OA407: Trump's Illegal DHS Secretary

Transcript

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

0:01:17 Thomas: Hello and welcome to Open Arguments. This is episode 407. I'm Thomas Smith. That's Andrew Torrez. How you doing, Andrew?

0:01:22 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: Well, you know, still mad about secret police arresting protesters. But you know. Otherwise, fine, I guess. That we've got a lot of stuff on the show. We're going to talk about Flynn, one We of the leaders in the evil clubhouse for doing bad stuff in the Trump administration, Acting Secretary Wolf, and what's going on there. But before we get to that, you wanted to talk a little bit about some intel on Russian interference with Brexit.

0:01:33 Andrew: Yeah.

0:01:57 Andrew: Yeah, yeah. So as this is airing, I will have given a speech, Hope You Listened, to the Good Thinking Society and Skeptics in the Pub UK, organized by a friend of the show and our personal friend, Michael Marshall. I'm going to try and get that audio and the slides and make that available at least to patrons, like, you know, like we do with my speeches. It should be a good one, right? Right. Marsh sent me the reluctantly released UK intelligence report on Russian interference with Brexit. And I thought I would highlight a couple of things that I think are pretty instructive as we face an election here in the US in 2020. and people continue not to take seriously the threat of a hostile foreign power trying to subvert that election.

So again, these are UK intelligence sources, right, from a conservative UK government. Paragraph four, what Russia wants. Posed by Russia is difficult for the West to manage as, in our view and that of many others, it appears fundamentally nihilistic. Russia seems to see foreign policy as a zero-sum game. Any actions it can take which damage the West are fundamentally good for Russia. Would you just put a pin in that one, It right? Is also seemingly fed by paranoia, believing that Western institutions have a far more aggressive posture towards it than they do in reality.

0:03:35 Andrew: There's a sense that Russia believes that an undemocratic might-is-right world plays to its strengths, which lead it to undermine the rules-based international order, while nonetheless benefiting from its membership in international political and economic institutions. I thought that was just an excellent summary so that people understand what we are up against. We are up again against Vladimir Putin, a strong man who wants the world to embrace the idea that might is right, that strength is power, that international institutions are bad, and does not have an overarching ideology, right? He does not prefer Donald Trump because he and Donald Trump want to do the same things. He prefers Donald Trump, because preferring Donald Trump hurts the United States, and anything that hurts the West is good for Russia.

0:04:28 Andrew: Many of our listeners know this already, but I think it's worth articulating that that is the consensus of the international community, that what Russia is out to do is to sow discord. And then the question is, did they interfere with Brexit? And the answer is, we don't know, because the UK did not take seriously the idea that Russia could or would meddle in their internal affairs. This is I'm going to include the link in the show notes. This is paragraphs 42 to 43 and 47 to 48. But basically, when Russia completed the hack and leak operation against the DNC with stolen emails being made public a month after Brexit, that was the point in which the government, the British, the UK government started.

0:05:27 Andrew: Quote, belatedly realized the level of threat which Russia could pose in this area, describing that as a game changer. And prior to what we saw in the States, Russian interference wasn't generally understood as a big threat to electoral processes. So, that for a minute. That is saying that Britain looked at what Russia did in our elections in 2016 and said, holy clownhorn, we need to be taking these Russian cyber attacks seriously. Maybe they messed with Brexit. Too late to find out because we were not on guard. If this makes you nervous about the fact that our government is deliberately not putting policies into place to try and prohibit Russia from interfering in the 2020 election, maybe you have good cause for being concerned.

0:06:25 Andrew: So so that's the report. It's a terrifying report because it highlights the dangers of complacency. So I will link that in the show notes. Go ahead and read it. We have a handful of listeners who are super far left and like pro-Russian and get on us. But Russia's like our geostrategic enemy and they're led by a dictator, man. Man, like This is something that the UK wished they had taken seriously. And I wish our government would take seriously. I'm afraid that it's going to be like Britain. We're going to wake up and say, oh, man, that was a game changer. Kind of wish we'd been thinking about that before. And the signs are there. Everybody else knows what's going on except us.

0:07:11 Thomas: Yeah.

0:07:11 Andrew: That.

0:07:12 Thomas: I, I'm just so alarmed by, you know, the fact that when you describe Putin's view of foreign policy and how it's zero sum, that that's also Trump's view A foreign policy. And now it works like the idea. And it's too bad. I hope that mainstream conservatives someday will get away from this. But, you know, I think a pandemic, if nothing else, should show that we can work together and actually all benefit, rather than it being some sort of contest where it's winners and losers.

0:07:41 Andrew: That would, be delightful, wouldn't it?

0:07:42 Thomas: Yeah. Kumbaya and all that, et cetera, etetera. All right, let's get to now our main segments. That was a long pre-segment. That's okay. That's sort of a bonus sneak in wild card there for you.

0:07:57 Clip: 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? To a large extent, it's corrupt and it's fake. Ask the president of Finland a question, please.

0:08:16 Thomas: Okay, what's going on with Flynn? What's the update? I saw you very active on Twitter the other day talking about things that the government may have done incorrectly. I can't wait to hear it.

0:08:27 Andrew: Yep, so as we mentioned last week, uh, in the Michael Flynn case, the DC Circuit, inexplicably to one Naomi Rao opinion, uh, ruled that mandamus was appropriate, and that Judge Sullivan... And so as a result, Judge Sullivan petitioned for a full review by the entire en banc court of the D.C. Circuit to say that that decision is nonsense, get rid of it. And week ago yesterday, the 20th of July, the government and Michael Flynn's responses were due opposing en banc.

0:09:14 Andrew: They are in, and I have to tell you, they're terrible. And the one thing I want to flag is the least terrible argument across these two briefs is the argument that we made for them on this show. And that is the argument that says that Judge Sullivan is not properly a party to the litigation, in that he has no stake in the outcome of the litigation and therefore did not have standing to request en banc review, because under Rule 35 of the Federal Rules of Appellate Procedure, you have to be a party, um, before we get to that argument that, that we front-loaded for the government. Yeah.

0:10:00 Thomas: Yeah, nice job, man.

0:10:01 Andrew: Sorry, I did, I can't help it, but, like, honestly describe the law, uh, I still, look, I still think that, that, that's not grounds for, uh, declining to, that, that will not be the reason why the DC Circuit declines to review this case on Bonk. But in any event, the argument on the merits here is terrible, right? So, for example, on page five of the government's brief, and again, we'll link in the show notes, they say, look, the DC Circuit gets it right, mandamus is appropriate. And I'm going to read, remember that the case that they're misconstruing in the Rao opinion is a case called In Re Fokker Services BV, right?

0:10:50 Andrew: And that was a D.C. Circuit opinion that was not about Rule 48A, but had some dicta about Rule48A that Judge Naomi Rao decided to say was dispositive. And it just, it clearly isn't. In defending that interpretation, the government says, quote, Fokker accords with other decisions explaining that a district court may deny an unopposed motion to dismiss, if at all, only in an extraordinary case where the prosecutor accepts a bribe or otherwise appears to be acting without the approval of the Justice Department. And then it cites to a case called In Re United States from the Seventh Circuit in 2003. That's case we actually discuss in our amicus. Well, I discussed it in mine. I think you also touched on it in your amicus brief.

0:11:37 Thomas: Yeah, of course. I'll have to check the citations that I made, like

0:11:38 Andrew: Right. Yeah. Okay. Are only two problems with this argument, right? The first is, even if that sentence were true, that's not mandamusable, right. Like when you say, oh, well, don't have much discretion, right, like that's like, you know, when I try and serve the vegetarian a salad with bacon bits on it, and I'm like, well it doesn't have a lot of meat in it, right like Like it's a binary decision to mandamus an official. They must have no discretion conceding that they have discretion. But, you know, it's only in extraordinary cases is like that's an own goal like that defeats mandamus on its face. And and I trust that in his reply brief, Judge Sullivan will point that out and that the judges of the D.C. Circuit are smart enough to to recognize that obvious contradiction.

0:12:27 Thomas: Worry that my legal language is leaking into your lexicon when you say something's not mandamusable, that's uh, yikes. Lie,

0:12:33 Andrew: I Yeah, that's true. And the second that is truly kind of flabbergasting about this sentence is the argument we made in amicus brief that what Judge Sullivan should do is conduct an evidentiary hearing to see if there was anything improper, you know, to see. See if there were any improprieties, which would include something tantamount to the prosecutor accepting a bribe. Right. And that is that if there is undue political influence by and between the Attorney General and Michael Flynn, it's it's hard to argue that that is different in kind from, you know, me giving a bag of money to the persecutor to drop the case. So it's just so the arguments are super duper bad.

0:13:26 Andrew: Um, with the exception of the argument in section three of the government's brief that says the petition is procedurally improper for the reason that I've described. Um, but, but even then the government has managed to make this argument in the worst way possible. And and they've done so by misconstruing, I called it lying on Twitter. If you want to be overly charitable, you might say it's not a lie, it's just misleading. Here's what they say, okay, and I'll let leave it to you to to to judge whether this is a lie or not. Only a party

0:14:03 Thomas: No, I'm kidding, sorry, I jumped the gun a little, yes.

0:14:06 Andrew: Only a party may petition for rehearing on bunk. That's true. Cite Rule of Appellate Procedure, FRAP 35B. Now, here's the part that I am asking your discretion on. Judges were once considered nominal respondents in mandamus proceedings, but in 1996, quote, quote, "the rule was amended so that the judge is not treated as a respondent," end of quote, with a citation to 1996 note, and then also see also to FRAP 21, which I'm going to talk about in a second. Now, as a budding lawyer, albeit somebody who got a furlough from having to answer the bar exam question this week, so I'm gonna ask you this in lieu of it.

0:14:53 Andrew: When you read that sentence. Does that sentence suggest to you that Federal Rule of Appellate Procedure 35B was amended in 1996? Yeah, it does to me too. And you know what? Federal Rule of Appellate Procedure 35 was not amended in 96. It was amended in 1994. It Was amended again in 1998.

0:15:13 Thomas: That goes against what I would expect based on hearing that sentence.

0:15:16 Andrew: Yeah, me too! Now, Now, as it turns out, if you read it backwards, right, Federal Rule of Appellate Procedure 21 was amended in 1996. That amendment was described as following. I'm going to read you the entire paragraph. In fact, I'm gonna read you a paragraph and then another sentence. Okay. In most instances, a writ of mandamus, or prohibition, is not actually directed to a judge in any more personal way than is in order reversing a court's judgment. Most often, a petition for writ of Mandamus seeks review of the intrinsic merits of a judge's action, and is in reality an adversary proceeding between the parties. In order to change the tone of the rule and of mandamous proceedings generally, the rule rule is amended so that the judge is not treated as a respondent. The caption and subdivision are amended by deleting the reference to the writs as being directed to a judge or judges.

0:15:16 Thomas: Okay.

0:15:31 Thomas: I'll

0:16:26 Andrew: Subdivision A applies to writs of mandamus or prohibition directed to court, but is amended so that a petition for a writ of mandamous or prohibision does not bear the name of the judge, end of quote. I'll through. So one, um, that's an entirely different rule. And two, those amendments, those 1996 amendments are by their own explicit terms, terms directed to the tone, right, that is the the form, the caption, the way these things are titled, uh, and not to the substance, right, and so when when that and again that's not the position that they cite, right, they lead you to believe that rule 35 was amended.

We just went through it, wasn't, it was rule 21 that was amended. But when they say the rule was amended so that the judge is not treated as a respondent, that's almost the opposite of the purpose of that amendment, right? The purpose of the amendment is how captioned. It deals with the form, the tone, what we call them. It absolutely does not have any bearing on standing whatsoever. And no lawyer worth their salt would say that a change in how something is captioned is dispositive of whether somebody is a party to a case.

0:17:02 Thomas: Well, I'm no lawyer lawyer but this sounds like some dishonest nonsense to me, Andrew, so what gets to be done about this? Nothing?

0:17:49 Andrew: So it seemed dishonest to me, too. And that's what I was calling out on Twitter.

0:17:59 Andrew: I believe that Judge Sullivan, I'm trying to bring it to the attention of folks that may get it back channeled, between Judge Sullivan and and the clerks to the en banc judges that they will correct this misciting. Pretty strongly that this will not go unnoticed, and I have tried to make sure the right people notice it.

0:18:24 Thomas: All right, so who gets to call BS on this exactly? Exactly.

0:18:27 Andrew: Remember, this is a petition in opposition to rehearing the case on Bonk. And so there are 11 judges on the D.C. Circuit. If six of them decide that they want to rehear this case on bonk, they can do so.

0:18:44 Thomas: Gotcha. OK, so it's not going to any sort like the Supreme Court or any higher court. It's just this is the petition to the circuit court, which was already going to consider all of this anyway and make a decision, I guess. But they can. So they're going to be able to look at this and be like, well, this is this is some real fine, genuine lawyer BS right here. We're not goingto consider this argument possibly.

0:18:45 Andrew: Nope, nope.

0:19:05 Andrew: Yeah. And and again, it illustrates a point that I have tried to make, you know, throughout my legal career, required, you know, some modifications of tone of of some of my like more strident pleadings when I was in my 20. When you do stuff like this, it undercuts how the court views the rest of your arguments. Right? They should have been genuine and honest, because there is a decent argument, right, that says, uh, Judge Sullivan didn't have standing here. You could have crafted that argument. We crafted it for them on this show, but they had to go and gild the lily. And and and I sincerely hope that as a result of that, it makes that more likely that they're going to lose.

0:19:49 Thomas: All right. Well, here's hoping. Hoping.

0:19:53 Clip: The law breaking down

0:20:00 Thomas: Andrew, uh, how is it that we've had an acting secretary, evil McBad person, uh, secretary Wolf, has been acting for 250 plus days? That doesn't seem right.

0:20:12 Andrew: If it doesn't seem right, it's because it's not right. And this is another area where I've been chatting with a lot of folks, because I don't understand why there is not pending litigation regarding the fact that Chad Wolf, acting Homeland Security Secretary, is not legally entitled to be in office, this. And unlike the sternly worded crunch wraps, I'm going to tell you the way in which this litigation will be presented and the potential great outcome. I mean, seriously, the potential great outcome that that that could result from this. So, like I said, I've talked to a lot of lawyers, including I went back and forth with Michael Rosofsky on Twitter.

0:20:58 Andrew: So Michael, thank thank you for your input and for your thoughts. Now, you said in the lead up, Chad Wolf is evil. He is the architect of the Portland policy that we discussed last week. He is not the secretary of Homeland Security, right? He's the acting secretary of homeland security. And he has been in that position, as you said, for 250 plus days under the Federal Vacancies Reform Act of 1998, which we've discussed on this show. An acting official may not serve more than 210 days. So so what gives? Right. First, I want to explain that that there are some loopholes, including some some rather large loophols to the 210 day maximum. And that is that if there is a pending nomination, an acting secretary can serve during the pendency of that nomination.

0:21:06 Thomas: Is it

0:21:52 Andrew: And then if the first even if it goes over 210 days and then if that first nomination fails and there's a second nomination, then the acting secretary Can continue to serve throughout that second while the second nomination is pending. And that triggers up to if so, if the second official is nominated before the 210 days elapse, then that triggers a new 210 day period. Yep. And so Mick Mulvaney, for example, served as acting director of the Consumer Finance Protection Bureau for 380 days under precisely this loophole, right? Right. Because the second nominee, Craninger, was nominated on day 202 of Mulvaney's tenure.

0:22:40 Andrew: Right. So, yeah, you can game this for over a year. But that still doesn't explain what's happened with Wolf, because there has been no nominee for director of Homeland Security.

0:22:52 Thomas: Though they can't find anyone even more evil. They're like, gosh, he he's the most evil. How do we, can we get Megatron?

0:22:52 Andrew: Uh, No. They have.

0:22:58 Thomas: Can we? Yeah.

0:22:58 Andrew: Yeah. No, because his deputy acting director, also illegally appointed, is Ken Cuccinelli. And, uh, if that name is is not familiar to you, it should be, um, he he has tried to run, uh, for statewide office in Virginia on multiple occasions. I think he's lost every time. He's strongly associated with Focus on the Family. He's worse. Um, so yeah, no, it's it's believe me, like, like they always have somebody worse waiting in the wings. But no, nobody has been put forward as a permanent nominee, and so so that loophole doesn't come into play. What they think does is another section that does not come into play. It is six USC section 551.

0:23:45 Andrew: And it says, during the transition period, pending the advice and consent of the Senate to the appointment of an officer required by this chapter to be appointed by and with such advice and consent. And by the way, I should do a sidebar here for a second and say that those, they're called P.A.S. positions. There are positions throughout the federal bureaucracy, right? It's about a thousand that are directors and assistant directors and deputy directors, and they are appointed by the president, but they require the advice and consent of the Senate, right? So in other words, they're an area where the president has kind of near plenary power over the executive branch, but this is an area where they don't, right, where the president is required to seek the advice and consent of the Senate.

0:24:36 Andrew: And that's why we have, like, right, Cabinet level nominees are P.A.S. officials, right? They they must be approved by the Senate. And again, the Senate is fifty three forty seven Republican. They've been rubber stamping everything Trump has done since the very beginning. This is not a high bar, but many of these people could not clear, you know, that bar. And that's why there has been a dedicated effort, again, like we talked about in last week's episode, this is not just happenstance, right? These are deliberately Machiavellian efforts within the system to try and shuffle people around and keep them in acting position so as to avoid exposing them to even the most basic level of scrutiny that they would get in a Republican Senate.

0:25:24 Andrew: Anyway, back to 6 U.S.C. 551, which says the president may designate any officer whose appointment was required to be made by and with such advice and consent and who was such an officer immediately before the effective date of this chapter to act in such office until the same is filled as provided in this chapter. You sit there thinking, like, okay, well then that seems to supersede the whole time thing, right? Like you're acting, you get to act until there's a permanent official. And so by not not naming somebody, that waives the timeframe. And those kinds of provisions are found throughout the U.S. code, right? So that one was for Homeland Security, but but here's one, for example, for the U.S. International Development Finance Corporation, right?

0:26:14 Andrew: That, that, that repeats the same language. But that language again, upon which the government has relied in litigation begins with the phrase during the transition period. And although that seems like maybe that's ambiguous and some people have argued that means transition from one administration to another, doesn't mean that at all. The phrase duringthe transition period within statutes from the original provision from which this was copied means, remember that that Homeland Security was created as an agency in 2002, right? And so it means during the transition period, while we're creating this agency and moving responsibilities and changing the laws to stick all the stuff under this new executive agency, right, that expired in 2004. for. This exception hasn't been good law for 16 years.

0:26:51 Thomas: Wow. Yeah.

0:27:12 Andrew: Yeah. Takes time to set up an exam, but like DHS is set up, right? Like it's the transition period is over. So that's not a good excuse.

0:27:21 Thomas: We need to transition out of it. We should start the transitioning to dismantle DHS, huh?

0:27:23 Andrew: Yeah, no, absolutely. That would be an excellent position for our next Democratic So I have good news and bad news. I'm going to start with the bad news, which is under the Federal Vacancies Reform Act, if somebody has overstayed their welcome, there is no provision in the law to remove them from office. OK, you can't kick them out even if they're outside the 210 day window.

0:27:57 Thomas: Oh.

0:27:58 Andrew: So that sounds super bad. Right. It turns out the mechanism that they put in place. And again, I think that not I think this was clearly inadvertent. Right? Like this was the Federal Vacancies Reform Act was passed in 1998. 98. Nobody was thinking we would have Donald Trump and people trying to evade the law. This is just our good luck. But the mechanism they put in place is much, much stronger than just kicking out an acting director who has overstayed their welcome. The mechanism is 5 U.S.C. 3348 D1. And what it says is that if an acting director overstays their welcome, then all of the actions taken by the agency are void ab initio, which is Latin for from the beginning.

0:28:54 Andrew: Beginning, that means, and again, I I am a hundred, I'm going to talk about the asterisk by that, but that means that everything, if Chad Wolf is outside of the statutory period, everything he has done for the past 40 days is ultra vires. Is beyond the power

0:29:08 Thomas: I thought it meant from the beginning of his entire, okay, so just back to when he should have been out, is gone. Gotcha.

0:29:09 Andrew: Yeah. Exactly. At the point at which he is no longer appropriate, uh, appropriately considered the director of of Homeland Security, everything, everything Homeland Security does at his direction is void, right? Not voidable, right, not can be challenged, is presumptively void from the moment that he's no longer deserves to be there. So it puts the onus, it's brilliant, and it's why I want to highlight it. This is the kind of model we need to follow in the post Trump era. Right. Because it used to be you could say, OK, well, you know, you got to do X. But but like, you Know, clear as Kushner. Right? Like, where was the harm of you? You you put your son in law on the payroll, even though it's that's clearly against the law. Right, where's the remedy? There was no remedy.

Well, you you know, we just, we think presidents probably won't do that. Well, you didn't count on Donald Trump. And, and plenty of executive branch positions follow that model of like, we're telling you this is against the law. Well what happens if the president violates it? Well, we're telling you, right? Sternly worded crunch wrap is, is headed to the office, right. This provides the model for what our laws need to look like going forward.

0:29:15 Thomas: Yeah. Oh.

0:30:31 Andrew: And that is Anything you do in excess of this is void ab initio. From the moment you no longer belong in office, everything you've done gets undone. It's one weird trick. This has been confirmed by the Supreme Court. Case called National Labor Relations Board versus Southwest General, 137 Supreme Court, 9-29-2017. But as with all good news, there's an asterisk.

0:30:44 Thomas: Yeah, I thought you were gonna give us the bad news first and then the good news, not now we got bad news, good news, and then undo the good news.

0:31:08 Andrew: It's bad news sandwich.

0:31:09 Thomas: I think it's a good news sandwich. Sorry. Okay. Pedantry argument. Of the sandwich is what the sandwich is. Yeah.

0:31:10 Andrew: I'm sorry. It's what the sandwich is. No, I agree. I totally agree with that.

0:31:19 Thomas: Turkey sandwich isn't turkey and then a piece of bread in the middle. Although, hold on. Yeah, can

0:31:20 Andrew: Yeah Oh, you know how good? Yeah. Two pieces of turkey around a slice of bread would be. Oh, my God. That sounds amazing.

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0:33:40 Andrew: There are exceptions to this everything gets thrown out doctrine. And I want to walk you through that because I firmly believe there is not litigation right now. I don't know why there isn't litigation right There's litigation about Ken Cuccinelli, but there's no litigation about Chad Wolf. And I'm trying to get organizations to bring these cases.

0:34:06 Thomas: Do it? Let's try. Get out our amicus pencils. Stencils.

0:34:06 Andrew: Yeah, I Leave that as a possibility if I can't get somebody involved. Because, in fact, let me let me jump ahead. That's how these lawsuits get get brought, right? Which is the agency does something that adversely affects us. And then we sue for a declaratory judgment in federal court that says this agency action is not is ultra virus, because the acting director has no authority to be the acting director. That's how these cases get brought. So we need to find something. It's not hard to find things that the Department of Homeland Security has done that that have hurt people.

We need to find rules and regulations and then work with those plaintiffs to to develop standing to challenge the actions of everything DHS has done under Chad Wolf since, you know, for the past month and a a half since he went out of status of being in compliance with the FVRA. Even so, there are a couple of asterisks, okay? The first is some positions are exempt from the federal vacancies reform act. Now, that doesn't apply here, fortunately, right? Director of the Department of Homeland Security is not only a PAS position, but it's a PAs position that is covered by the Federal Vacancies Reform Act. So we don't have that problem. But I do want to flag that, right, there are some positions that are covered by the act. But nevertheless, their responsibilities are exempt from that enforcement provision.

0:35:48 Andrew: I know it's really, really weird. Is the case. There's a second restriction, and that is that the Vacancies Act limits temporary official's ability to perform, quote, the functions and duties of a vacant office that is a PAS office, right, subject to advice and consent. So for the purposes of the Vacancies Act, that function or duty must either be, one, something that is established by statute or regulation, and then, two, required to be performed by the applicable officer and only that officer. Let me unpack that for a minute. What that means is, if this is something that Chad Wolf does, but it's something that he could have delegated to somebody else, then that is not considered a core function or duty of his office, right?

0:36:48 Thomas: I wasn't sure when to poke in, but I was a little confused as to how this would work in practice. I mean, what kinds of things, who decides what kinds of things. This is not as though everything, they can't, and obviously a lot of stuff you just can't undo. You can't undo having arrested a bunch of people and throwing them into vans, really. I mean, I guess you could undo like a policy perhaps, but, and then also I would imagine, And I think this seems to be what you're getting at there. There might be arguments for like, well, this is something that would have happened anyway that, you know, some people down the chain of command were doing on their own. So does it make sense to undo that? So is that what this is referring to here?

0:36:49 Andrew: Yeah. Please do.

0:37:26 Andrew: That is exactly right. And that and not and not just exactly right, but for the exact right reason. Right? Exception are things that you can argue in the court would have been done, even if, you know, evil director, acting director Wolf was not there. Right. So let me give you the steel man argument for that. Right. The steel man argument for That would be tomorrow. Chad Wolf hires a new receptionist at DHS. Right? Like, does do we have to fire the receptionist? Right?

0:38:01 Thomas: Yeah.

0:38:01 Andrew: All right. Classic, you know, government official. And, you know, he's just doing his job, right? Like it's not, you know, not his fault. And, uh, you know, we, we got, we've got 30% unemployment right now. Like you know you can get a job as receptionist, you know, even to evil Chad Wolf. Like, uh, you know, take your job. Um, and so yeah, like, obviously even if Chad Wolf is the guy who does the hiring, it's no hard to say, okay, but that's a delegable function.

Like that's not something Chad Wolf had had to do. It's something he could have sloughed off to anybody in the department and they would have hired, you know, Joe to be the, uh, the receptionist anyway. So Joe gets to stay on his job. So, so if hiring Joe is delegable and announcing a policy on sending pending plainclothes, uniformed DHS personnel into Portland to go crack skulls and throw people into vans is clearly non-delegable. Where's the line between the two? The answer to that is, as you might suspect, we don't know. The reason that we don't know is because the FVRA is only 20 years old and it doesn't get litigated very often.

0:38:02 Thomas: Yeah. Yeah.

0:39:20 Andrew: It hasn't been abused in this way before. And this is part of the evil genius of the Trump administration, right, that they They know that they can have OLC, right? That is the Office of Legal Counsel, a division within Bill Barr's Department of Justice, you know, now staffed entirely by sycophants writing indefensible letters, right. And that's all they are is letters.

0:39:35 Thomas: Well, and this is where we get

0:39:42 Andrew: Letters.

0:39:42 Thomas: The opinion. Well, you can't indict a sitting president no matter what. And, and then people see that and they think that means that's like some ironclad constitutional principle, right?

0:39:42 Andrew: Yeah, Yeah, Yeah, it means a lawyer hired by the guy who was loyal to the president wrote was like now Yeah, why don't you write me a memo on whether our boss can be right? Like, yeah, um, and that would be something that you should be suspicious of under the best of circumstances, circumstances, and obviously, uh, under the Bill Bar of circumstances.

0:39:57 Thomas: Wrote a memo. We're not quite there we're not quite in the best of circumstances.

0:40:14 Andrew: Yeah. Yeah. Exactly, um, you're looking at kind of scant case law, right? So, for example, there is one, uh, district court, right, federal trial court, that said there are two different plausible ways to interpret the definition of what counts as functions and duties, right? Functions and and duties could mean all of the responsibilities that are expressly assigned only to one particular office, right? That's one way to, that would be the broad definition. The narrow definition would be a more limited category of duties that are not only, that first part, right, not only assigned to one office, but also assigned to one office and expressly may not be delegated to anybody else, right. And that that would be how we would understand the text of the duties, quote, required to be performed by that particular officer.

0:40:16 Thomas: Yeah.

0:41:07 Andrew: And the court then went to say we have no guidance as to whether the broad definition or the narrow definition is correct. Right. This was a this was a discussion in dicta. It was not crucial to the holding. So answer is we don't know. And as you point out, it is why Homeland Security is in the process of doing things that are super duper hard to undo, right? They're not promulgating new rules and regulations. Many of those rules and regs, I believe there will be litigation. And I think those regs will get overturned by a court in 2021, in 2022. that doesn't help you if you're being seized on the street right now. So Right. This was part of remember, we ended kind of with the cliffhanger to to last week's episode on the remedies available to people in Portland.

0:41:58 Andrew: And I said, all of this might get undone. This is how that would happen. When I add, I'm going to kind of conclude with, is not just far-fetched, right? There is pending litigation in which a district court has done exactly what I have described with respect to the number two guy under Chad Wolf, that is the aforementioned Ken Cuccinelli, Chad Wolves deputy, right now acting deputy, associate, I like, there aren't even titles to describe these people anymore. But

0:42:34 Thomas: Deputy evil doer, I guess. Yes.

0:42:35 Andrew: Yeah, yeah, that, you know, the shark with the laser beam on his head, right, um, is uh is Ken, Ken Cuccinelli, I will link a Talking Points Memo. Ken Cuccinelli is as bad as Chad Wolf and then some. And earlier this year, he implemented certain directives regarding how DHS was going to treat asylum claims. Right. And what happened was exactly what I described, that was going up, right, which was RAICES, R-A-I-C-E-S. The, the interest group had standing, right, on behalf of its members and other individuals, and filed a declaratory judgment lawsuit in the U.S. District Court for the District of Columbia saying, hey, all of these things that Ken Cuccinelli is doing, they're invalid because, because he is as an acting official in contravention of the Federal Vacancies Reform Act.

They didn't follow the appropriate procedures. And the district court said yes. Yes, they said, yeah, we agree. Ken Cuccinelli is not validly in office, and therefore the policies that he's proclaimed that are core to his office, which include the policy being challenged by RAICES, the asylum directives, are invalid. They are void, ab initio, they may not take effect. Now, the federal government has appealed that to the D.C. Circuit. Um, that is pending. They have not even transmitted the record in this case yet.

0:44:18 Andrew: Right. So the, the questions pending before the DC circuit are number one, whether Ken Cuccinelli was validly serving as the acting director of the USCIS. That is the sub position that he has within the, the Department of Homeland Security at the time he issued the policies at issue. And if so, whether the district court erred in concluding that those policies had to be set aside and deeming lacking in force and effect. So in other words, the government intends to litigate both that Ken Cuccinelli is validly in his job. I think they're going to lose that one. And then they intend to litdigate the delegable question. Question and, and we're going to continue to follow that case. It, like I said, uh, the record hasn't been transmitted.

0:45:06 Andrew: It's, it has not been expedited. Um, it will not be argued until late 2020 or 2021, so, you know, those of you on Team, uh, the wheels of justice churn slowly, like, that's a fair, fair argument, uh, but, uh, but we will continue to follow because there is a non-zero chance that the DC Circuit says everything Ken Cuccinelli has done, uh, is, uh, improper.

0:45:32 Thomas: So would that be any faster than just winning in November and

0:45:36 Andrew: And It might not. But remember that part of what we're doing is having multiple fronts on the way Trump has dismantled this government that don't all have to flow through the same bottleneck. When Joe Biden takes off. Yeah. But Joe Biden, Biden is not going to issue a blanket directive that says every executive order issued by Donald Trump is hereby declared, you know, is hereby overall. He could, but but he's not going to want to do that, because there are certain things like, you know, continuing states of emergency, you know, probably all the like COVID directives, right? Like, you're not going going to want to overturn that. So they're going to need to do it on a case by case basis. And this is a way of of assuring that, you things don't fall through the cracks.

0:46:25 Andrew: But but yes, right. Like you could wait for a new Democratic president to come in, clean house and have DHS issue new directives, repealing all of their old directives. That's true. It's in my my view, it's better to have kind of multiple beachheads. So, yep,

0:46:40 Thomas: Sure. Yeah. I just genuinely don't know because of, you know, as you say, the wheels of justice do turn slowly. I never know like what's actually going to be faster, you know. But it makes sense that when we get a real president, we want to do things in the right way. We want to not, not be like Trump and and have our policies struck down over and over because they were done so ineptly. Um, so yeah, I imagine it will take time to actually fix things in in 2021, but, uh, yeah, so okay, so there could be another way of doing this a little more efficiently? Well, that's cool. What a one weird trick that actually works. Those are the best.

0:47:16 Andrew: Exactly. We'll see.

0:47:22 Thomas: Maybe Possibly. Possibly.

0:47:22 Andrew: Yeah. Yeah.

0:47:24 Clip: He who questions training, only trains himself at asking questions. What?

0:47:32 Thomas: And, you know, it's been a while since we've done a listener question segment. I think now that I realize, I mean, it is basically every episode is questions we are all asking all the time. Back in the day, it used to be like, oh, someone has a legal question. And now it is the entire nation is like, why are people being thrown into unmarked vans. But, as a little bit of a throwback, here is a question from patron... Hadron, which I don't know if that's the collider asking the question or what, but...

0:48:02 Andrew: I barely even know her.

0:48:06 Thomas: I want to support the current civil movements regarding police reform and racial injustice in America. Where can I find organizations to help with legal fees or other support for people caught up in the riot police legal machine? Yeah, okay, good question. What do you think, Andrew? Right.

0:48:24 Andrew: Yeah, I'm curious if you have any thoughts on that too. To me, two immediate organizations Come to mind. We've mentioned them both in this episode. And the fact that they're large doesn't make them, you know, sort of not responsive to your question. And those are the ACLU explicitly. Right. And then on issues regarding Customs, Border Patrol, DHS, immigration issues, RAICES, R-A-I-C-E-S. I'm sure my high school Spanish is not giving that the proper emphasis and inflection.

0:48:45 Thomas: Yeah.

0:49:04 Thomas: So.

0:49:04 Andrew: That's that's that's not to say that there aren't other organizations that are that are doing good during this crisis that are, you know, maybe pursuing impact litigation are lobbying or otherwise out there. Right. Like I am a big believer in the Public Justice Center, for example, a big believer in in La Raza and Casa in your specific state, Casa de Maryland. I know some folks there. But the precise answer on who's helping out with people in involved in protests, those would be my go to. Thomas, any any thoughts on your end?

0:49:41 Thomas: So yeah, I was kind of focused a little more in on, like, the bail funds for protesters type thing, um, because obviously, I mean, there's... there are a million different ways you could go, there are million different organizations to donate to that may, uh, do a lot of good. It's it's, you know, it's really hard to say, like, here's the one thing you should do.

I agree with with your picks for sure, Andrew, um, if you want to focus in on bail funds, excuse are kind of case by case, so you'd want to look for an area and scope out, you know, there isn't that, I'm finding, there's not really like a nationwide bail fund that that I'm seeing, necessarily, maybe it exists, but those tend to be more like local to a specific area, so there's like Chicago one.

There's a, you know, there's even a NorCal one I found, uh, on Act Blue, which is a place that I tend to trust for donating stuff, 'cause who has the time to fully vet everything all the time when you're trying to give money. I sort of trust Act Blue, uh, know, to have done some vetting, and there's, there's a bail fund they have, uh, that I can, I can try to put in the show notes, that divides up your contribution between multiple, um, groups.

This was done by Progressives Everywhere is the is the group, and, uh, it's it's like 11 or 13 different, I think it's 13 different groups in different areas, so Philadelphia, Columbus, uh, Brooklyn, all these different places, uh, and you can donate there and it'll go to all those bail funds equally, but I'd also recommend, like, it, if you're in a specific area, do your best to look for a bail fund that seems legit, you know, know, to that in your area. Um, because I'm sure donating more locally is going to do more, uh, good.

0:50:31 Andrew: Right.

0:51:16 Thomas: Um. Not, yeah, Or if you're like, oh, I want to, uh. You know, things look horrible in this specific place. I would, you know, I, I don't want to piss anyone off, but I would not focus on Portland so much because, you know, that's just me. You can focus on whatever you want, but Portland is like the whitest city in the country. Like, I think it it feels a little bit like privilege to focus in on this one city where people are getting noticed because it's a lot of white people taking part in it versus these other areas where black people have been protesting for years. So that's just my personal view, like maybe focus in somewhere else in a state or a city where these are longstanding issues that go back a long way. And maybe people who, by the way, probably need the resources more.

0:51:17 Andrew: That is such an awesome idea.

0:52:06 Thomas: So maybe focus in on other areas. That's just my take. But there are so many ways to do good. And one of the best ones is just to vote and make sure. And if you want to fund, for example, there's the Florida, you to try to pay off ex-felons fees and all that. There's so many different ways.

0:52:23 Andrew: Those are great ideas. And I'm glad you you weighed in on this.

0:52:28 Clip: And thank you, Let's go!

0:52:30 Thomas: Why don't we thank our Hall of Famers, our all-time greats here on patreon.com/law? We are, this is Top Patron Tuesday, so, uh, I think it's your turn to go first, Andrew.

0:52:41 Andrew: All right. Thank you to Great Dooku Tree, Thomas Kleberg, Bradford Keaty, Mary Perez, and Schmeckel. Proceed on your way to oblivion, fantastic Unicron quote there. Amicus Flinch, Dan from Deerfield, no shortage addicted in my briefs. My intro to law cases are real property. 2020 just keeps giving it.

0:52:57 Thomas: Hey. Real property is easy, I nailed it, huh?

0:53:04 Andrew: It's Five, six, seven, open up them pearly gates, ain't no time to wonder why, whoopee, we're all gonna die. I'm not sure what that's reference to, but uh, okay. I'm Sure it is. Shut up and take my money, William Drew Collins, Bob Newhouse, Sassy Italy Tours decided Devin Nunes was too stupid for one of our wine tours. That is amazing. Also, Sassy Italy Towers, they truly live up to their name on Twitter. They are sassy, so you should give them a follow. Craig Crimer, imagine the George Carlin 2020 album. Yeah, no kidding. Give me daily episodes or give me death. That would be my literal death at this point, but there's a way. There's a ways to get there, but you

0:53:13 Thomas: I'm Sure, it's a great reference there.

0:53:50 Thomas: Is, yeah.

0:53:51 Andrew: Got to share, are, yeah, uh, you gotta, you gotta, we gotta, we gotta grow the show. If we, if we basically double our audience, uh, I'll, uh, I'l put the law practice aside, we'll do this daily, man.

0:54:02 Thomas: He Will give up basically more or less his law practice for you folks.

0:54:05 Andrew: I mean not, you know, not not yeah, but there you go. If you break the chain, though, then, uh, a witch's curse will settle on you.

0:54:06 Thomas: Yeah. Everybody tell nine friends about the show and then maybe, yeah,

0:54:19 Andrew: Susan, are you listening? I guess murder hornets were just a filler episode. Cheeky Breaky, TheMulletShirt.com, button-down dress shirts with awesome designs on the back. Check them out. The U.S. has turned into a country I don't like or recognize. Vote to take back our country. Mike Hall, Yolam Tom, Hornbook Law is a primer. That's pronounced primer, you ninny. It's not paint. Walking the line between legal advice and legal education since 2016. No comment. Samuel Bland, fly like a hot dog, freedom eagle. I will tell you, I say that at least once a week, um, angry Mac face wishing for an OA official cookbook. Yeah, cookbooks are dead, man, like, I did but, but, but, book about cooking book about cooking, maybe, oh, oh

0:54:59 Thomas: That'd be fun, though. Plus I can throw in a few, like, you know, sort of like I did with my brief, you know, I could throw in the recipe probably.

0:55:09 Andrew: That would be amazing.

0:55:10 Thomas: Just be cereal.

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0:55:49 Thomas: You gotta update your name that

0:55:52 Andrew: Paid for by the Lionel Hutz for SCOTUS committee. He's more qualified than Brett Kavanaugh anyway. Haney, Maxwell, Benghazi, and the buttery males. Hey, Rocky, watch me pull an executive order out of my ass. That trick never works. Yikes. They better get another ass. My Bullwinkle, I think, is worse than my Rocky impersonation there. But anyway, in really

0:56:13 Thomas: Is that, is, is before my time. I know nothing about Rocky and Bullwinkle.

0:56:16 Andrew: Rocky and Bullw ankle, you didn't watch it. I mean, it's before my time, too. But like, I would watch it in. Yeah.

0:56:19 Thomas: Oh, okay. No, I've never seen anything about

0:56:21 Andrew: Oh, wow. Wow. In Illinois, we pronounce it Illinois. When will Thomas take the real bar exam? You know, we've actually answered that in a Q&A. You can at OA Wiki and I'm sure Teresa will tell you exactly what.

0:56:31 Thomas: It. Hey, if they change the rules so that anyone can just waltz in and take it, I'll do it.

0:56:33 Andrew: Yeah. Yeah. That Chris Wallace makes Steve King an author again. We've done that. Pulling another chair up to the big kids table. Well, welcome, Murray Gregerson. The Supreme Court's chicanery makes Saul Goodman look like an amateur. Sure, true. The venerable Richard Milhouse Nixon, good friend of the show. Ian Buckley, donate to restore Florida voting rights at wegotthevote.org slash fines and fees. I'm going to repeat that. That is we, W-E-G-O-T-T H-E V-O T-E dot O-R-G slash F-I-N-E S-A-N D-F-E E-S. So

0:57:11 Thomas: WeGottheVote dot org slash fines and fees. That's probably the one I was thinking of. Do that.

0:57:15 Andrew: Yep. Give to modest needs dot org, give to modest us needs.org asylum is legal. Save DACA. Vote blue, dump Trump. Jake Braun, let's have a Sherman statue in Atlanta with an eternal flame. Christopher Brown, hey now, you're an all-star, get your vote on. Get Sane. Uh, Lawful Copter says confederate monuments might be their heritage, but destroying the Confederacy is my heritage. Patreon, did you actually save my patron name this time? Yes, it did. Can we get cert to appeal all of Thomas's incorrect T3BE answers? The best garbage state on my mind.

0:57:45 Andrew: Brad in Texas, Rob M., there's a goat, why is there a goat? Zirkle, I was very, very drunk when I changed my patron last week, my name this week is no better. Well, it's also time to change it again, man. Andrew Seidel's butt knows that it's pronounced amicus briefs. He should know. No, he wears them every day. Odin wants to defund the Paw Patrol, I want more briefs. Polly Hernandez, thanks to OA I got my law GED. My sincerely held religious beliefs preclude covering chemotherapy for conservatives. Emily Rainbow Spence, stocking up on lung injectable bleach. Please keep our patron names socially distanced by at least six spaces, especially this next one, who is Jason Kopas. Terry Cannon, Republicans are fascist. Hot spear found rule of law in disused lavatory beneath the sign saying beware of the leopard.

0:57:44 Thomas: That

0:58:33 Andrew: Fantastic, uh, Hitchhiker's reference there, and Taft's son lost the 1952 primary to Eisenhower. It's not funny, but I think that's the joke they were going for.

0:58:42 Thomas: Is 1,000% not the joke they're going for. I would bet my life that that is not at all what they're going for, but appreciate the effort.

0:58:42 Andrew: Oh. I. Thought. Yeah.

0:58:52 Thomas: But. That is not, you don't make reference to the Taft suite, and you're not actually referring to the president Taft, you're referring to his son, who lost a primary, no, sorry, that's not it, it's just not it, anyway, listen to the uh lot awful. Movies recently so that you can know.

0:59:06 Andrew: That. Yeah. So.

0:59:08 Thomas: What we're talking about, yeah.

0:59:09 Andrew: You know what we're talking about, legal action with very.

0:59:12 Andrew: Little law. And definitely no action, all right, Thomas, you take it away.

0:59:12 Thomas: All. Right. Take donation advice from a podcast, FFRF, EF, there's a lot of donation advice in this show, ACLU, modest needs, an hour, damn, Patreon, I don't know if they're speaking for us or what, but either way, Tulsa rally ticket holder, Amanda Hug and Kiss, Nate Drex, Darth Mandy Pants, make, make Jeoff Sessions attorney general again, oh God, no, well, no, yeah, that has, that one is all kinds of weird, I don't like it, the guy who had access to all of Twitter and only made 100k of bitcoin is the worst criminal ever, that's true, 13th century. Save the USPS. They are essential for small business. Volunteer for your candidate today and take back your government.

1:00:01 Thomas: Let's send unsolicited dicta pics to Naomi Rao. Wash your hands and vote for Joe Biden. Thinking about bottle shakers and everything killers. Civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Value Free Radio. John Bilderbeck. Keep making good trouble. R.I.P. John Lewis. Oh, good point. Shoot, we didn't even mention that. Yeah, R.A.P., John Lewis, that's a tough one. Rename that bridge, damn it. John Louis Bridge. Okay. Antifa assistant to the regional manager for Southern Ohio. Andrea the arbitrary and capricious. You'll have to speak up, I'm wearing a towel. Moot would be my favorite word if it weren't so redundant. Superior may be going too far, but I'd like a show comparing civil law versus common law systems. Eric Alsman, me fail president. I think that's un-possible.

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1:01:36 Thomas: Stay at home, lots of dicta jokes, stay the F at home, them, thank you, ah, breath, ah, yeah, Chad T, Anonymous, the, the Sarrah Connor Chronicles is the best Terminator content that isn't T2, WordOrigins.org, your source for legal terms from 13th century Saxony, Amicus Boxer, closing concessions, don't stand so close to me, 20, but, but for a cause, charity drive, Liz Weeks, Adam Costa, me Grimlock kick butt, but me Grimlock need new strategy, J Alden Waltz. Oh, all right, well, that's the show, thanks for listening, goodbye. Following gratuitous death escrows world tour, big easy blasphemy, not enough judges overrule objections with reptile kicks, the yodeler is preparing for a fiery re-entry.

1:02:22 Thomas: Ronda 2020, because why the F not. Clown Hornet, I started drinking again, Malika Chandler, Poot Quack and Tush, Soggy Pants, Matthew Vernon, adopt a homeless pet and oppose the cloning and ear docking. David in Brooklyn, so Mr. Bond, what would you say you do here, don't take legal advice from Mr. Monstrosity, attorney at law, Heather L, Jeremiah's Fancy Microwave Emporium, Ian and Ali, Danny Rosari, Eli Bosnick, Sam Danao, Theresa Gomez, Sam Buck, Mitchell, no commute, so behind on podcasts, staying in the William Howard Taft hotel room of life, yep, Alexandra Chalupa aka Natasha Crunchwrap, I agree with that 100%, the return of the famous I agree with that one percent name, and also Conrad Michaels, thanks so much Conrad, the absolute ruler of the patrons, but you know, try to, try to displace Conrad, do your best.

1:03:13 Andrew: Thank you all so much for being our hall of fame patrons.

1:03:17 Thomas: Right, well, that's our show, thanks so much for listening and pledging and sharing and all that good stuff, and we'll see you on Friday.

1:03:24 Clip: He's not even a lawyer and he's kicking your ass.

1:03:57 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.