it's like you're attending that class. It's one unit, that kind of thing. Will that save all these students?

1:01:48 Andrew: That will not save these students. The regulations require, for example, if you are on the M1 visa, you may not take more than one class or three credit hours online.

1:01:50 Thomas: Geez.

1:02:03 Thomas: What? Gosh.

1:02:05 Andrew: Yep. And what you have to do is you have to fill out this form I-20. Again, kind of sticking with your theme, this is something every student here, you know, every non-immigrant student here studying abroad in the United States has to fill-out every year, right? I mean, just sort of think about that. Like, it's just another thing of like, oh, you When you go to college, like, Like, of course, I have to fill out an I-20 that, you know, describes the college that I'm attending and why I'm, you know, proves to the government that I, that I am doing that. Just another in the background. Yes, so there are potential hybrid plans. Uh, but those hybrid plans, uh are restricted by credit hours. And the school has to describe to SEVP exactly how those plans operate.

1:02:55 Andrew: It says, I'm just going to read from the order, for the fall 2020 semester, semester continuing F and M students who are already in the U.S. may remain in active status only if they make normal progress in a program of study, engaged in an approved practical training either as part of a program or study or following completion of a programme of study. If a school changes its operational stance mid-semester and, as a result, a non-immigrant student switches to only online classes, or a non immigrant student changes their course selections and, as result, end up taking an entirely online course load, schools are reminded that non-immigrant students within the United States are not permitted to take a full course of study through online classes. If non-immigrant student find themselves in this situation, they must leave the country or take alternative steps to maintain their non-immigrant status, such as transferring to a school with in in-person instruction.

1:03:47 Andrew: So, yeah, this is, the cruelty is the point. The racism is the point. Fortunately, don't think this, quote, clarification is going to stand. I don't think it's going to because of the lawsuit that Harvard and MIT have filed against ICE. I've that.

1:04:06 Thomas: Well, Well, I'm glad we aren't simply relying on one weird tricks.

1:04:09 Andrew: Yeah. Their argument is, hey, man, we relied on the guidance issued by ICE and issued by the relevant agency, SEVP, back in March when we said we were going online. Line, yeah.

1:04:25 Thomas: A lot of filings are starting with Heyman lately. I think it's because the law is so weird now that you're like, hey, come on, you know, every single filing.

1:04:28 Andrew: Yeah. It Of Harvard's 23,000 students, 5,000 have F1 visas. At MIT, 11,500 students, 4,000 have F1 visas, right? It It absolutely is a significant chunk, and you can't take, take tens of thousands of, and again, you know, I mean, just in Massachusetts alone, you can't take tens of dozens of kids and say, oh, well, you know, time, time to transfer over to, you know, the, like, how in the hell do you do that? Uh, in, you know, this is July and the certifications are due in the beginning of August, right? So, I think, uh, and and and the lawsuit so begins with that detrimental. And then says, pursuant to the Administrative Procedure Act, we've, we've talked about this before. ICE gave zero reason whatsoever for reversing its position. And again, we've talking about this with Trump administrative actions to

1:04:46 Thomas: That is a significant chunk.

1:05:38 Thomas: Yeah,

1:05:38 Andrew: Date. Right.

1:05:38 Thomas: Usually you have to give notice, have good, well, I don't know what applies in this case, but is it going to be one of those things where this is just too fast for people to be able to rely on on policy going forward kind of thing?

1:05:50 Andrew: Not only did they evade the notice and comment period. Right. But yeah. Right. When an administrative agency changes its course, it is entitled to substantial deference. Right. The, the argument you have to make is that it is arbitrary and capricious. Right. And that's a hard thing to prove, unless you have an agency abruptly reversing course as The coronavirus got Worse, to undo the exceptions that they put into place when it was less Worse.

1:05:55 Thomas: Right, yeah, five minutes ago, yeah.

1:06:22 Andrew: Yeah, exactly. And is it arbitrary? When you give no analysis whatsoever, those are the kinds of cases in which courts say, yeah, this is arbitrary and capricious. So generally speaking, you do not want to be attacking an administrative agency and saying their reasons were arbitrary and capacious. This is the fog mirror kind of test. But there's no mirror.

1:06:42 Andrew: And they are. And so usually I would say, you know, my estimation of the likelihood of prevailing on proving something arbitrary and capricious is pretty low. I don't think the schools are going to have any difficulty proving that it

1:06:54 Thomas: So is this enjoined yet, or will it be enjoined right away, kind of thing?

1:06:58 Andrew: As of today, it has not yet been enjoined. But the but the case was filed yesterday. So look, look, it it's going to move quickly. Right. Because it is requesting both a TRO temporary restraining order and and both preliminary and permanent injunctive relief preventing the July 6th ICE order from going into effect. Effect. But that's going to happen soon. And I feel very, very confident we will continue to monitor. I'll be shocked if the court does not enjoin that policy from going into effect. And again, district court in the District of Massachusetts, this would then go up to the Second Circuit Court of Appeal.

So, you know, we're not talking about the 11th Circuit. We're not talking about a place where you can roll the dice and, you know, maybe come up with with Trump appointees, although although again. Right. Remember, part of the damage here is that Donald Trump has appointed an awful lot of folks to the judiciary across the country. But I feel I feel pretty good about this one. I And would say, you know, if you if you are a student on an F or an M visa, like I go home today. Right. Like we're like, wait, wait to see what happens, because.

1:07:06 Thomas: Yeah, yeah...

1:08:08 Thomas: I mean, unless you want to.

1:08:10 Andrew: But don't don't give up hope, because I think that that's that that'S likely to be the case.

1:08:13 Thomas: Yeah... but what a Horrific, horrific racist asshole, evil thing to do. I we need to be rid of these people and abolish ICE and all that stuff, sorry, anyway, um, okay, yeah,

1:08:16 Andrew: Yeah, it is. There's no. Yeah. But again, remember, like the ICE March order. Right. Right. Like, again, I'm with you on abolish ICE. But but right. Like we're helped by the fact that the March order also came from ICE. Right. Like it was it's sort of like even, you know, the foot soldiers in this were like, well, I didn't think you were going to send home Harvard educated valedictorians.

1:08:39 Thomas: Yeah, four thousand MIT students or whatever, like, come on, yeah, it was pretty good news show.

1:08:48 Andrew: Yeah. Yeah. Yeah. There you go. Uh. I mean, relatively good news showed. I know we're covering a horrible thing, but it's horrible thing that's going to get better yeah, good new show.

1:08:56 Thomas: Um,

1:08:57 Clip: And thank you, Let's go!

1:08:58 Thomas: And now it is time to thank our new patrons at patreon.com/law, uh, by the way, a lot of movies coming at you real soon within the week. So look forward to that, uh, but once you start us off, Andrew.

1:08:59 Andrew: Right, oh, Yeah. Thank you to Learned's Hand slaps Trump, to Andrew PP Torres, I Like Peeing Totally Clear, all right, fine, that's, I will read eight-year-old humor all day long if you sign up as a patron, to James Andrini, um, I hope that's a former opposing counsel, James Andrani, uh, to Cullen, to Graeme Forbes, Edward Melishinsky, and Andrea Hessey, take it away, Thomas.

1:09:39 Thomas: And Thank you to Christy, Sybil-Shanks, the Prison Cat, it's a beautiful day to demand justice for Breonna Taylor. Yeah.

1:09:46 Andrew: Yes, it is.

1:09:48 Thomas: Originalists read the law like they read their Bible poorly. Michael Jesch and Michael Dion. Or Dion or I don't know why I got all fancy with that. Uh one way or the other. Thank you so much for being a patron.

1:09:48 Andrew: Yeah.

1:09:59 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:06 Thomas: And we are joined by special guest Andrew Seidel, uh, not sure if, Andrew, are you familiar with what we do on the show? Oh, that's right, you've been on like 47 times, I think you know the deal, we're doing T3BE as a little sneak peek of the fact that we're having you on Tuesday to, if I have my way, do some yelling. How's it going, Andrew? Drew yeah save

1:10:26 Seidel: I mean, I've been better, I'm getting geared up to yell, yeah, let's do it.

1:10:31 Thomas: That rage for Tuesday's episode, but for now it is time for T3BE, and uh, I think I got the last one right, so I picked uh picked myself up off that horrible skid I was on, and let's see if I can make it two in a row I've

1:10:44 Seidel: I believe in you.

1:10:56 Andrew: A shop owner, domiciled in State A, sued a distributor in federal district court in State A for breach of contract. The shop owner sought one hundred thousand dollars in damages for allegedly defective of goods that the distributor had provided under the contract. The distributor is incorporated in State B with its principal place of business in State C.

1:11:18 Thomas: Already tuned out.

1:11:19 Andrew: I The distributor is incorporated in State B with its principal place of business in State C. The distributor brought in as a third party defendant the wholesaler that had provided the goods to the distributor, alleging that the wholesaler had a duty to indemnify the distributor for any damages recovered by the shop owner. The wholeseler is incorporated, incorporated in State B, with its principal place of business in State A. And

1:11:19 Thomas: Damn.

1:11:46 Thomas: Be one of those flip a four-sided coin ones.

1:11:48 Andrew: I it continues the wholesaler right has now been you know uh brought into the action has asserted a $60,000 counterclaim against the distributor for payments of the good for the goods at issue. And the distributor has now moved to dismiss the counterclave for lack of subject matter jurisdiction. Should the motion to dismiss be granted? Love this. A, no, because the wholesaler's and the distributor's principal places of business are diverse. B, no, because there is supplemental jurisdiction over the wholesaler's counterclaim. C, yes, because there was no diversity of citizenship between the distributor and the wholesaler, or D, yes, because the is no diversity between the shop owner and the wholesale. Oh,

1:12:13 Thomas: God. You Had to embarrass me like this in front of our friend Andrew Seidel, I, this is normally, I'll try to do my best to decod this for our other non-lawyer listeners. But we've got a shop owner, State A, sues distributor, federal district court in State A for breach of contract. The distributor is incorporated in State B with principal place of business in State C. So the shop owner is saying, hey, you, you gave me bad something, whatever it is, bad goods, defective goods. And then the distributor says, well, I am indemnified, I should be indemnify it against this because my wholesaler, I guess, uh, who provided me the goods says I, you know, I should being indemnifed, but because it's their responsibility, essentially, I gas, uh, for any damages, the wholesaler.

1:13:25 Thomas: So it says it brought, the distributor brought in as a third party defendant the wholesaler, I don't really understand what that means, how you do that, can you just do that kind of, if I get sued can I just be like, I'm bringing you, I know you're suing me but I'm bring an Andrew Torrez because I think he should be responsible for anything I say, so if I don't, if we can do that, I guess I'll try to do that, alleging the wholesalar is incorporated, now at this part I, I don't know if this matters, but just in case. Wholesaler is incorporated in State B with principal place of business State A. Okay, so now we're just talking about, the confusing part is we're now just talking about the wholesaler and the distributor, because it says the wholeseler has asserted a $60,000 counterclaim against the distributor for payment.

1:14:12 Thomas: So this part, I do not understand. I can't wait to have some Andrews explain this to me, which is the shop owner suing the distributor and the distributor is saying, I'm bringing in a defendant, which is the wholesaler, like bring it like on their side kind or something. But then it says the wholesaler is doing a counterclaim against the distributor, which I don't know how you have a counter claim against the person who's not suing you. Like it's still the shop owner who's suing me.

That's confusing to me. I'm sure it'll work itself out somehow. Counterclaiming against the distributors, blah, blah. Blah, blah. And the distributor has moved to dismiss the counterclaim for lack of subject matter jurisdiction. So, the whole question rests on, I guess, the distributor dismissing the counter claim that the wholesaler brought for lack-of-subject-matter jurisdiction. Is the trick going to be because we're in federal district court, It's going to matter whether we've got the diversity jurisdiction kind of thing? Is that what it's going to be?

So I guess if I'm looking at the wholesaler and the distributor, we'll go back to it here, the distributor's in State B with principal place of business in State C, and it says the wholesalar is in State Be with principal piece of business and State A, uh, that seems like it has enough diversity going on, although I can never remember the specific rules, and is that going to be what it rests on.

Okay, so, should the motion to dismiss, ah, god, screw this question, Andrew, should the notion dismiss be granted? A, no, because the wholesaler's and the distributor's principal places of business are diverse, that could be, okay, so that, that at least tracks with the facts as I see them, because one is state principal place of business State C, the other is State A.

1:15:58 Thomas: B, no, because there's supplemental jurisdiction over the wholesaler's counterclaim. That answer I take to be like, because the counterclaimed arose as a result of the original claim, even if there's some sort of jurisdiction issue, it wouldn't matter because it's part of that original thing. That's kind of how I'm reading that, which if that's true, that's going to be really hard to pick which is the better answer between A and B. I'm actually not sure. I think I would lean toward A for the no answers. Okay. So now let's go to the yes answer. So this is yes. The motion will be dismissed. It's C yes, because there's no diversity of citizenship between the distributor and the wholesaler. So that is true. So, so I'm having a hard time remembering what matters is between where it's incorporated.

1:16:45 Thomas: So I think that's saying because it's the distributor's incorporated in State B, the, the wholesaler is incorporated, so they're both incorporated in State B, and then the question is because they have the different places business in State A versus State C. So that's, I don't know. And then D, yes, because there's no diversity of citizenship between the shop owner and the wholesaler. Well, I'm going to go ahead and say say D is the one I can get rid of, I hope, well, god, maybe not, because of the weird uh co-defendant thingy, this is a skip, the answer is skip the question it's not worth the time it's

1:17:18 Seidel: Skip. It come back to it if you have time on it later yeah

1:17:21 Thomas: Yeah this is not worth a time of sorting through this

1:17:24 Seidel: Seriously as Torres was reading it I was like that would but this is what I would do on that one probably you'll

1:17:24 Thomas: Um yeah you just skip there's... there's no reason to answer this um so I'll do. Okay, but because I've taken, I've wasted all of our time, I might as well try to come up with an answer.

Um, this is really hard because right when I thought I could dismiss D, I could also see a weird situation in which, you know, because the original suit was involved the shop owner, but maybe I'll just try to, it's like that old thing, you know, when you're looking for your keys in the dark, you just look under the street lamp, not because they might be there, but because that's the only place you will find them if they are there, because you got the light.

I'm gonna say go with my instinct to dismiss D because I don't, the shopowner is no longer claim, so I don't care about that. Um, that would make it easier to say C, yes, so that gives me an easier yes answer. But I, I don't think I need to worry about the facts of why the money is being, what I think we're just worried about subject matter jurisdiction, whatever, so I think it's between A and B actually, the two no answers. I think it's either

1:17:33 Seidel: Have time to come back

1:18:25 Thomas: Its either, okay, because the business places of business or diverse, or because there is supplemental jurisdiction over, over the wholesaler's counterclaim. I think those are both plausible-ish. And so, like, which would be the better no answer? And I think I'll go ahead and say A, no, because the wholesalers and distributors' principal places of business are diverse. I have less than zero confidence in this answer, but I go on with that. Screw this question. We should have all skipped this. And I'm sorry to have wasted the listener's time. And I'm sorry to have wasted the Andrews' time, but no, you signed on for this, so I retract that apology. All right, Andrew Seidl, tell me what in the world is happening in this question.

1:18:53 Seidel: I mean

1:19:05 Andrew: I

1:19:10 Seidel: This is it's a jurisdiction subject matter jurisdiction uh 1332 question but really it's 1367 question I think so I mean it's pretty It's Pretty clear that the original claim meets the 1332 jurisdiction. There's diversity. The amount in controversy is over 75,000. So there's a federal jurisdiction under 1332 over the original claim, right? So then the question is, can the court look at this counterclaim with 1367 supplemental jurisdiction? And if I remember the language, it's is so related or something like that uh to the original claims and I'm just going to go ahead and say that it is so related.

1:19:21 Thomas: Ah, there's my mistake.

1:19:53 Thomas: Man,

1:19:54 Seidel: It looks close enough for me I don't remember this, the test for so related, uh, so yeah, I'm gonna go, I'm gonna go B, uh, no but that that yeah that's why they're that's Why they're tricking you because there's not 1332 over that second counterclaim because it's under but they

1:19:54 Thomas: It's B, because the amount is less than 75,000, but because, yeah, that's what I'm saying, but since it's related, gotcha, ah, well.

1:20:15 Seidel: Can still have 1367 yeah yeah so so that's supplemental 28 U.S.C. 1367. To I think the court does have supplemental jurisdiction, so I'm going with that answer, which I think you said, I think that was B. that's

1:20:28 Thomas: Sometimes, though, we're both wrong, so you never know, but that sounds pretty well reasoned to me. But thanks for playing, Andrew Seidel. And Andrew, why don't you tell people how they can play along? Long

1:20:31 Seidel: True real yeah

1:20:40 Andrew: Want to play along with this, uh, discussion of 28 U.S.C. 1367? I, I love, there's nothing I love better than, um, when a lawyer who isn't me goes into a huge detailed discussion and cites to statutes only to, like, have somebody come along and be like, right, right, but it's this other thing I'm not saying that that's the case here I I am not, I'm just saying feel free to guess either Thomas's answer A, uh, Andrew Sidles answer B, uh, or maybe one of the yes answers, who knows. And, uh, you know how to do that, just share this episode out on social media, include the hashtag T3BE, include one of those four fine guesses, and we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortunate not guaranteed.

1:20:57 Seidel: Oh great yes yeah Yes.

1:21:24 Thomas: All right. Andrew Seidel, I can't wait to find out that you're right and also hear you yelling about separation of church and state on Tuesday, so we will see you all then because

1:21:31 Seidel: I

1:21:34 Clip: He's not even a lawyer and he's kicking your ass.

1:22:07 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.