OA421: Trump Evades Justice on Emoluments in 1st Term

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments, this is episode 421, and, oh wait, no, nevermind, every single episode in the 420 range, but no, how's it going, I'm Thomas, that's Andrew, how you doing Andrew?

0:01:23 Andrew: Nice.

0:01:32 Andrew: I'm doing fantastic, Thomas. How are you?

0:01:34 Thomas: Doing well, can't wait to hear about, as was promised late last episode, every single crime Donald Trump has ever committed is here in this episode, here we go, in however however many minutes. Is that what you promised?

0:01:48 Andrew: No, it's not. That's not at all. Not at all what I promise, but that's OK.

0:01:51 Thomas: Yeah. Well, that'll have to wait, for we've got emoluments updates and Mueller report updates. It's the gift that keeps on kind of giving.

0:02:04 Thomas: So I don't even see any announcements. How can we do a show with no announcements, Andrew? Make one up.

0:02:09 Andrew: Of. Well, we we did this, so that should count.

0:02:10 Thomas: Okay. Well, We have a lot of movies coming at you real soon. How's that for put that in your announcement pipe and smoke it? That'll be coming at you real so, it's good reason to go on Patreon.com/law. Those are always so much fun and fine. All right, that's all I have, I guess we'll get on to the show. Now.

0:02:15 Andrew: Yeah.

0:02:30 Clip: The law breaking down

0:02:37 Thomas: Is this a final thing on emoluments? Maybe question mark that.

0:02:40 Andrew: Yeah, I think probably it is. So it's

0:02:44 Thomas: Doesn't sound good, actually. That sounds bad. Is it bad or good? Do

0:02:47 Andrew: Not good. It isn't not good – I mean, let me skip ahead to the punchline. All three emoluments clause cases were filed in 2017, right? They were filed as soon as you could possibly have done anything about it. And as we alluded to in last episode, on September the 9th, the Department of Justice filed three briefs in the Supreme Court. One was an opposition to cert and two were petitions for cert all filed simultaneously. I guess they were just like, there were like, yeah, we've got to clear that deck out of these, you know, emoluments clause cases. But the reality is that the Supreme Court is unlikely to rule on any of these petitions before the November election.

0:03:34 Andrew: And we're going to talk about the implications of that. But I want you to think about what this means, right? Right. Like I have said, the wheels of justice churn slowly. An entire presidential administration is probably too slowly for the wheels of justice to be churning. I think they do both. Right.

0:03:51 Thomas: They churn, or do they turn? Okay. I thought it was turned, but Churning sounds like you're baking something, or like you know. Oh.

0:03:56 Andrew: They. Yeah. Butter. Right? I'm thinking like the thing you turned to make butter in an old.

0:04:02 Thomas: The the the weird paddly thingy of justice churns slowly to make a justice butter, which is also butter emails. We could tie that in somehow.

0:04:04 Andrew: Yeah, yes. Churns, churns slowly. Yeah well. We could. Yeah. However, I'm butchering the phrase. This is too slow. And I'm going to explain why. And as always, that has its roots in Donald Trump's systematic desire to destroy, you know, all norms of the rule of law. So and look like I say that with a slight sarcasm, but but only slightly. Right. Like what he has done in these cases is illustrative of his overall litigation strategy. But it is something that no prior president has ever done. And it is Something that I believe every subsequent president will do unless we do something about it. So with all that in mind, let's get into our status on emoluments cases.

0:04:58 Andrew: I owe a debt of gratitude to our friend Seth Barrett Tillman, who will enjoy the shout out, but will probably not enjoy the substance of this segment. But as we point out, you know, if if he didn't hear our bit with Judge Sugarman, we respect his his intellect and integrity, if not always or, you know, ever agree on on politics. Here are the three emoluments clause cases. Here's the update on the status. Here's some weirdness with it. And and here's what's happening next. So case number one is Blumenthal versus Trump. Right. That's Senator Blumenthal. This was filed, as were all of these within the first year. This was filed in fact, a few months after Trump got into office and it was filed by a group of Democratic senators then and now in the minority.

0:05:07 Thomas: Just

0:05:54 Andrew: And they moved for injunctive relief on emoluments arguments, they won, uh, at the district court level, uh, and then, uh, that was appealed by Donald Trump to the U.S. Court of Appeals for the D.C. Circuit, uh, where they lost, uh, on a 3-0, um, and uh, there were two uh Republican justices on the panel, but uh, Judge Tatel, um, the Clinton appointee, uh, did did not dissent. And we covered this on episode 361.

0:06:30 Andrew: I was not surprised, but I was surprised when they won. And when I say won, I don't mean won as in got an award on the merits from the trial court, right, saying that the president had violated the emoluments clause. The way all of of these cases go, because they are novel and unprecedented, is that there is a filing by interested parties, and then Donald Trump moves to dismiss on the grounds variously that the court lacks jurisdiction, that the parties lack standing, that there was not a justiciable claim or controversy, all of the things that we have talked about. So when I say win at the trial court level, I mean, survived a motion to dismiss.

0:07:20 Andrew: And that's what happened. There was then an interlocutory appeal up to the D.C. Circuit and the D.C. Circuit went the other way. And as we said on the show, that ruling was February 7th. That gave the Blumenthal plaintiffs the opportunity either to petition for rehearing en banc or to petition for cert to the Supreme Court. I correctly predicted that they would not move for a rehearing en banc, because there is clear Supreme Court precedent from a case from 1997. And again, you want to hear the breakdown on that case.

0:08:05 Andrew: That's episode 361. So there was really no reason to want to get the whole D.C. Circuit to hear The Case. Like, I think the D.C. Circuit correctly applied existing precedent. The question is, should the Supreme Court revisit that precedent in light of the unique case that the presidency requires? Right. So the prior precedent basically says if you're a minority of the legislature, you don't have standing for being deprived of your right to vote on a piece of legislation. And the reason for that is you're in the minority. You don't have like you might not vote on anything.

0:08:49 Thomas: Restating what you just said, right?

0:08:52 Andrew: Yeah. Well, that in other words, that you haven't suffered a cognizable injury. Right. That that you have to there has to actually be the potential that there could be a vote. Argument, and I think it's decent one, that distinguishes it in the Emoluments Clause cases, well, suppose a president is elected and, right, the opposition party is always in the minority, right? Right. So in other words, when the Democrats retook the House, right, that Congress has to approve emoluments clause cases. We talked about how Nancy Pelosi could refile. Right. That the I talked about Senator Blumenthal, but it was joined by Democratic House minority members as well. And remember, in 2017, Democrats were a minority in both houses. So that the standing issue could be mooted by a subsequently filed lawsuit that says, oh, hey, look like we we have the majority in the House.

0:08:56 Thomas: Yeah, yeah.

0:09:48 Andrew: Now, we absolutely would want to vote and would deny the president the opportunity to receive these emoluments. We're not getting a chance to vote on that. And that's a real thing. And that would absolutely Correct the defects in this case. Of course, it's kind of late. And in this case took four years to move. So as you and I both opined at episode 361, I think Nancy Pelosi should have filed an additional lawsuit anyway, but that's why she didn't. And you know, that kind of dovetails with our discussion from last last episode, right? Like part of their strategy is to grind you down. And I don't think you should be ground up, right. I think the rule of law matters. But in any event, Democrats in Congress did not do that.

0:10:33 Andrew: So they're left with a procedural posture in this case, which is bad, but presents a potentially interesting issue to the Supreme Court of, suppose a president is elected and during that that term the opposition party is always in the minority in both houses, essentially under the Blumenthal v. Trump ruling, you could never challenge anything the president does that needs congressional approval, and that seems wrong, right? Like, that just seems intuitively like that can't be the law. And So, so that's that case, that's the interesting question.

That's why I predicted that if the Blumenthal plaintiffs did anything, they would either drop the case or they would appeal to the Supreme Court, and they appealed directly to the Supreme Court. They did not petition for en banc review, because, again, we're on COVID time. So February 7, five months after that was when the Blumenthal plaintiffs petitioned the Supreme Court. The cert petition was then due. The opposition to the cert petition was due September 9th by the DOJ. They filed that. A pin in it because, yes, the Supreme Court has extended the deadline for filing a cert petition to 150 days because of COVID. But the Blumenthal plaintiffs could have filed this earlier.

0:11:09 Thomas: No.

0:11:57 Andrew: They chose not to. And I don't know why that is. All right. That's filing number one that is currently pending before the Supreme Court. And again, the Supreme court might not take this, right? The Supreme court could just say, we think the DC circuit was correct in its application of existing precedent, or it could say nothing whatsoever, right. We don't know. That is pending. The second emoluments clause case is D.C. and Maryland versus Trump. We last discussed this in episode 386. This is the lawsuit brought by our buddy Brian Frosch, attorney general of the state of Maryland, and by the attorney general of the District of Columbia. And this is specifically about Donald Trump preferentially directing foreign visitors to Trump businesses, which then deprives the District of Columbia and the state of Maryland of revenues that it could get if they patronized other businesses.

0:12:56 Andrew: That lawsuit has a complicated procedural history that we have discussed at substantial length on the show. It initially sued the president in his official capacity as the president for harming the District of Columbia and the state of Maryland in depriving those jurisdictions of tax revenues. It was subsequently amended to assert a claim against the president, in his individual capacity, which the president then moved to dismiss on the absolute immunity defense, which we've discussed is nonsense. There have been lots of pleadings back and forth to narrow the scope of the litigation. But essentially, let me summarize.

0:13:41 Andrew: A, first, the plaintiffs won at the district court level in the U.S. District Court for the District of Maryland in front of Judge Messitte on the official capacity suit. And again, when I say won, what I mean is survived a motion to dismiss. That case was narrowed down to exclude all of the allegations about Donald Trump related to New York and Florida and everywhere else, and is solely about the Trump International Hotel in Washington, D.C., of which there is indisputable evidence, there are mountains of evidence that Donald Trump directs foreign leaders to stay at the Trump International Hotel when they come visit the president.

0:14:31 Andrew: That is a clear I mean, like that is just core emoluments clause violation. So after that, we said the very first time when this one we said, look, like, here's the difference between winning and losing on a motion to dismiss. Dismiss. If If You Win on a Motion to Dismiss, then the case is over, right? It's dismissed. You can immediately appeal it and that's what starts the appellate litigation process. But when you lose on a motion to dismiss, that just means the case goes forward, right. That means the complaint validly states a cause of action. Right. And so we said, gosh, we were so naive. I was so naive back in 2018. This case is going forward. There will be discovery.

0:15:17 Andrew: And part of the discovery, right, could include Trump's taxes. We were super excited about all of this. I dismissed, a as a, as a thought exercise, that the president would try to certify an interlocutory appeal now, which is uh what the president did, uh but I said that if if he tried, uh he would probably lose, which is in fact what happened. Right, so what's an interlockatory appeal? An interlacatory appeal is, right, while it is speaking, that's the Latin root, but but it basically is, yes, yes, we know that ordinarily this lawsuit just goes forward. But you should allow us to appeal on this particular issue. You should stay the lawsuit, don't have any discovery, and allow us appeal this particular legal issue.

0:16:04 Andrew: And here are the standards, right? The standard is, and this is 28 U.S.C. 1292b, that if something is otherwise not appealable, but the district court, quote, quote, shall be of the opinion that such order, granting an interlocutory appeal, involves a controlling question of law as to whether there is substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation. So got that? Like, what that's saying is, ordinarily, Yeah, well, that's I thought maybe not. So let me try and break it down. Ordinarily, you lose on a motion to dismiss. You just go forward. You litigate out the case. But in rare cases, you might be able to persuade the court, hey, look, I know you said that we lose on our motion to dismiss. We respect that judge. But you got to admit it's a close call, right? There is at least an argument that we might be right. And if we're right, then this case should be dismissed. And so you

0:16:40 Thomas: Yeah. How

0:17:13 Andrew: Should certify.

0:17:13 Thomas: Is that Isn't this very redundant? Like, how, what wouldn't that happen every time? I don't know, this seems weird. Like, you You lost the motion, but what if we didn't lose it? But court!

0:17:22 Andrew: Yeah. Well, but right. And that's why the standard is substantial ground for difference of opinion, because usually and lawyers don't often apply for an interlocutory appeal. Right. Because of the exact because of exactly what you just described. Right. Because if courts routinely awarded interlocatory appeals, it would just be the same as saying you can appeal everything. Right.

0:17:48 Thomas: Yeah.

0:17:48 Andrew: Like, yeah, you just asked me. I said no. Well, please. Pretty please. You know, with a cherry on top. No. Like we said no, we meant no. But there are occasional cases. And again, remember the general division of labor in the federal courts. Trial courts decide facts. Appellate courts decide law. Right. And, again, trial courts apply the facts to the laws. But but but when you think about the job of a judge, that's generally how they think about their own jobs. Right. So appellate courts don't like to revisit the facts. And And trial courts are sometimes candid about, well, look, the law here is not clear and we're doing our best.

0:18:35 Andrew: We think it's probably X. You know, we incline more towards the plaintiff than the defendant that the law says X. But, you know, it's not a crazy argument that the loss is not X. And in those cases, very, very rare cases, a court might say, you know what, we are going to give you an interlocutory appeal. We agree. This was a super close question. We did our best. But you know What, there's not going to be substantial harm to the plaintiff. If we put the case on hold for a couple months, it might make the whole case go away. And who knows, maybe we're wrong. We'll let you argue in front of the DC circuit. And if we're wrong, or this case in front of the Fourth Circuit. And if we're wrong, we're wrong. That's on us. Judge Messitte did not do that in this case.

0:19:21 Andrew: Judge Messitte said, no, you don't get an interlocutory appeal. Get on with the discovery part. And here's what Trump did that I alluded to at the beginning of the show that I think is dangerous in the precedent that it sets. It is, is the subject of reform that nobody is talking about, but is part of my proposed Judiciary Act of 2021 foreshadowing. And, and it is this, after Trump lost on his motion for an interlocutory appeal, he then went to the D.C. Circuit anyway with a petition for mandamus. And we've seen this over and over and over again, we've discussed it most recently in the Michael Flynn case, he went to the D.C.

0:20:09 Andrew: Circuit and said, I want you to mandamus Judge Messitte and tell him, I keep saying D.K. Circuit, he went the Fourth Circuit, it's because both Maryland and the District of Columbia are involved at the state court level, so you don't have to go back and edit out, I will own up to my malapropisms here, this went up to the Fourth Circuit, it was in the district court for the District of Maryland, went up to the Fourth Circuit.

0:20:32 Thomas: I was politely not correcting you,

0:20:34 Andrew: I appreciate that. That's kind of you. So yeah. So Trump went to the Fourth Circuit anyway and said, mandamus that guy, make him do it, make him either grant an interlocutory appeal, back up to you guys, or dismiss out the case. And again, the reason you do that from a strategic perspective is it's a three judge panel. Maybe you've appointed two of the three judges who show up on your panel, or maybe a prior Republican president has appointed two or three people that show up and maybe they'll decide that they're more favorable towards your case. And that is, in fact, exactly what happened. So the, again, the panel at the Fourth Circuit granted mandamus and said, yep, absolutely.

0:20:34 Thomas: Just for the record.

0:21:24 Andrew: Go back to give him a right of interlocutory appeal. And I should also add this is a rabbit trail that's not worth going down. The remember, I said that the lawsuit was also amended to make allegations against Donald Trump in his individual capacity, right? That is, Donald Trump as a person got money out of this. And the individual capacity lawsuit is about him giving back the money.

0:21:47 Thomas: So wait, he got another court to mandamus. I thought you had to have no discretion. Discretion, uh,

0:21:53 Andrew: You'd think that's why the decision was insane. You have to have no discretion and no other right of relief. And in these kinds of cases, you have discretion and you have other But nevertheless, it does not stop politically motivated courts from granting from granting holy inappropriate mandamus review. So they said, yes, you must grant an interlocutory appeal on the official capacity lawsuit. And by the way, with respect to the individual capacity lawsuit, what Judge Maseet said was, OK, we're going to consider that in a separate ruling. This is only about the official capacity. And they hung on to it for seven months. Now, look, seven months is a long time, but I have had motions to dismiss go. I've had the court sit on them for a year or more.

0:21:58 Thomas: I'm

0:22:44 Andrew: Right. So there is nothing particularly untoward about not ruling in seven months yet.

0:22:49 Thomas: Curious how your judicial reform act is going to stop courts from just ruling the wrong way. Like, isn't that already the law? If, if it's already like, well, they're just doing the wrong thing, are we going to print another piece of paper that says don't do the wrong thing? Oh.

0:23:05 Andrew: What we're going to do is change the rules regarding mandamus, but that's Going to have to wait for another episode, so. So here's what happened. Um, district court says no interlocutory appeal. Uh, Trump goes to the Fourth Circuit and says make them give me an interlocutory appeal on the official capacity lawsuit and make them rule on the individual capacity lawsuit, lawsuit. And the Fourth Circuit did that, which is, again, bizarre, right? And particularly bizarre on the individual capacity lawsuit, because, like I said, I've had cases sit way longer than seven months. So nonsense mandamus claims. But nevertheless, Trump won. So the plaintiffs have to do the only thing you can do in that circumstance, which his petition for rehearing en banc, right?

0:23:09 Thomas: Okay, yep. Yeah.

0:23:59 Andrew: You go to the entire Fourth Circuit and you say, I don't know what's up with these chowder heads over here, but can you clean this up? And that was, of course, granted. And of course the entire en banc Fourth Circuit reversed. We discussed that briefly in episode 386 on May 14th of 2020, right. So in other words, the entire fourth circuit was like, yeah, yeah, we have no idea what you're talking about. Obviously, the president doesn't get mandamus relief here, obviously. And they issued two separate rulings, one covering the individual capacity lawsuit and one coveringthe official capacity lawsuit. And then again, under the 150 day rule, the Department of Justice, on behalf of Donald Trump, had until October 14th to petition petitioned SCOTUS for cert.

0:24:49 Andrew: And that was the second thing they filed yesterday. So they filed that, you know, a month and a week, five weeks early, uh, again. I guess because they wanted September 9th to be emoluments day at the department of justice. So, uh so that was, that was first, the second pleading and the first cert petition that they filed in the Fourth Circuit asking the Supreme Court to reinstate the panel opinion to say, no, no, mandamus is appropriate in this case. Obviously, going to happen is that Maryland and the District of Columbia are going to oppose the Supreme court granting cert. They're going to say yeah, this is a super straightforward application of the principles of mandamus famous and you should, Supreme Court should not intervene.

0:25:37 Andrew: They should let the en banc decision stand and we should get on with this case. And that then leads to the third emoluments clause case, which is Crew, Citizens for Responsibility and Ethics in Washington versus Trump, which was filed in the Southern District of New York and has been reviewed by the Second Circuit. This is the case that is the most traditional of what of what the average person thinks of when you think of emoluments case. Right. It says here I'm going to read from their from Crew lawsuit from their Web page. The foreign emolument clause of the Constitution prohibits Trump from receiving anything of value from foreign governments, including foreign government owned businesses without the approval of Congress.

0:26:22 Andrew: Since Trump has refused to divest himself of his businesses, he is getting cash and favors from foreign governments through guests and events at his hotels, leasings in his buildings, and valuable real estate dealings abroad. Trump does business with countries like China, India, Indonesia, and the Philippines, and now that he's president, his company's acceptance of any benefits from those governments violates the Constitution. When Trump, as president, sits down to negotiate trade deals with these countries, the American people have no way of knowing whether he will also be thinking about the profits of Trump the businessman. Right, so this is what we think of

0:26:58 Thomas: Yes. To All that, I rule. I don't, I need a gavel. Why don't we have a gavel on the, anyway.

0:26:59 Andrew: Yeah, yes. Oh. We do need a gavel. That's case closed.

0:27:04 Thomas: Yeah. A case closed We both need a personal opening arguments gavel. We also could sell it at live shows that we don't have anymore. And that's a case close. That all sounds reasonable, but

0:27:10 Andrew: Yeah. It, it does. That's a question of standing. And in this case, the, the, the procedure actually went the other way. So Judge Daniels of the United States District Court for the Southern District of New York said, yeah, this is, this is bad, but you lack standing. Citizens for Responsibility in Ethics in Washington and Ethics in, in Washington, Crewe, cannot bring a lawsuit under the Emoluments Clause because the Emolluments Clause does not, you don't suffer any particularized injury under the Foreign Emolument Clause. That was then appealed by Crewe to the Second Circuit, and the Second Circuit reversed.

0:28:01 Andrew: So it took, so it was appealed on February 16th of 2018. And then after a year and a half, on September 19th 2019, uh, the Second Circuit reversed and said, no, no, no, we, we do think that individuals and watchdog groups have standing to sue under the Foreign Emoluments Clause for the reason that we just said in that paragraph that you said hallelujah to, right? Like, these are injuries suffered. It's akin to taxpayer standing. These are surgeries that are suffered by the people as a whole. And the people ought to be able to sue and say, we don't want a president who goes into negotiations with foreign countries looking to make money for himself rather than to do what's best for the American people.

0:28:48 Andrew: Seems pretty straightforward to me. So now the strategy is reversed, right? It is the Department of Justice petitions for rehearing on bunk immediately afterwards, right? So October 28th, 2019, they petitioned for rehearing en banc. And here's where the timing gets weird. That petition for rehearring en banc sat for 10 months. It was not denied until last month, until three weeks ago, August 17th, 2020, in which the entire Second Circuit was like, no, we're not that. Unlike what happened in the Fourth Circuit, where, you know, a panel went crazy out on a limb and granted mandamus relief where mandamus was obviously inappropriate.

0:29:37 Andrew: This is a totally straightforward ruling. They got the law right. We're not going to rehear it. And again, that only requires a, it only would have required a majority to, to rehear, um, and uh, and it did not garner a majority. So, um, we know, again, we're in the COVID rules, um, the Department of Justice had until January 14th of 2021 to appeal that decision to the Supreme Court. So, because they had the standard 150 days, um, but they expedited that too, and they, they filed that on September 9th, which is Emoluments Day. So that was the third brief filed by the DOJ related to emoluments. So two petitions for cert, one super duper early, and one opposition to cert.

0:30:26 Andrew: And now the question is, what happens? And I'm going to quote from Professor Tillman, who says, quote, Quote, a decision to grant or deny cert on any one or all of the petitions is possible prior to the November 2020 election. And I would say possible, but I'm probably 50-50 on that. A decision on the merits prior to the election does not strike me as likely, and I would say that is dramatic understatement. I would say it is impossible that we will get a decision on the merits on any of these cases before the election.

0:31:05 Thomas: President Uh, Baron Trump, we ought to finally find out whether or not Donald Trump violated any of these things.

0:31:07 Andrew: Yeah, well, we'll get to that. A decision on the merits prior to the January inauguration is possible. And I would say, again, possible. But if the court's handling of the Vance and Mazars cases is any indication, and I think it is a strong indication, I would say highly, highly, hardly unlikely. So, in other words, I think we're not going to get a decision on whether to grant cert until after the election. And even if cert is granted, we're not going to get a decision on the merits until after the new president is inaugurated in January of 2021. Professor Tillman continues.

0:31:57 Andrew: If Trump is defeated in the election, it is likely that once the new president's term starts, all three cases will be moot except possibly the individual capacity claim in D.C. and Maryland versus Trump. That claim status is not so clear. I agree with that 100 percent. Right. That is all of these cases seek injunctive relief, forcing President President Trump to go to Congress to get approval for these emoluments. Once Trump is no longer in office, Joe Biden does not have international entanglements that will cause him to enrich himself at the expense of the United States of America. And and that injunctive relief will be moot. The reason the individual capacity claim will not be is because that's the restitutionary one. Right. Trump still got the money. Right. So I think that claim will likely continue. Of course, If Trump is reelected, these claims will likely continue. But, you know, Chief Justice.

0:32:43 Thomas: Right. Oh.

0:32:56 Thomas: I'm sure we'll get decisions by 2040 on those. So

0:32:57 Andrew: Yeah. Yeah, Chief Justice Amy Coney Barrett is unlikely to rule against the Trump administration. So, yeah, a couple of lessons here. Number one, this bothers you, then maybe you want to get out and vote for Joe Biden in 2020, 20. Um, but, but, but leaving aside the, the political, um, abuse of the courts here, in routinely seeking mandamus and en banc review is the kind of thing that only works because this is the president, right? This is this, this would not, this, this is not a one weird trick for you or I to to gum up all future litigation. Right. Because if, if we did this.

0:33:47 Andrew: Right, the court would just say, like, no. Right? You you get mandamus is an extraordinary remedy. Deny. Right people try that.

0:33:57 Andrew: Interlocutory appeal is an extraordinarily remedy. Denied, of course. Lawyers try it, right, but it never works. But when it's Because the standards have built in state, and again, it, it differs from jurisdiction to jurisdiction, it differ, and it differs depending on what, uh, what we're talking about, but, but always it's something like, you know, I mean, think about the standard for interlocutory review, right? It is, is there a good argument the other way? Well, what makes something a good agreement the other way, right, and part of that is there's no direct precedent involving the president, right. If the standards for en banc review are, if this would resolve an unsettled question of law.

0:34:06 Thomas: Why does does it work here. Yeah.

0:34:56 Andrew: Well, what makes these an unsolved, an unresolved question of law? Right. Whether this applies to the president, all of these, the situation that makes them novel is because it's the president. They wouldn't be novel if they were you or I. They will always be novel involving the president and so this has really, and then the fact that what happens is, is, again, play this out. Okay, it's super duper novel. So now we've managed to take litigation that was supposed to go to discovery in late 2017. And we have a cert petition in late 2020 that will then become mooted if Donald Trump is not reelected. So the process starts all over Right. We're not going to get a decision from the Supreme Court with finality.

0:35:03 Thomas: Yeah.

0:35:49 Andrew: And I don't want Joe Biden to be able to do this either. Right. But I have to tell you, if I were attorney general under President Biden, and it is my job to offer the best advice as to how to delay an adverse court ruling from going into effect, then I would say, yeah, oh, oh. Oh, we lost at the district court level. Well, let's petition for interlocutory review. Oh, we lost on that. Let's go to the appeals court and move for mandamus. Oh, we lost on that, let's ask them to review it on bunk. Oh, we lost on that, let's go to the Supreme Court. That's not everything that you see that we rail against in lawed awful movies about, you know, oh, well, you get 57 appeals when you're on death row, right?

0:36:34 Andrew: That's not the case if you're a death row inmate. But that has become the case with the president of the United States. And has to be fixed. We have to change the rules on mandamus. We have to change the rules to to to prevent this because it otherwise, this will become the new normal. And I could, I could go on about the president, you know, using, you bypass certiorari to the Supreme Court. That's another abuse of the norms of practice. But I mean, we just have to look at it and say, you know, what he's done is taken the kind of zealous advocacy that marks the very worst of private practice and elevated it to the presidency of the United States. And, and look, it's worked, right? Um.

0:37:33 Thomas: Well, this is why I think we need a gigantic truth and reconciliation commission, or whatever, you know, and like, how on, and, and, uh, come up with a report, a, not a report, a report of, of how to fix all this stuff, and then, you know, hopefully there's enough attention and political capital and all that stuff to, uh, to make some change. This is all, of course, assuming we get a new president. If we don't, this is not worth the paper that this podcast is printed on. Back,

0:37:34 Andrew: I'd, yeah.

0:37:58 Andrew: But I, I would be curious, and and since Professor Tillman listens to the show, you know, uh, write us back, maybe, you know, maybe we'll have you, you back on an episode. I, I have to think it would be frustrating for him as well, somebody who's been writing on the Emoluments Clause for two decades now, right? Like, again, one of the things we've said he's a yeah right, he's he's a conservative, he's an originalist, we disagree a lot on the merits of a lot, but like this position was not developed pretextually to benefit Donald Trump. It is a position he has been arguing since the mid-2000s, and I have to think he would be frustrated at seeing it get before the Supreme Court only to have it mooted by electing a new president. So let us, let us know your thoughts on that. Maybe, maybe we have a little crack at daylight there where, where we agree, that is, if you manage to make it through the screen. But

0:38:20 Thomas: Before it was cool okay

0:38:57 Andrew: But there you go.

0:38:59 Thomas: Uh, good time for our main segment, 40 something minutes in

0:39:02 Andrew: Going to

0:39:06 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:39:24 Thomas: Um, so Roger Stone and the unredacted Mueller report, do we finally have all of the Mueller report, Andrew? I haven't seen any headlines so I assume nothing to

0:39:31 Andrew: Nope. Yep. So so, yeah, that's a little bit of an optimistic headline or internal note on the whiteboard. We do not have the fully unredacted Mueller report. What we have is a less redacted Mueller report that eliminates the harm to ongoing matter redactions that were contained in the original report, because, as we know, there are now no longer any ongoing matters. So there's nothing left to harm. I'm going to talk about those in a minute. But various diligent journalists are trying to go forward and and get more. And what we just had was a ruling from Judge Reggie Walton in the U.S. District Court for the District of Columbia against Jason Leopold and BuzzFeed.

0:39:35 Thomas: Uh yeah wait

0:40:23 Andrew: And here's what they, this was about a week ago. And what happened was Leopold filed a FOIA request to the FBI. And What he was seeking was the full FD 302s. We've talked about that in connection with the Mueller report and with our buddy Randall Eliason on the air that those are the transcripts of the actual interviews conducted by Mueller and his team with the various witnesses. Right. So not just the narrative, but the underlying documentation. So Leopold and BuzzFeed filed a FOIA request. The FBI told him to go pound sand. They then filed a lawsuit. And in this decision, again, BuzzFeed is going to appeal to the D.C. Circuit. But but they lost at the at the trial court level.

0:41:10 Andrew: So and again, with the standards of FOIA law, we don't have time to break down the decision. Not not a crazy decision. Right. Like it is, know, a defensible opinion.

0:41:27 Andrew: So what we know now is is what we knew from the less redacted report, um, we know two things. Number one, uh, and and this is maybe my third favorite episode of the show, uh, it's not in our top 10, um, but it is episode 324, in which we break down the nine high crimes and misdemeanors committed by president Trump that are yeah

0:41:52 Thomas: Does that mean that was like a year ago that we did that oh my

0:41:54 Andrew: That are clearly laid out in volume two of the Mueller report, right? We go through, we take the operative standards and we show how Robert Mueller very clearly intended that volume two would set out impeachable offenses and would be used by the U.S. Congress, by the US House of Representatives, as its playbook for, this is why we're gonna impeach the president, here's all the crimes that our criminal president has committed.

0:41:55 Thomas: God yeah That Mueller report turns out pretty bad.

0:42:26 Andrew: Yeah, super duper bad.

0:42:27 Thomas: Not a total exoneration, as uh, certain super corrupt uh attorneys general would have you believe.

0:42:34 Andrew: Yeah. So you can now add a 10th crime to that list, because now we have 10 is so here's what happened. Now that we have the unredacted, the less, I shouldn't say unreducted. We have the less redacted version of the Mueller report, we see that. And I'm going to lay out the case super quickly that Robert Mueller very clearly thought that Donald Trump obstructed justice with respect to Roger Stone as well. Well, right. So most of the stuff that was under the redactions, and and I did this, and I I had helped from my than law clerk and intern, Rich Gilliland. So thank you, Rich, for this. I set him up with the classic law intern of, hey, I want you to go through and compare, you know, know, what's unredacted here versus what's redacted on this page.

0:42:34 Thomas: Oh but that ruins the name, okay, 10 crimes well

0:43:27 Andrew: And I just gave him both versions. And this is the kind of stuff that lawyers do. And this the kind OF thing that it's good to it's good to be the partner, really makes make somebody else identify all the redactions and then and then I'll tell you what they mean.

0:43:41 Andrew: So under these redactions are no, you know, bombshells of fact, which is why when this came out, it's sort sort of passed by unnoticed, right? There wasn't, you know, to gather press opinion, you kind of have a hook, you need a hook. And, you Know, there isn't a hook but there is strong evidence that Robert Mueller believed that Donald Trump lied to him in the answers to interrogatories, right, that contained in the back of the investigation We inferred the very first time we looked at the report with respect to what he said about Roger Stone. And then secondarily, he very clearly, Mueller very clearly laid out that Donald Trump's public statements about Rogerstone clearly met the elements of obstruction of justice.

0:44:40 Andrew: Right. And those were, you know, that that that's why we add it to a 10th. So we can even go to 11. It might it might ruin the listicle, but we could play that bit from Spinal Tap. We could go to eleven on our Trump crimes. His written answers, the president stated this is now we know this from the less redacted version. I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollections of the specifics of any conversations I had with Mr. Stone between June 1, 2016 and November 8, 2016. Now, the president of the United States does not drink alcohol. I know of nothing else other than repeated blows to the head, which might explain a five month gap in memory. But anyway, do not.

0:45:16 Thomas: Cool yeah I know that's always the legal get out of jail free card is to say you don't recall, you don't recall, right? But like, are there any limits to that? Can you really just, I don't recall anything from the years of 1986, when I, I was born, to the year 2020. No recollection. Of End of deposition. I

0:45:31 Andrew: Yeah. Yeah, yeah. And what you do is you produce contemporaneous documentation that shows, yeah, maybe you did. And so, and in fact, that is what is present in the Mueller report, right? So, oh, go on. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign. Although I was aware that WikiLeaks was the subject of media reporting and campaign related discussion at the time. The Mueller report now shows that Mueller believed that those statements were false. He knew that Stone was in contact with WikiLeaks about information harmful to the Clinton campaign. We knew that Stone told Trump and other Trump campaign officials about it. That is volume one, section 3D1 and volume two, section 2A, which detail, it's just too many to list, the numerous communications, factual background, timeline,

0:45:54 Thomas: Don't remember that you

0:46:48 Andrew: All of Stone's connections to WikiLeaks and turning around and telling Trump himself and Trump campaign officers, including Donald Trump Jr. Then, quote, Stone has publicly denied having any direct contact with Assange and claimed not to have had any discussions with an intermediary connected to Assange until July or August 2016. But campaign officials all told Mueller that Stone had knowledge of the email dump before June 12th, 2016. 16. That was when Assange publicly announced that he was in possession of emails relating to Hillary Clinton, which were pending publication. So Rick Gates told Mueller that Stone told him that something big was coming that had to do with a lot of information.

0:47:33 Andrew: Paul Manafort told Mueller that Stone was dealing with a WikiLeaks intermediary in June of 2016. Michael Cohen told Mueller he was at Trump's office when Stone was patched through on speakerphone and told Trump directly over the speakerphone that he had just gotten off the phone with Julian Assange and that in a couple of days, WikiLeaks would release that information. OK, so that's how you disprove the I don't recall anything at any time ever.

0:48:02 Thomas: Can't disprove that he doesn't remember

0:48:03 Andrew: No, but it, it, it strongly suggests that that's a pretextual answer. Right. Like in the same way, in the some way that my saying, it is my opinion that, right, does not absolve you from uh underlying allegations of defamation. Saying I don't recall, that is not a get out of jail free card

0:48:04 Thomas: Yeah then I'd just be like, why, I already don't remember the beginning of this question, and now I forgot in the middle of, I don't remember the question, I've completely forgot. I have a three millisecond memory.

0:48:32 Andrew: Yeah, well but then you would have to introduce the evidence that you're actually a goldfish, or that you have That memento disease, so uh, volume two, uh, page 129, uh, here's how Muller himself self-summarized this information. This was all under the redaction and is now outside the redaction. As described in Volume 1, Section 3D1 Supra and Volume 2, Section 2A Supra, that means just before, several witnesses said that candidate Trump was told during the campaign that Stone had access to WikiLeaks and could provide information about planned releases of damaging material related to Hillary Clinton before those releases occurred. And then Cohen recalled the conversation, Manafort recalled the conversation. Witnesses also said that Stone's connection to WikiLeaks was common knowledge throughout the campaign. So I could go on. But all of this taken together shows that Mueller believed that Donald Trump lied in his answers to interrogatories regarding Roger Stone.

0:48:33 Thomas: Yeah we

0:49:35 Andrew: But it gets worse than that, because again, Roger Stone fits into the clear pattern of the elements of obstruction to justice. And again, remember, that is, there must be an obstructive act, it must have a nexus to an official proceeding, and the hardest part, you must demonstrate corrupt intent. So here's what we learned with respect to Roger Stone. And again, these are all previously redacted segments that have now been unredacted. They all come from pages 132 to 133 of volume two. The Obstructive Act. Quote, there is evidence that the president's actions towards Stone had the potential to affect a decision about cooperating with the government.

0:50:20 Andrew: Now, so what are those actions towards stone? That is Donald Trump's public statements in favor of Roger Stone. Right. Saying that, oh, yeah, Roger Stone, right. Good guy. He's not going to roll over. He's not going to cooperate with this witch hunt. Right? All of that. After Stone publicly announced that he would never provide evidence against the president's interests, the president called Stone, quote, very brave and said that he had, quote guts for not testifying against Trump. I mean, that is as close to a damning admission as you possibly get, that we, right, have a president saying publicly over Twitter, yeah, this guy who's definitely not going to testify against me for my criming, how brave that is.

All right. What's the nexus to the official proceeding? Quote, the president's actions towards Stone appear to have been connected to pending or anticipated official proceedings involving each individual, right, that's the legal connection. And how do you prove the intent? Page 133 quote on November 28th, 2018, eight days after the president submitted his written answers to the special counsel, me, Robert Mueller, the president criticized flipping and said that Stone was very brave for not cooperating with prosecutors. Five days later, December 3rd, the president applauded Stone for having the guts not to testify against him. These statements, as well as those complimenting Stone and Manafort while disparaging Michael Cohen once Cohen chose to cooperate,

0:51:02 Thomas: Yeah yeah

0:51:49 Andrew: Support the inference that the president intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the president, and disparaged if they chose to operate. Let me read that again. Robert Mueller concluded as a matter of law in his report, the one Bill Barr says exonerates him, quote, the inference that the president intended to communicate a message that witnesses would be rewarded for refusing to provide adverse testimony and disparaged if they chose to cooperate. Cooperating, testimony adverse to the president, and disparaged if they chose to cooperate. Again, you do not get more clear than that. It is clear as Kushner. Robert Muller thought, I'm going to deliver this report and they're going to impeach this guy, and uh, it's on the Republican Senate for, for, for not, uh, it is I

0:52:03 Thomas: Yeah.

0:52:42 Thomas: I mean, I also think Mueller could have tried a little harder, but that's just me.

0:52:45 Andrew: Don't disagree, I don't disagree, but this is by ordinary standards of law, this is more than if this were, if this had been issued against Obama or Bush or Clinton or George Washington, he would have been impeached in a heartbeat. Um, so there you go. Uh, we, we may never know what's under the rest of the black stickies, we may never get the full FD302s. I mean, never is a long time coming, right? But uh, you know, Donald Trump will be

0:52:47 Thomas: Yeah. Yeah. Oh, sure. Yeah, what about a change in administration? Would that help? Would that really, could they?

0:53:11 Andrew: Uh yes so yes, and uh, and and and yes, because not the least of which is a new administration could declassify all of the Trump stuff. So, yeah, it would be a fantastic idea.

0:53:23 Thomas: Right. Hey, that would be a good idea. Cool.

0:53:28 Andrew: So maybe we could do something about that.

0:53:29 Thomas: Hey let's get a new administration everybody. I

0:53:30 Andrew: Yeah, that'd be great. Yeah,that's a great idea. Good thinking, Thomas. Case closed.

0:53:31 Thomas: Can't believe I didn't think of this. Gavel.

0:53:40 Andrew: See?

0:53:41 Thomas: Well, there's uh, Trump's 11, but 11 crimes and misdemeanors 2020, make the law, make things matter again, let's do that, let's Uh, Let's let's make that, let's make a horrifically damning report, like this matter again going forward, uh,

0:53:47 Andrew: I agree.

0:53:53 Clip: And thank you, Let's go!

0:53:55 Thomas: And now it's time to thank our top patrons, our Hall of Famers, our all-time greats, patreon.com/law, and I'll start us off. Thank you to Matt Rogers for Virginia 47th House District, Casa Agria is the best brewery, Emperor's Brewery is a close second, Stoic Paralegal, Great Dooku Tree, Thomas Kleberg, Mary Perez, shout out to my friend in Indy that just passed the bar on her first try, oh congrats, and Veteran Suicide trailtozero.org, Naomi Rouse sure gets my munsing wear in a bunch and I'm afraid it's binding, relax, Senator Doug Jones, oh clown horn, I'm actually starting law school, I unicycled 110 miles in New Jersey and New York, and all I got were lousy jokes about how I should be listening to podcasts, what, two fabulous lesbians who were wondering how many weeks in a row you were going to congratulate us on being married, hey, as many as it takes yeah, we, hey, we read what you say, you can, everybody can get congratulations on their weeks old marriages or years old marriages, William Drew Collins, Bob Newhouse, Sassy Italy Tours is not going to give Steve Bannon a refund on that grappa tour he's not going to be able to make now, Greg Crimer, the Polyshore Experience, first we crack the shell, then we crack the nuts inside,

0:54:50 Andrew: Yeah, not not anymore.

0:55:16 Thomas: Register, Register, every person you know to vote, Mongo and Duchess 2024 wearing, wearing a Trump hat voids my respect for your religious beliefs. Cheeky breeky. We need a new movement solely focused on justice against all those responsible for this fascist coup attempt. Mike Hall. Sniveling complaints about Patreon, especially when Red and Andrew's sing-song plaintive voice, are beneath me. I'll think of a... And then it cuts off. Fly like a hot dog for you, Meagle. Say it with me. Amicus. Angry Mac face. Matthew McConaughey portraying Matthew McCunaughey. Teacher going back to school. Mask on, fingers crossed. Stop ask a question a president of Finland would ask, center black trans sex workers, the books that burn podcast reviewing fictional depictions of trauma since 2019, postal

0:55:16 Andrew: Great, Great, Transformers reference,

0:56:07 Thomas: Police stamping out crimes in 1717, 1775. Vote early if you can. This episode brought to you by the letter Q for quarantine, no joke this week, but a sincere thank you for all you do to To help this timeline make sense. You're welcome. That's on behalf of Andrew. You're. My favorite paradox is the legal advice. Don't take legal advice from a podcast. Change my page.

0:56:33 Thomas: Yeah. Change my Patreon name. Yeah. It's like meta legal advice like. Yeah, change my patron names, that I don't jump every time you read it. Make Steve King an author again. Our British etiquette class is mostly about real proper tea. Nice, Murray Gregerson in Illinois, we pronounce it Illinois, I move for a bad president thing, can we have a second impeachment for old time's sake, yeah, I mean a third and a fourth, going out to buy a whole library of stamps, uh, dash infinity symbol dash infinity simple, Ian Buckley putting a pin in this patron name for later, I love that one, Robert Gaudy Fisher, Fisher, Jake Braun, not that Chris Wallace. I'm too sexy to vote Trump. Too sexy to vot Trump. Trump needs to be re-impeached. I am a lawyer. You know what I mean when I say...

0:56:29 Andrew: That's Not legal advice, oh, Nice,

0:57:24 Thomas: Christopher Brown, online law school with a third grader. What could go wrong? Wafflecopter says, Bannon looks like a guy who just had his second to last horcrux destroyed. GiveToModestNeeds.org. The wheels of justice turn faster than the speed. I changed my Patreon name. Support the co-op economy. Various goat noises, there's a goat, why is there a goat, stop ask a question a lawyer's butt would ask, please let me drink lots of water, I like peeing totally clear, Zirkle has anyone tried turning 2020 on, off and on again, Odin wants you to vote against Donald Trump by voting for Joe Biden, Polly Hernandez with a little white and dark night blue paint, a Trump Pence sign can be made to read eye pump penis, the previous patron name is true, the next patron name is false, Thomas takes the bars not on Pornhub, oh wow, so that's apparently false, stocking up on lung injectable bleach, Emily Rainbow Spence, Mongo's back baby, have deep feelings for OA, just need to find a new job in game of life,

0:57:52 Andrew: All

0:58:31 Thomas: Terry Cannon, one of the millennials killing the the Kennedy industry, Jason Kopas, Hot Spears, Ari Shazan is almost but not quite entirely unlike a lawyer, punching fascists is not enough, get into good trouble, take donation advice from a podcast, FFRF, EFF, ACLU, Modest Needs, and our damn Patreon, and I've got a fever and the only prescription is more triangle, whoo, your turn, Andrew,

0:58:57 Andrew: Right. Thank you to Nate Drex, congrats to the newlywed patron lesbians. Okay, OK, it's about time to change that over to V. Frank, 13th century Saxony gravel truck lawyer. Save the USPS. They are essential for small businesses and our democracy. Volunteer for your candidate today and take back your government. Jennifer Kratch, Diogenes the Cynic was right. J. Cheever Leupold, Jeff Gelbach. Sticks and stones may break my bones, but real property law can never hurt me. Wash your hands, then vote for Joe Biden. Two great pieces of advice. civilpoliticsradio.com Fridays at 7 p.m. Eastern on Valley Free Radio. Stephen Balticate, Sandoval, John Bilderbach, Commodore 64 of the Antifa Navy reporting for duty, ready the soup torpedoes. Oh, that's so good.

0:59:44 Andrew: If I've said it once, I've said it a thousand times, and finally, Conrad Michaels, Philip Kizer, Andrew the Arbitrary and Capricious, Eric Alsman. I like traffic lights, I love traffic lights, lights, I like traffic lights. Stop equivocating, they're not the same. Vote Biden. Baseball law states 2020 doesn't count. Can to get. Can I copyright the phrase "voter suppression"? Okay. That's pretty funny. Absion, stop, throw the grenade like a, a lawyer would throw.

1:00:04 Thomas: Yeah, All

1:00:14 Andrew: Hey, I used to pitch. Payne's Trumpet, Trambolis, Therese Chan, La Machine Infernal, The Wandering Gambler. A world without simile wouldn't be like anything. I support the Australian Republican movement. No, not those Republicans. SCOTUS uses the Bob's Country Bunker bottle of religious tolerance. I still don't know what that means, but I love the reference. Milo Meadsong is an uncle. I love you, Willa. Oh, congratulations, Congratulations, Milo, and congratulations, Willa, and their proud parents. Death Escrow Karaoke, only songs by dead artists. Join your labor union, together we bargain, alone we beg. Just diagnosed with sleep apnea, I may have never not been tired. Oh, I feel you. James K., ah, gravity, thou art a heartless bitch. Doctor at night, homeschooling our kids in the day, pretty sure my wife's a superhero. Ah, that sounds like it. Chad T Anonymous, the arc of the moral universe is Jeremy Baramy. Word Origins.org, your source for legal terms from 13th century Saxony. Stop, ask a question, T Gomez would ask.

1:00:24 Thomas: Right,

1:01:17 Andrew: Hope you are all safe and well, have a good week. Closing concession, Airbud 69, Tales of Reciprocity, that's Tales, maybe the real emoluments violations are the bribes we've received along the way. Oh, oh, how timely. Liz Witnesseth Me Weeks. Derek, this episode by the Donald Trump Felony of the Day desk calendar, for sale wherever you buy Covfefe. Adam Costa, J. Alden Walt, Big Easy Blasphemy, B equals equals D. Oh, nice, a string of unpronounceable characters. Rhonda 2020, because WTF not. Cobalt, the dead pitbull, has a new adopted younger brother, Chocolate Chip Cookie, the living pitbull. My superpower is knowing the difference between Bill Pullman and Bill Paxton. Yeah, that's a good one.

1:02:03 Andrew: Malika Chandler, tricycler manslaughter, soggy pants, Matthew Vernon, adopt a homeless pet and oppose declawing and ear docking. Sakushi Tefukasumi only breaks laws in specific and limited ways. Don't take legal advice from laser beam monstrosity attorney at law. Heather L., Jeremiah's fancy microwave emporium, Ian and Allie, David in Brooklyn, Danny Rosari, Eli Bosnick, Sam Donnell, Now, one should be mindful of the work you leave behind for others. Mitchell, no commute, so behind on podcasts. It's 49 days until Election Day. Have you voted yet? Vote, vote, vote. Sorry. Sam Buck, Natasha Crunchwrap wants you to support the Justice Policy Institute. Philanalysts support the USPS. And finally, our all-time great, Conrad Michaels.

1:02:45 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:51 Thomas: Now it's time for uh, T3B answer time, and uh, this is my new favorite thing because I get to see which music I get to play, uh, and you know, maybe I'll uh, spice up the the the wrong answer music too, just for fun, we'll see, anyway, T3B answer time, here we go, do well,

1:03:06 Andrew: All right thomas this was a contract question this involved an actor straight out of drama school. He signs a one-year contract with his agent at 15% of his yearly earnings. That's over the standard of 10%. But he's so happy with the agent, he says, you know what, I'm going to give you 20% for the first year. And then the two of them, it's one year contract, the two of them get together and they're like, yeah, let's renew this for the next year, right? So they photocopied their old contract, changed the date and signed it. Then at the end of the the year, the agent had a dispute with the actor as to what percentage the actor owed. We also learned that, so we've got four possibilities, right? Nothing, contract is too indefinite. 10%, which is the trade usage, so D says, oh, we're going to work backwards. D says nothing. C says 10% because that's the default trade rule. B, which you picked says 15%. That's what it says in the contract, right? And D and A, backwards, says sorry, 20% because that's the course of dealing. That's what he gave him last year.

You said, this seems like a totally straightforward question to me, right. Written contract. Yeah, they, you know, photograph, but who, you know, who, who the hell cares? They both agreed on 15%. It says 15%, you get 15%. You were so confident of this that you eliminated C and D

1:03:40 Thomas: I

1:04:26 Andrew: That the trade usage and then nothing and then you said yeah and the the course of dealing thing that just doesn't seem sufficient to overcome the fact that it's written down, you get the 15 percent. I

1:04:40 Thomas: Said specifically that it could be course of dealing, but the way answer A is written, it says course of dealing is given greater weight than trade usage. If it had been course of dealings given greater rate than this express term of the the contract or something like that, I might have been more swayed.

1:04:55 Andrew: So uh, I, I want to tell you, B is absolutely correct, uh, You were not fooled in any way whatsoever. It's a totally straightforward uh question in which they're trying to get you to undermine mind the basic law of contracts, which is you protect the intent of the parties as expressed in writing. The D answer's total nonsense.

1:04:58 Thomas: Right. Yeah.

1:05:15 Thomas: Nothing.

1:05:15 Andrew: Yeah, it it it contains

1:05:16 Thomas: You just work for a year for free because of this contract? Dispute,

1:05:20 Andrew: Offer acceptance, consideration, all of the essential terms, including the duration, description of services, method for calculating the fee. Like, you know, that, what's, what's indefinite about that? Nothing. Like, they're trying to get you, I think, on the photocopying thing, and I doubt that, um, I doubt that that fooled anybody, uh, taking the bar exam yeah Well, I mean, you know, any, anybody who's not a hundred

1:05:35 Thomas: Yeah. Who listens to this show, yeah. I feel like a question like this is for those like maybe not necessarily sovereign citizen people, but for the people like that who think there's all these one weird tricks about everything, they're like, oh yeah, you look too deep into it, but really it's just B, answer 15, they but they signed it, they agree to it

1:05:43 Andrew: Yeah um that's exactly right. Uh, so um, an express term always takes precedence over uh something like trade usage, right? So really what, what this is trying to do is, and a lot of bar exam questions work this way, they throw in a bunch of things that might trigger exceptions, hoping that you'll forget that those things are exceptions, right? Like that you want to just kind of zoom out a little bit and be like, what's the rule?

1:06:15 Thomas: Yeah. Right. Right. Yeah. Is there a world in which like So the 20 thing, like I was saying, I mean, there, can you change the facts here to make the 20 be the valid? What would have to happen for, for course of dealing to be

1:06:34 Andrew: So here's a couple of things, right. The first is you'd have to have way more than just once, Right. Doing something once can never be considered a course of dealing. Right.

1:06:36 Thomas: Uh Interesting.

1:06:48 Andrew: So by definition, you know, a line has two data points. Right, like and generally speaking, a course dealing will not supersede the written terms of the contract. Although I will tell you that like one of the things that I put in my written contracts here, I'm giving away some more legal stuff for free. But I'll put in a clause at the end that is a non-waiver clause, right, that says waiving any of the duties or obligations of this contract shall not be construed as waiving any other duty or obligation of the contract. And let me tell you, like, when that comes into play, like a classic situation that is a real dispute that could be ambiguous. And again, remember, the goal of a contract is to make things unambiguous, right, to prevent people from going to court.

1:06:48 Thomas: Yeah. Yeah. Right.

1:07:38 Andrew: And that is landlord, right? Contract lease says rent's due on the first month. Um, you always pay the rent on the first of the month for a couple of months. Uh, and then you say, uh, you know, I don't really get my paycheck until the third. Can I start paying rent onthefifthofthemonth? And the landlord says, yeah, yeah. That's fine. Uh. And then you pay rent on the fifth of the months for a year. Let's it's a three year lease, right? For another year. And And then the rental company is sold to somebody else who comes in, right?

1:08:13 Andrew: And then a new landlord says, no, no, written contract says first of the month, right. And it really will depend on how the lease is written as to whether the court will enable you to rely on, come on, man, like I've been paying on the fifth for the past year.

1:08:28 Thomas: It's Interesting.

1:08:29 Andrew: And, and so, you know, again, what you want to do is you, you, you just want to be clear and, you You and the solution, if if, you know, if the contract says prior dealings will not be considered, the way is to amend. Right. Is to is to write out a change to the contract that says, OK, well, we're going to amend this. And, you Know, in consideration of timely payment of this rent and going forward, you know, the date will hereby be changed from the first to the fifth of every month without penalty, something like that. But but again, people don't know. And because they don't know, that's what engenders back and forth. That's when people get mad. And so, you know, part of my job as a lawyer, shockingly, is to try and make people not mad at each other. So there you go.

1:08:29 Thomas: Right. Yeah. There You have it nailed it, play.

1:09:19 Clip: You are correct the best kind of correct he's not even a lawyer he's kicking your ass

1:09:30 Thomas: Ah, such great, I feel feel great after that, that, that's really awesome. Well, uh, again, I won this week, but why don't you hop in your time machine and tell us who is this week's big listener winner? Well, Andrew's time machine malfunctioned and took him to his son's debate tournament today, so I'm stepping in, really unfortunate, so, I'm going to give us this week's winner, it is Devin Hollowood, who says on Twitter, this week's answer has got to be B, based on a 1-2-3 punch of A, asking what seems right, B, what was in the meeting of minds, and C, what would the law want to discourage giving bonus pay? All of those answers point to 15%, hoping for more Chariots of Fire this week. Well, Devon, you're in luck!

1:10:16 Thomas: As you've already heard, and you are this week's T3BE winner, so why don't you go ahead and throw Devon a follow at D-E-V-O-N-H-O-L-L-O-Wood, at Twitter, so at Devon Hollywood, thanks so much for playing, congratulations, infinite fame and fortune, guaranteed, because I'm not the lawyer. Right, well that's our show, thanks so mucho for listening everybody, thanks most of all to our patrons, uh, again a lot of movies coming within a few days here and uh, we will see you next time.

1:10:49 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:11:23 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra 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 Arguments 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.