OA426: Breonna Updates; Trump's Outrageous Tax Returns

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 426, hope you enjoyed the new intro that I just remembered I have to make all in time for tonight's episode, I bet it was great, how's it going Andrew?

0:01:30 Andrew: Well, I was doing fantastic, now I'm slightly nervous for you, but you know, still 70% fantastic, 30% concerned about my friend, so, yeah,

0:01:41 Thomas: Oh, there is so much to talk about, there's so much, I mean, we can't even really get to the debate, can we? Uh, all,

0:01:48 Andrew: Maybe we could have recorded 70 minutes or so on Serious Inquiries only.

0:01:54 Thomas: Right, that's a, that's a fan, what a great plug. Yeah, we, uh, not only did we have the usual amount of Torres, we had that plus double the Torres, Alex came on the show, debate champ Alex came on to help us break down the debate over on Serious Inquiries Only, so if that's something you want to check out, hop on over after this one's done, of course, and And yeah,

0:02:09 Andrew: Only Yeah, Yeah, that was a lot of fun, that was, that was my son Alex's first, uh, foray into podcasting, and uh, he did that thing that, uh, all good podcasters do, which is as soon as it was done he, like, because we, you know, recorded on separate floors so that obviously we wouldn't have any crosstalk and that sort of thing, and he ran down and he was like, "Dad, I didn't say this and I didn't have this open and I wanted to," and I was like, now you know how I feel every single week, son, but no, that was so much fun, yeah, yeah, I, it would be several hundred pages just, uh, taking the last couple of months worth of unpublished notes, so, uh, put a pin in that there you go, that's what the book will be called, there, we go,

0:02:44 Thomas: Yeah, we could put together several volumes of your unused notes. That would be we could just release that as a book every month or two.

0:03:05 Thomas: Yeah, that's the name of the series. That's the put a pin in that with Andrew Torrez. All right. Well, we've got the Trump taxes. Huge story. Story, uh, wouldn't, this is the ultimate, sorry, Andrew, but this is the ultimate Andrew was wrong by the way. Like we thought we'd have these taxes, tax returns years ago. Uh, once the house was taken by Democrats, but instead we had to wait until, and that's one of the things I plan on asking Andrew where he thinks they got these things. But, uh yeah, there's a lot there. Cannot wait to talk about Trump's taxes. Um, we definitely have some clarifications on Breonna Taylor and some updates there. There. Interesting news, possibly about that grand jury. So really curious to see what Andrew thinks about that. Oh, and also it is Q&A time. It's that time of the month. So we are doing a live Q&A this Monday. That is Monday, October. I can't believe it's October already.

0:03:16 Andrew: Yep,

0:04:02 Thomas: October 5th at 430 Pacific, 730 Eastern. Be there and or be square. It is going to be a ton of fun. It always is. Once again, live Q&A on YouTube. You'll see the link shared on social media and Patreon Monday the 5th at 4.30 slash 7.30. So come join us.

0:04:21 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:04:26 Thomas: So as far as the Breonna Taylor killing is concerned, I wanted to just make sure I said a few, because, like, when we had talked about it, you know, I think we both were kind of expressing the fact that, like, yes, this is an absolutely disappointing outcome, but it's sort of in line with what the system is designed to do, and let me know if I'm, I'm mischaracterizing, uh, you know, what, what you said, Andrew, um, and that's not a defense of the system, that's saying, like, the problem is the system, it wasn't that any one of these officers necessarily did something that you could, you know, charge them with murder, that was kind of where I was, but like, as more stuff has come out, there's something I I really wanted to emphasize that I forgot to, which is that they only had, and this is for, if you've got any Uncle Franks, you know, that try to do the, "Well, her boyfriend shot a police officer."

0:05:17 Thomas: So of course the blah, blah, there, there was a lot of work done by journalists to track down, you Know, the, the witnesses and all that. And there was only of, I think it was a 12 or 13 witnesses, Andrew, and you can correct me if I'm wrong. None of them initially said that that the police announced themselves until one, only one of the 11 or 12 can, uh, later on change their story to say, oh yeah, they, they said police. And so I just want to emphasize that like, and there's, there's some other points I heard made that, you know, this Breonna Taylor's boyfriend was not a criminal. They did not have any drugs in the house. There was absolutely no No reason for her boyfriend to think anything other than there's an intruder in our house.

0:06:04 Thomas: You know, I think there's a lot of unconscious bias, you know, maybe sometimes conscious bias going in where they're figuring like, oh, well, you know, he's got a gun because I'm sure there's some criminal activity. It's like, no, some people banged on their door in the middle of the night. By all accounts, it sounds like, except for one that changed their story, might not have announced themselves, themselves, and I would go so far as to say is, didn't, and probably didn't announce themselves as police, and they're banging down the door and he has no, you know, criminal record, no drugs in the house, so thinking of it in terms of, oh, well, that's what someone's gonna do when they, you, they're a criminal, in the car they're gonna shoot the cop, if that's what your Uncle Frank is saying or thinking, it's just wrong, and I wanted to really emphasize that there are problems with the evidence, and then I wanted ask Andrew about the, we get this thing where the grand jury, someone, someone who was in the grand jury, tell us what happened with, with this weird

0:06:17 Andrew: I, want

0:06:57 Thomas: Thing.

0:06:58 Andrew: To get to the grand jury, first I want to talk about the facts, and I am proud of the way in which we discussed the indictments that were handed down and basically said, you know, that there are serious questions regarding the facts to date in, in our last episode. Um, I, I will say, uh, where a couple of listeners have, uh, taken us to task, on, you know, so from the left you might say, uh, that, that I think is fair, is that there is a recitation of facts in Brianna Taylor's civil complaint, which, which was settled by the police department, right?

And so I'm going to read, now, again, same caveats as last week, right, allegations in a complaint that are settled are not necessarily true, but since we gave airtime to, you know, what might be described as the cop's side of the story, let's give airtime to Breonna Taylor's side of the story. Paragraph two, I'm going to link the complaint in the show notes. I think I have before, but we'll do it again. You can read it for yourself. And this is, I don't know that this paragraph requires a content warning. The complaint is disturbing. So I do want to say that. So paragraph two.

On March 12, 2020, Breonna Taylor went to sleep. She was woken up past midnight by banging on her door. These men banging on the door would not announce themselves. These men ignored Brianna's shouts for them to say who they were. These men had no probable cause or other legal basis to enter and search Brianna's home.

0:07:51 Thomas: Right.

0:08:42 Andrew: These men, all in dark plain clothes, did so anyways, breaking down Brianna's door with guns drawn. Despite Brianna's significant other trying to protect her, Brianna was gunned down by the men breaking into her home, and while she tried to hang on for her life, she was then shot by another man who was blindly firing through windows. She fought for her life for more than five minutes before finally succumbing to her injuries. So that is the estate of Brianna Taylor, that those are the allegations, that is how, uh, her estate's lawyers, uh, have characterized what happened that night. And And as I said, you know, subject to the previous caveats, that tells a very, very different story. Now, let's talk about the grand jury stuff.

0:09:31 Thomas: Well, let me, uh, so put a, put a pin in that here. I'll use a pin, uh... before we get to the grand jury stuff. And this is kind of part of that. I also want to emphasize that, you know, so yeah, I, I think if I, if I want to clarify or, or say maybe, uh… I should have said something different in that episode.

I, I think maybe I shouldn't have been so quick to just repeat what the AG presented as the facts, you know, in ordinary circumstances, you would hope that would be like journalistically like, okay, well, here's the facts according to the AG. In these circumstances, I just don't know what to think because it really, you know, it really looks like there could be any level of cover up here.

I don't want to sound like a tinfoil hat person, Andrew, but like, I don't know how much I trust the facts as this AG Daniel Cameron is giving them, Especially when you find out he's like, you know, a Republican, uh, what is he, married to uh to McConnell's, uh, niece or some crap, like, it's just, like, okay, I don't really trust this guy.

0:09:34 Andrew: Sure, sure.

0:10:31 Andrew: And let's move away from sort of tinfoil hat territory to pattern and practice that, again, is also described in the civil complaint. And that details things that we know happen, right, which is the coordination of blockbusting by the police in conjunction with efforts to re-gentrify urban neighborhoods. So I wasn't planning on doing this, but I think this dovetails. I'll read paragraph four, right? High-level command staff within the police department went on a crusade to target people in homes on Elliott Avenue, which was where Breonna Taylor lived. A small street in West Louisville. People needed to be removed and homes needed to be vacated so that a high dollar legacy creating real estate development could move forward.

0:11:21 Andrew: And again, the reason I say this is not tinfoil hat territory is because I have represented developers, and absolutely, 100%, when you have a high profile development, you are working in in conjunction with either the state or the local government, often both, right? I have talked about my involvement in the billboards cases, right, in which I was co-counsel on cases, again, with excellent co-consul, from the Mayor of Baltimore City's office. I was a co-consel with them for years, right. So this is not a, oh, well, you know, the rich people have the police in their pocket.

0:12:08 Andrew: This is, if this high-profile development, 100%, I'm telling you as a lawyer who thinks there's nothing wrong with this, right? Like, because if you're a developer looking to invest in a city, you talk to the city. You talk to state officials. You say, hey, I'm going to invest tens of millions of dollars in development. It's going to bring hundreds of jobs. Let's work together on that, right. You could, I guess, criticize the capitalist system if you want. But like from a legal perspective, that's an ordinary course of action. Now, continuing. An entire police squad was created and was primarily devoted towards targeting homes and people on Elliott Avenue. Okay, that evidence you have to evaluate for yourself. It's set out in the complaint. We don't have time to go through it.

0:12:54 Andrew: One of the primary roadblocks to this unit and the real estate development project was an ex-boyfriend of Breonna Taylor who rented a home on Elliott Ave. The police unit's efforts to clean house on Elliott became so outrageous, unlawful, corrupt and rake, and reckless, that a bogus no knock search warrant was obtained for the home of Brianna Taylor, a woman with no criminal history, no drugs in her home, no targets in her home, and whose home was more than 10 miles away from Elliott Avenue.

From there, the named defendants made error after error, violated policy after policy, and committed unlawful act after unlawful act, resulting in Brianna being taken from the Louisville community and from her family far too soon. So, again, I, I think your characterization of you know, maybe stepping into conspiracy theory, I don't think you need to go into conspiracy theater land, right, I think, um, that, again, that's the position laid out by the other side, and it deserves, as an argument, it deserves at least as much weight as we have given to other arguments, and, um, you know, how the facts shake out, well, I think that transitions nicely into

0:14:05 Andrew: The question that I wanted to answer, which is, have talked to three separate prosecutors since the news came out that a member of the grand jury has come forward and called for the full transcripts to be released, alleging that the public statements do not match up with the ex parte presentation before the grand jury. And I asked all three of them the same question, have you ever heard of this? Have you ever seen this? Does this ever happen? And again, these are people, in one case, somebody who's prosecuted hundreds of defendants, including some high-profile criminal defendants. And all three told me, I've never heard of this. I've never seen this. This is absolutely unprecedented.

0:14:05 Thomas: Oh,

0:14:50 Andrew: It. Now, important questions. Number one, sometimes grand jury material is disclosed, and we've talked about in connection with the Mueller report, like the various statutory exceptions. Again, it is presumptively, right? It is presumptively not to be disclosed to the public because of its potential prejudicial effect on ongoing investigations. The Attorney General's Office can waive that, right? So there are a number of potential outlets, right, before that story broke, which was when we covered it on the show, I said, grand jury material is confidential, it's not coming out. I would say it's still unlikely, likely, um, but But Yeah, they say they were going to release all of the, uh, the Brianna Taylor material, yeah.

0:15:36 Thomas: I thought they said they were going to I, I had seen that they were going to release the recordings and now we're checking and it says, uh, the, the release is delayed now for some reason, which is interesting.

0:15:52 Andrew: So I would say that that continues to be an unknown. There are mechanisms, and has triggered that highly unusual circumstance is the public story from a member of that grand jury. And again, I think this goes to illustrate the value of participating, demonstrating, being a part of the system, speaking out. I also want to answer a question that a lot of people have asked, and I think this might have even been a bar question you did, Thomas, way back when, and that is absolutely no process attaches to the refusal to indict someone by a grand jury. So there is no concern here with double jeopardy, Absolutely not. Um, a, a failure by one grand jury to indict does not mean that a subsequent presentation cannot be made to a subsequently impaneled grand jury, and, uh, and, and further indictments may, may be handed down.

0:16:39 Thomas: Oh yeah. No double jeopardy. Yeah.

0:16:55 Thomas: Yeah. I think this is one I had with Seidel. Cause I remembered, I was like, well, I know it's when the jury sits. And I, so I thought like, oh, grand jury. Does that count as a jury sitting? Didn't you know, and I think I got it wrong, and then he's like, no, it's, it's not, and he got it right, I'm pretty sure. Yeah, so, wow, very interesting.

I, I didn't know that a bar question we handled was going to exactly apply to what we're talking about, um, also, I wanted to say, and I want to kind of run this by you, uh, to further emphasize how much, you know, if you got those Uncle Franks out there trying to say that, well, you know, they, that's what happens when you fire at the place, like, like they didn't even charge her boyfriend with anything. You know, they weren't able to say like, y'all, you fired at an officer. So we're like, which don't you think they would have if they could have like they would have charged him with, you know, endangering a police officer or whatever it would have been, you Know, so what do you make of that on

0:17:00 Andrew: Yeah, there you go. See, correct.

0:17:37 Andrew: Yeah. I don't know that I draw, I, again, I lack the experience here to, to draw any kind of inference one way or the other. Right, it all, I would say, falls under the rubric of prosecutorial discretion. I, I think the argument you're making is very valid, right, which is in general cops tend to come down hard on people who who shoot at cops, yes.

0:18:15 Thomas: People who shoot them? Yeah.

0:18:17 Andrew: Um, on the other hand, you could see, uh, I mean, the whole idea of prosecutorial discretion is designed for situations like this where yeah you know yeah where you're like, um, maybe this would not be the most, um, opportune moment to yeah

0:18:24 Thomas: Yeah. It's like after they've murdered somebody in the house that maybe they're like well, okay. OK, so I hear that. But could it also be the case that it's like, well, maybe when you lay out this case, it doesn't look that great for the police officers. But by the time you talk to all the witnesses and look at what happened, the fact that like, what was this warrant? Why did they have, you know, all things that I would imagine would come out at a trial in the case of the boyfriend. But yeah.

0:18:56 Andrew: Absolutely and, and, and, and again, the answer to that question, is it plausible? Yeah, it absolutely is plausible.

0:19:04 Clip: Andrew Torrez is wrong, wrong sir, wrong sir, Andrew Torrez is wrong, wrong, wrong.

0:19:17 Andrew: Received an email criticizing us, quote, from the right, this is something that I do, at a productive discussion with a listener named Andrew who took me to task. And I think that ultimately we came to a resolution, so I'm pleased about that, that his initial email said that I had made two statements contained in a sentence and one omission. And I stand by what I said, but I do want to clarify what it was that I said, what I'm talking about. And again, be 100% accurate. And as a little bit of a look behind the scenes, a lot of what I do for the show every week, as a lot of listeners know, is, is scripted, right?

I send you, you know, 17 pages of notes and we work from that, but part of what makes the show fun is you'll throw me curveballs that I'm not quite expecting, and sometimes I will go off script, and when I go off script, that increases the likelihood that I've got to do when Andrew Was Wrong. I, there's... There's a, a technical error here that has to do with my transposition of the word federal in a particular system. I don't want to minimize this, right? Because when I say that our criminal justice system is racist, it is more correct to say we have 50 racist criminal justice systems at the state level,

0:20:49 Thomas: Right.

0:20:49 Andrew: Many of which are getting better, but all of which have systemic structural racism, right, And a racist federal criminal justice system on top of it. And so the important distinction between that is that the state level, as we've talked about on the show many, many times, has plenary police enforcement powers. They can pass laws for the general welfare that require no further justification. So most of your day-to-day criminal offenses are state offenses, federal criminal offenses have to be specifically enumerated statutory crimes, right, and states can also arrest you for common law crimes, right, like, so if the state doesn't have a definition of, say, murder, although they all do now, they could arrest you for common law murder, right.

0:20:58 Thomas: Right, right.

0:21:38 Thomas: I wish there was one state that's like murder. We've never never heard of that. Yeah. One of the Dakotas, they're like, there's only been one person here. How could they murder?

0:21:42 Andrew: Yeah that would be fantastic.

0:21:52 Thomas: Yeah, right, I saw Fargo. Isn't that in one of there's all kinds of murder happening there. Of it's all murder, actually.

0:21:53 Andrew: Yeah there we go, we, we apologize to our non-existent North Dakota listeners for calling them all murder victims. Anyway

0:22:04 Thomas: As soon as they get the internet, they might listen to our show, and then we'll apologize, but before that, anyway, go on, which

0:22:05 Andrew: Uh, this is, I look forward to the fact that I'm the one that usually reads our email at open arguments at gmail.com anyway, so federal, government government of enumerated powers, so, uh, that includes, for example, most of your white collar criminal offenses, right? We had, just last episode, we had our buddy Randall Eliason on to explain white-collar crime, right, and that's because things like wire fraud are interstate, right. So I send the email to New York, I've now committed a crime in both Maryland and New York, and since it's gone across jurisdictions, we can pass a federal law about it.

All of what that means is that it is correct to say that a competing majority of federal crimes, it's currently down to 47%, but it's down to 47% largely because immigration-related criminal offenses are up, so I don't know how great that is. But right around 50% of federal federal criminal inmates are in on statutory federal drug offenses. It is not correct. So now, with that sort of this background, here's what I said. I said, the overwhelming majority of federal inmates in this country are black, and statistically speaking, they're in prison for a nonviolent drug offense. Let me break that down for you. And again, it is not incorrect that the overwhelming majority of

0:23:43 Andrew: Federal inmates are black. It is correct that the overwhelming majority of all inmates, federal and state, yeah, it's way worse, right?

0:23:42 Thomas: Is worse, federal has like not very many, the states have all the inmates, right?

0:23:55 Andrew: There are about one and a half million people in prison in this country. The number is really hard because, because particularly at jails, and you'll see like 2.2 million to 2.4 million when it will include prisons and jails. But jails have a revolving population, right? Because people get arrested, picked up, thrown in jail for the weekend, thrown, thrown into jail, pending bail, which they then don't make, because they get, right, like, and then released, and then picked back up again, and right, so it is, it's super hard to get numbers, uh, on prisons and jails aggregated together.

It's hard, uh, but we have data through now 2018 to get data on state and federal prisons, so about a million and a half inmates, federal inmates make up about 200,000 of that population, larger than any one state but not larger than all of the states put together. Right, so keeping in mind that African Americans are 13% of the population, they are 40% of federal inmates. Now, that is not an overwhelming majority. It is not a majority, um, they are, however, uh, when you include, uh, black and brown people, when you include Africans and Hispanics, as, uh, there's, there are not even other subgroups in the overall state and federal prison populations.

0:24:58 Thomas: Right wow

0:25:34 Andrew: Combined, African Americans and Hispanics make up 70% of the prison population in this country at the federal and state level added together. I will include the stats in the show notes. We have data through 2018. 18. It's actually the racial disparity has gotten better, started getting better under Obama, and has gotten bigger over the last 10 to 13 years, right? So bottom line, despite being 76% of the population, white people make up 30% of our prison population. They are the only demographic group that is underrepresented rather than overrepresented among the prison population, So I 100% should not have put federal in front of it. It was a verbal slip because what I was thinking was, how do we do something, right? This was in the context of what

0:25:39 Thomas: That's insane right

0:26:31 Andrew: Do we doing to solve our racist criminal justice system, our racist, criminal justice systems, and there's no one-size-fit-all plan for the states because they're 50 different states, right. So I was thinking about what can we do at the federal level, and that gets to the second half of the statement, which is when you talk about the federal system, the first thing you must discuss is fixing drug offenses. Drug offenses are now 47%. I said they were the majority. I was wrong. The overwhelming plurality, often the majority, 47% of federal offenses.

0:26:40 Thomas: Yeah yeah are these drug

0:27:13 Andrew: Offenses, they they are separate, violent offenses of any kind right, and so you get multiple, uh, you, you fall into multiple categories, are less than eight percent of federal, uh, inmates, yeah.

0:27:13 Thomas: Offenses, or are these non-violent drug offenses? There's a pretty okay oh well, federal, yeah, that makes sense but if, but it, but at the state level, it's not going to be that small, I don't think, right?

0:27:31 Andrew: Right, exactly um right at the state level, drug offenses are about 20, because there's all the, the other crimes right so yeah, um, I, I want, I, I will include a literature review, and I will tell you the overwhelming consensus of the scholarly literature is, quote, thus any efforts to reduce federal incarceration should start with drug offenses, end of quote. That is just beyond dispute. If you want to reduce the federal prison population, you have to look at how we lock up people for drugs in this country.

0:27:40 Thomas: Yeah yeah and I, I like how that stated, because that's not gonna solve everything, that doesn't mean like The problem will be solved, but the first place to start would be, let's take this thing that is often a, a medical issue, you know, like it's something someone needs help for rather than being locked away for, and something that can, you know, most often is, is just something someone's doing to themselves. They're not hurting anybody else. Let's start with that. And that's the quickest way to to start making things better.

0:28:13 Andrew: Nope. And finally, and this was the omission that we do not have time in this intro A segment to talk about, but Andrew chided me for eliding over the distinction between drug possession and drug trafficking. And I will tell you that is intentional. The way in which drug trafficking is prosecuted in the federal system is by inferring intent to distribute, right? Intent to traffic in a controlled dangerous substance under 21 U.S.C. Section 841 based upon the quantity of the drugs that you have. And again, the overwhelming consensus of the scholarly literature is this has unbelievable racial bias baked into it.

0:29:27 Andrew: It was a cornerstone of the 2010 criminal justice reform to eliminate the 100 to 1 disparity for the possession of powdered cocaine to crack cocaine, because powdered cocaine is what white people do and crack cocaine is what black people do. And again, I am describing a prejudice, not making a factual statement there. But if you look through 21 U.S.C. 841, I am no expert in the quantity of LSD that one must possess in order to be a dealer versus a consumer.

0:30:00 Thomas: Yeah, I have a cup. I don't

0:30:05 Andrew: I will tell you, right, like the marijuana amount is listed in kilograms, right? Right. So look like it. I have to defer to experts and experts tell me that those quantities have a considerable racial bias component to them. So we should do a deep dive in an episode on drug trafficking laws. Don't have the time to do that here. But

0:30:05 Thomas: Know. I got a fluid, eight, four fluid ounces. I know we've got to

0:30:37 Andrew: Yeah.

0:30:37 Thomas: Get to Trump's just unbelievable tax situation. Situation. All

0:30:38 Andrew: Yeah. But that is. Yeah, but That is intentional. So if you move the word "federal" from the first clause of my sentence to the second, it becomes accurate. But look, like, A, I want to stand by what I said. And B, like, I think we learned and were able to sort of discuss in greater depth the underlying biases in our criminal justice system. So I appreciate the email. It was a little bit of a call out at first, but uh, but hey, um, we uh, you know, we stand by the work we do here on the show, so

0:31:14 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.

0:31:32 Thomas: Time to talk about the fact that we pay more in taxes for this episode than Trump pays in a year. Uh, where do you want to start? I want to, where do, do you think they got these things?

0:31:32 Andrew: Uh-huh. And Don't we jump to that first? Because certainly one of the talking points you saw raised in advance of Tuesday's debate is the idea that the New York Times is breaking the law. Yeah, the

0:31:56 Thomas: Well, My favorite thing was that the New York Times went and stole Trump's totally fake tax returns that aren't the real ones, so they were, so they both, they both were stealing from the IRS, like his tax returns, but also they're fake. So they went to the fake IRS and broke into the fake IRS building that has all the phony return. Yeah.

0:32:17 Andrew: IRT. Yeah Exactly. Yeah, that's how you know you're dealing with pretextual arguments. But look, let's go through, let's talk about the legal standard here. Let's talk about what the Times has said. Most importantly, the Times has not released the actual documents. Usually that is a prerequisite. It, before we cover any story, they have said we're not going to do that because it would compromise the identity of our confidential source.

0:32:18 Thomas: Yeah.

0:32:44 Thomas: Why didn't they just, I had a thought though, like, why didn't they just take the data and put it in generic tax form format? Like, there's no way they could get, you know, like how would anyone know who leaked?

0:32:55 Andrew: I I I will tell you maybe why they didn't do that in, in part of the standard here, right? And again, it's not how I would advise the New York Times, but you know, look, the New York Times has better lawyers than me, so maybe they got good advice and maybe, maybe I'm wrong. But so do I think these came from? I think these came from an accountant or a staff employee at Mazars, right? I think this is one of Trump's accountants, somebody who works for them. I am positive there is an internal investigation going on at Mazars to try and figure out, and again, this is all, you know, as as our friend AG would say, it's all beans, right?

It's speculation. Um, but uh, here's what, what the Times has said is uh, that we received the information from someone who had a lawful right to have the information. I'm going to explain why they said that uh in a minute. Um, but but the, but the phrase they used was it's a source quote with legal access to the information, and that has to be because everything else is still in court, right? To make that statement, that has to mean that it is one of Trump's accountants or somebody else to whom Donald Trump has provided this information voluntarily.

0:33:01 Thomas: Okay.

0:33:40 Thomas: Speculation.

0:33:55 Thomas: So not somebody working in the IRS or something like that.

0:34:26 Andrew: I the the reason is because there, there is still the House lawsuit against the IRS for failing to produce Trump's tax returns to the House Judiciary Committee, still pending, right? So they

0:34:35 Thomas: Well, yeah, But that person, like if somebody works in the IRS, they could still have legal access to the documents, couldn't they, or is that

0:34:47 Andrew: Can have legal access to the documents, but it would violate uh the the second standard. Let me go, let me give the standards first, okay?

0:34:48 Thomas: Okay. Sorry. Right.

0:34:55 Andrew: So um, first let me get the one we don't have to talk about, which is even if these materials were illegally provided to the Times, it would be perfectly legal for the Times to release them, right? That does not mean that the journalists themselves would be immunized from liability. That's the Pentagon Papers case. That is New York Times v. United States, 1971, 403 US 713. We've talked about that hundreds of times on the show already. Pentagon Newspapers, no doubt they were classified top secret, no doubt it was a crime to leak them to the New Yorg Times, uh, and no, uh, the Nixon administration could not stop them from publishing. But if your uncle Frank and the Trump campaign is definitely saying, well, you know, we're not saying, and look, they didn't even try to get an injunction to stop the New York Times from printing this story, right? Because it is clear, clearer than Kushner, right? Um, if they are saying, okay, fine, yeah, yeah, yeah, we've got this stupid free press in this country, you know, we won't, we won't for much longer if you re-elect our dad, but you know, uh We

0:35:56 Thomas: Our dad No, this was great comedy. Andrew, just killer.

0:35:59 Andrew: Are, uh Yeah. Thanks.

0:36:01 Thomas: So

0:36:02 Andrew: Um, but But the New York Times is still committing a crime. And here the answer is, no, they almost certainly are not. And the case is a much less well-known case called Bartnicki v. Vopper, which had to deal with a newspaper receiving a cell phone that was illegally obtained. And I'm not going to go into the details of the case because we don't have time, But that case essentially set out three criteria that protect a newspaper or other news source for publishing material, even if the underlying material was not, at the end of the day, legally obtained, right? So it's not a, like, fruit of the poisonous tree, if you can establish at some point that, you know, this document was illegally obtained, then the liability runs all the way through to the press.

0:36:54 Andrew: No, no, no. The criteria are these three. Number one, the media outlet, the newspaper or other publisher, must play no role in the illegal interception of the materials. Number two, they must have received the information lawfully. We're going to talk about that in a second. And number three, the issue must be a matter of public concern. So obviously, Trump's taxes are a matter of public concerned. The prongs apply is they really collapse into one inquiry, and that is, did the press conduct any illegal investigation of their own or encourage their source to break the law or otherwise unlawfully obtain the documentation?

0:37:40 Andrew: And if they didn't, if they just get documents and publish those documents, and they have no reason to believe that it is not a source with legal access to the information, then they are fine.

0:37:53 Thomas: Like if they had said for example, hey Russia, if you're listening, send us uh the end of the joke, that's it, that's all I got it's obviously what he was doing with that

0:37:55 Andrew: Now, yeah, oh, sorry, good, good. I was interrupting, and I was like, oh I felt bad for interrupting, yeah. Yeah, yeah obviously that is illegal, and look, this is why I think that it Mazars, because it is not illegal for an accountant at Mazars to release Donald Trump's taxes right now to the public. It almost certainly violates their contract with Donald Trump, right? He could sue them civilly, but it is no...

0:38:04 Thomas: Really there's no law about like releasing private information, that something, haven't we talked about that with doxing, kind of, look you can't get one past me, I'm a trained attorney, Andrew.

0:38:30 Andrew: Yeah, so let me... Okay, let me not say it. No, no, that is a great way to kind of cabin my response. I am in no way encouraging, although I, I kind of am, I think you should take this risk, but not as a matter of legal advice. I am not opining that if you work for Mazars you would face no hypothetical imaginable criminal activity, but but what I am saying is that it's different than a government agency releasing confidential government documents, right? Like if somebody at the IRS leaks Donald Trump's taxes to me, they have violated federal law.

0:39:15 Thomas: Gotcha.

0:39:15 Andrew: If Mazars does, they, they have not violated the same provision of federal law. Could there be, if the, if you took, you know

0:39:24 Thomas: So it could be like a civil suit but that's not as though the government's coming after them

0:39:25 Andrew: Yeah, and and and could there be a potential criminal liability for uh, you know, malicious invasion into someone's private, you know, I don't know. I don't want to say that there's that there's no potential theory. I do want to say that it is a far, far different, right? Like IRS disclosure plainly would violate the applicable statute. There is no similar applicable statute that says we start jailing accountants who disclose their clients' tax returns. That's all I'm saying with respect to that. So put all of that together, I feel very confident that the New York Times is on perfectly solid footing, and this is not only 100 consistent with the way the First Amendment law has operated in this country for at least 50 years, but as your joke points out, it is 100, and this is the, the hook you use back on uncle Frank, it is at least as as as permissive as Donald Trump going on national television saying, I love WikiLeaks, right?

0:39:51 Thomas: Gotcha.

0:40:26 Thomas: Yep.

0:40:26 Andrew: If that wiki links had criminally obtained, illegally hacked documents, and Donald Trump was like, well, obviously we get to see those, right? So, you, you cannot have it both ways, right? The New York Times, there is zero evidence, uh, and, and I, I take them at their word, uh, uh, that they participated in any kind of illegal mining. If they did, um, then those journalists will be subject to potential, uh, uh, civil and criminal.

And we, in fact, discuss this, the fact that there is no federal reporter's privilege to shield your sources, back in episodes 200 and 201, including having on our buddy Randall Eliason to take a little bit of a counterintuitive position that I think is well argued, even if I'm not completely persuaded, that says there shouldn't be a federal reporter. Privilege, and he talked about the, uh, the Balco Barry Bonds case and, um, the shenanigans conducted by reporters in illegally leaking grand jury testimony that, that they knew was illegally obtained, right? And, and so clearly violated the Bart Mickey versus Vopper standard. So, um, we've got, we've got primers on all that, back, go listen to episodes 200 and and 201. So that covers, I think, that sort of question of, where do I think this information came from? And is there any potential liability? And I think no, right? The New York Times is not breaking the law. I think they got this in a perfectly valid way.

I think that argument will not go anywhere. Other area that I think is incredibly interesting is we have to go, oh, oh, by the way, to pull that pin out. So, because of that second requirement under the law, if the New York Times were to make, for illustrative purposes only, tax forms with all the data, know, were to recreate tax forms with all of data.

0:40:37 Thomas: Okay.

0:42:28 Andrew: It might, and again, you'd have to be an exceptionally paranoid lawyer to advise your client not to do this, but yeah, maybe they do. It might support an argument that says they're fabricating evidence and therefore participating in Illegal news gathering, right? Yeah, I, I don't know, but that's the, that's the first place my mind went as to why they didn't do that, because I totally agree it would make this story so much easier and and more powerful. Right, easier to understand and more powerful if they just stuck the data, you know, they recreated, They went to the IRS form right now and said, "Look, this isn't Trump's tax return, but it might look something like this," right? So, yeah, me too.

0:42:43 Thomas: Yeah. Yeah. I was really wondering why they didn't, but yeah, okay. Just, Being very careful.

0:43:13 Andrew: I think that's what it is. So here's the story, and I'm going to tell you how my knowledge of a particular statute, right, and that is 26 U.S.C. section 172, means that I think Donald Trump accidentally confirmed the accuracy of this story during Tuesday night's debate. Now, I will tell you, I had to go dig up the transcript of Tuesday night debate because, as we talk about on SIO, much of it was nigh incomprehensible.

0:43:13 Thomas: Yeah.

0:43:46 Thomas: Unbelievably.

0:43:48 Andrew: But get there. New York Times, the story essentially goes like this. They have thousands of his tax returns, both, both personal and corporate. Together, they paint a picture of a man failing at business, with, with massive debts coming due, who was thrown a lifeline in 2004 with the surprise hit The Apprentice, who then earned 427 million dollars in income from being a game show host, which bailed out those debts, but Donald Trump being such a, such a preposterously awful business person. Yeah.

0:44:26 Thomas: Terrible, terrible businessman.

0:44:27 Andrew: Uh, quickly looked for a way to, uh, spend that 427 million and funneled into not only propping up his existing failing businesses, but acquiring new and equally terrible failing businesses, which continue to fail and continue to feel like some of this. It is amazing to me. Now, again, the taxes end at 2017, but we still have a year's worth of graft, right, from being the president, and, and again, we know this from the emoluments cases, Directing foreign diplomats to stay, uh, at the Trump Hotel, which was converted from the old post office building, uh, which is on, I believe, 12th Street and Pennsylvania Avenue, was right across from my old office at Covington and Burling, back when Covington and Burling was on Pennsylvania Avenue.

They, they have since moved. So, in any event, I used to go to that old post office building, it had like a food court in the basement, and, uh, and I would run there for lunch when I worked at Covington. And then the, the building was mostly vacant office space, it was sold to Donald Trump, turned into a terrible, gaudy, tacky hotel, which is still losing money as of 2017. So that's the story, terrible business, cash infusion

0:45:49 Andrew: From the Apprentice, invested into his failing businesses, which continue to fail, such that he is now looking up at 421 million dollars in total debt, of which 300 million is due in the next four years, i.e., in his second term if that were to happen. That the properties are sinkholes, that they are drastically over-leveraged because of the amount of money that has been funneled into them, and so therefore the kind of thing that an ordinary business person might do, right, which is to say, okay, I've got this money coming due. Um, yeah, again, think about this like your house, right? If you had a, most people go the other direction, but, but imagine you had a 15-year mortgage with a balloon payment due, and this was year 14, and you were like, oh, man, this is COVID.

0:46:42 Andrew: It's a pandemic. My income has taken a hit. I want to refinance my property, assuming that you paid 14 years on the mortgage. It would not be hard to then convert that into a 30-year package. And roll that balloon payment. The bank would be super happy. They're like, yeah, you've got all this equity in your house. You want to pay us more interest? Sure, go right ahead. But you can't do that if you don't have equity in the House. And that's what the story is, is that all of these properties that are collateral for his various obligations are massively overleveraged. And therefore, Trump will not be able to refinance that debt. Those payments will come due. And they have a fantastic piece of evidence for this.

0:47:31 Andrew: I do not know why this piece has not gotten more attention, because you, with an accounting background, will instantly recognize this. I, as a lawyer, instantly recognize this. They know this because Donald Trump has had to sign personal guarantees for these loans. Now, that, and again, let me explain the significance of that. My operating account for the Law Offices of P. Andrew Torrez is secured by a personal guarantee. Why? Because I'm just a guy who quit, like, a super lucrative law firm job to start a not very lucrative personal law firm, and so the bank was like, I am not loaning you any money unless you agree. Yeah, because, like, what is the Law Offices of P. Andrew Torrez LLC, right? That's just a paper LLC. It has no assets.

0:48:20 Thomas: Well, I assume this was all backed by tons and tons of transformer toys that you're like, okay. Yeah.

0:48:25 Andrew: It was. It was. They're like, we need actual collateral. We want to be able to get at your transformers in the event that you don't pay back your loans. And so I had to sign. I had to personally guarantee those loans because I didn't have an established business with established assets.

0:48:33 Thomas: Right. Sign over your transformers, sir.

0:48:47 Andrew: Notice the if-then portion of the statement, right? If you have an established business with established assets, generally speaking, you can get a loan against the assets of that business and not have to secure them personally. Donald Trump, known as somebody who has declared and brags about having dragged his casinos into bankruptcy on four separate occasions, he 100% understands this distinction, right? He knows, yeah, if you can borrow money, you borrow money against the business asset, and then if you don't pay it back, bankruptcy, whatever, right? The only reason you would personally guarantee loans if you were Donald Trump is if that was the only way you could get those loans, right? Because he is not going to declare personal bankruptcy, right, that would wipe out a lot of his fraud.

0:49:38 Andrew: That is 100% an indication that that allegation that his, his properties are over leveraged is correct. Trump was asked about that, um, well, again, he wasn't asked about the over leveraging of the properties. All Chris Wallace asked him at the debate was did you pay 750 in taxes in, in 2017. Here's what Trump said though, because he has this habit of saying the quiet parts loud, yeah.

0:50:07 Thomas: Uh, Hunter Biden, uh, Burisma. And he just, yeah, that,

0:50:12 Andrew: Said, "No, no, I paid 38 million dollars one year, I paid 27 million dollars", which is of course consistent with what the New York Time story shows, and it's actually super damning, right? Like, it is, one year of tax returns is totally meaningless, right, right? Undoubtedly, Trump paid that $38 million and the $27 million back in 2005, right?

0:50:37 Thomas: Is that the amount that he got back? Cause that's the most outrageous is part of this entire story.

0:50:41 Andrew: We're about to look that up. When Donald Trump was being paid for The Apprentice, for which, and again, he earned $427 million as a game show host, right, right.

0:50:47 Thomas: Yeah. Yeah. It's like the only thing he's paid taxes on in his life because he had to.

0:50:57 Andrew: You can't hide that. That's right. Can do what Donald Trump did, what the New York Times alleges that Donald Trump did. Which is, okay, all right, I get these huge tax checks coming in from the apprentice. I have no choice but to pay taxes on the apprentice money.

0:51:12 Andrew: Except that there's a provision in the tax code that allows you to take future net operating losses and offset them against past taxes paid, and actually get a refund for those taxes. Paid it.

0:51:26 Thomas: Well, and I think if I remember right from reading the article that it was part of Obama's effort to help people during the downturn, like after 2008. And I think that was interesting that he specifically took advantage of that.

0:51:35 Andrew: Yep. And and It's 26 USC 172. I'm going to put all the puzzle pieces together, but I definitely do want you to put a pin in that. But so, so, yes, so the New York Times alleges that yes, he paid a whole bunch of taxes because he had to when he got the infusion from the Apprentice. He spent that money on his terrible businesses. And then generated huge losses, which he then used to file lookbacks of net operating losses to offset and wipe out those taxes paid and receive a $70 million tax refund from the government. Right, so whenever Trump says, "I paid 27 million dollars one year," well, that, that is, that tells you nothing if you get a 70 million dollar refund four years later, right?

0:52:25 Thomas: Yep.

0:52:26 Andrew: Give Chris Wallace some credit here, because yeah, because when Trump said, when Trump said, "I paid 38 million one year," and Chris Wallace said, "I'm asking you a specific question, sir," And that is, "Will you tell us how, how much you paid in federal income taxes in 2016 and 2017?" And then Trump probably lied and said, "Millions of dollars. You'll get to see it, you're going to see all of it."

0:52:28 Thomas: Nope. Listen to SIO. Yeah.

0:52:52 Andrew: You'll, to which Joe Biden laughed and said, "Well, you could release your tax returns." And then, and this is, I realize it took a little bit to come around to this, but then Trump says, continuing the sentence, "You'll see it as soon as it's finished, you know, if you wanted to, go to the Board of Elections. There's a 118-page or so report that says everything I have, every bank I have. I'm totally underleveraged because the assets are extremely good, and I built a great company." Want to break that down, and I want to tell you I'm going to have to punt on an entire segment here that's super interesting, and maybe I'll move it to next week. I don't know about what actually is disclosed to the the Board of Elections, uh, but spoiler, not that.

0:52:38 Thomas: Yeah. Oh yeah yeah

0:53:39 Andrew: There is no such report. We will talk about it. What there are, are two public disclosures that Donald Trump has made, one in 2017 and one in 2018, that we have actually talked about, because the 2018 one was made to, quote, "clarify payments to Michael Cohen in connection with our Stormy Daniels investigation," and, uh, there was not a, a footnote, this is the weirdest thing, it's just a six-point font addition at the bottom of page 43 that says, "In the interest of transparency, while not required to be disclosed as reportable liabilities on part eight, in 2016, expenses were incurred by one of Donald J. Trump's attorneys, Michael Cohen. Mr. Cohen sought reimbursement of those expenses, and Mr.

0:54:25 Andrew: Trump fully reimbursed Mr. Cohen in 2017, the category of value would be between $100,000 and $1 to $250,000, and the interest rate would be zero, end of quote. Yeah, that is hiding payoff payments to Stormy Daniels. These public disclosures list Trump's valuation of his assets within certain ranges, And again, they're not 118 pages. They're 92 and 98 pages, respectively. But they don't show, right? It's like saying, I report that I have equity between $1 and $500,000 in my house. $1.00 and $5,000.00 in my House, right. That doesn't tell you anything, Right, like that is my estimation of what the equity in the house is, uh, and it ranges from basically zero to greatly exceeding the value, triple the value of my current house, um, and, uh, it, it, it does not, it crucially, it cannot answer the leverage question, right?

Like, if I had a hundred thousand dollars equity in my house, but I have a hundred thousand dollar mortgage secured against it, right, then a second mortgage, right, say a, uh, a home equity line of credit, then I have zero equity, right? Like, I owe the bank $100,000, and they can take that out of the $100K equity in my house.

If I have $100k equity in the house, and for some reason I have a million dollars in loans outstanding, right, then I don't have any equity in house, right.

0:55:11 Thomas: Oh

0:56:01 Andrew: Like, "you leveraged" someone is from this disclosure report, so that was an out and out lie. It gets better, and this is the part to which you were alluding, that all of us scratched our head, that in my mind absolutely confirms the accuracy of the New York Times reporting. Trump says, "Chris, just let me say something, that it was the tax laws, I don't want to pay tax, before I came here I was a private developer, I was a private business person, ball, I love that, like every other private person, unless they're stupid, they go through the laws, and that's what it is," he, and pointing to Biden, meaning Obama, "Biden passed a tax bill that gave us all these privileges for depreciation and for tax credits, we build the building and we get tax credits, like the hotel on Pennsylvania Avenue, that is the Trump old Post Office Hotel.

Which way, was given to me by the Obama administration, if you can believe that. And now, that gets into my favorite citation from this episode, 26 U.S.C. Section 172. And it is substantially, as you have described, which is, this is the Worker Homeownership and Business Assistance Act of 2009. It passed the House in a bipartisan fashion, 331 to 83, and the Senate, 98 to nothing. And it was as part of bailing out the economy from the Bush recession. It had a number of very important provisions in it, extra 20 weeks of unemployment benefits. It had an extra 14 weeks to states with improving unemployment that still needed some help.

0:56:54 Thomas: God it's ralph wiggum explaining we dumb well

0:57:51 Andrew: So 20 weeks to states with unemployment rates that were over eight and a half percent, 14 states with lower unemployment, extended the homeowner's tax buyer's credit, right? Bunch of other stuff designed to help people get back to work in in an economy that was terrible, that Obama was doing everything to turn around. Included in that was a provision that changed how far you could look back for net operating losses. And it expanded that from three years to five years.

And the idea behind that was, again, in a bipartisan sort of way, if you paid taxes on your business in 2006, 2005 and 2006, then the economy went into the toilet in 2007 and 2008, and you are slowly turning around in 2009, a way to get a secondary cash infusion to, to those small businesses would be to say, "Oh, look, like, yeah, you were healthy when the economy was healthy. You were devastated when the economy was devastated. You can offset the healthy income with the current devastation. And if you paid taxes, you can file and get a refund." So expand it out from three to five years for that purpose. And this is what the Times alleges that Donald Trump was able to do to wipe out 100 of the income for the Apprentice, right, so 2004 is when he starts

0:59:37 Andrew: Earning money from the Apprentice, and it just so happens that this 2009 provision now allows you to look back to, including that year, and so then turned around and filed and got back every penny of taxes that he paid legitimately on the only real income he's ever earned in his life. Now, Donald Trump says, "Ha ha, like Obama, you created this incredibly stupid thing that allowed me to go back and get five years of taxes." How much would it surprise you to learn that 26 USC 172 was subsequently amended by, by Donald Trump's tax bill in 2017? Well, yeah, so Donald Trump, having made fun of Obama for giving him this huge tax windfall in 2009, absolutely 100% amended this, this, this precise section with his 2017 tax bill. Changed 26 USC section 172 B1, governing the five-year look back on net operating losses. What do you think Donald Trump did with that provision? He made it 20 Years, yeah.

1:00:22 Thomas: Amended how made it 10 years, 20 years.

1:00:53 Andrew: If you go now, it says, uh, that your net net operating loss for each taxable year beginning before January 1st 2018, to each of the 20 taxable years following the taxable years of the loss. Do not allow Donald Trump to say that this is, uh, "I'm just following the laws that Obama put into place," because the minute he got the levers of power, uh, he quadrupled that exception. Of course you would, right, like this is

1:00:54 Thomas: Wow.

1:01:24 Thomas: By the way, at a time of extraordinary, extraordinary economic growth for those at the top. So it might've been one thing in 2008 and 2009 to say, wow, people have really taken a hit. Uh, we're going to let you offset some of your, you know, maybe you had a good business here in 2006. Um, but you know this downturn, maybe this will help. Let's let you offset this. In 2017, there was no such a problem.

1:01:25 Andrew: Yes yeah, yeah yeah, absolutely right. I mean, all of this, and, and we have seen, we have matched it up, uh, with the, uh, economic growth rates in the Trump administration, uh, that were in place, and until he decided that, you know, a pandemic was no reason for anybody to do anything, thing um, the, the, the modest rates of growth, uh, in the first three years of the Trump administration are utterly unaffected by the 2017 tax cut. We've talked about that at great length. So the arguments that, uh, that this jump started the economy are bogus, the arguments that it did anything for the economy or bogus, and any of the public policy reasons why you, you might want to bail out businesses in 2009.

1:02:33 Andrew: We're certainly not present in 2017. So put all of this together, and I think that this is really, really important. There is some potential criminal activity in connection with the New York, particularly in connection with the New York Times earlier reporting, right, that has to do with how Trump values his businesses and differing valuations for securing loans versus paying taxes. But so far from this story, and I think this is really, really crucial, because you saw Trump sort of take the position of like, "Well, it's not illegal." I don't give a damn if this is legal or not, right, this is absolutely a signature issue of what our country should be like, right, which is: do you want to encourage a system and reward a president who uses the tax laws to enrich himself at the expense of everyone else, uh or, and and do you wants somebody, who you elected, the very first thing they did, literally like his only major legislative accomplishment, accomplishment is to quadruple that loophole or do you want to a more fair tax system, right? Like that's, you know, they're great

1:02:56 Thomas: Yeah. Okay. I

1:03:52 Andrew: Many

1:03:52 Thomas: Want to, Uh, you had your top line say, I want to have my top line say, I do care whether or not this is illegal. I also think that I, there's gotta be fraud going on here. I, it'd be amazed if there's not fraud going either in, like you say, either in how he's filing his taxes or in the difference between how he's presenting his company's value when he's looking for a loan versus filing his taxes. You know, accounting wise, there is a difference in the numbers you give to the IRS. They're just it, that's that's how accounting works. You keep, there's tax accounting and then there's managerial accounting, they do two different things. But what bothers me about this is.

1:03:53 Andrew: Yeah Lewis Warren had a proposal to equalize those two

1:04:30 Thomas: Yeah, what bothered me about this is, you know, don't think it should be presented in uh, in terms of, Oh, Trump was just doing what the, what the law, what the tax code allows, because I, I, I don't think he is like he, there was this one example in the article about this company, was it Vortex or some crap? What is it called? Vol, Vol, Vornado.

1:04:56 Thomas: And they brought it up. The New York times brought up because they were like, here's a company that's on, you know, in his returns or whatever. Whatever, that's one company that he doesn't run. And it didn't do all of this nonsense where it has this infinite depreciation of stuff and these losses, the blah, blah, because it was run by somebody who successfully like somebody else. So I, so I'm torn between two things. It's either he's a horrible businessman or he's, you know, committing tax fraud here, but actually maybe it's kind of both, you Know, like it could sort of be that he's so bad that he also needs to to commit tax fraud in order to, you know, free up some money to continue being a horrible businessman. But I don't think that he's just doing, you know, what everyone would do to try to reduce his tax burden.

1:04:54 Andrew: Vornado

1:05:43 Thomas: It seems to me, looking at the evidence, we can't know for sure without all the underlying, you know documents and everything. We're just getting what he reported. But like this seems extreme. It seems unlikely that he that that all these losses he's taking are above board.

1:05:59 Andrew: Two things, and I don't disagree with any of that, I just want to to, two things I want to say. Number one, that the, there are, right, I mean, like you just pointed out, for example, that it is perfectly legal for corporations to disclose to their shareholders one set of profits and disclose to the IRS a second set of prophets. It was one of Elizabeth Warren's signature tax reforms that I hope Joe Biden adopts in 2021, so point

1:06:23 Thomas: Well, that's, hold on. I, I want to defend that a minute, know, I, that's not always a bad thing, or is it, or often a bad thing? I mean, in, in managerial accounting, you want to, you know, if you buy a piece of equipment, you want to depreciate it for the length of the equipment so that you have an accurate picture of, like, well, we spent roughly this much per year to buy this machine. Uh, and here's how long it lasted. So that gives us a good picture of how, how much value it generated, whereas often, you know, you can section 179 it or whatever, like they're often, in the tax code, they're like, well, you can just depreciate the entire uh use of the piece of equipment in year one for tax purposes because we're trying to like encourage people to buy more equipment or whatever it is, you know, and they're, they're often, there are very legitimate reasons why your books for accounting purposes are different than for tax purposes

1:07:12 Andrew: Well taken, uh, and and that dovetails with what I want to say. So I want say kind of two things to conclude this up. The first is that, in my view, I don't think—I'm not trying to downplay the likelihood or possibility of potential criminal behavior. I'm just saying that if, at the end of the day, all this proves is that Donald Trump is shady but not criminal, that that is nevertheless a thing that used to be disqualifying as president of the United States, I'm gonna give you a super easy example of that. Suppose you're a slumlord, right, like, and you have, and it is true that you used everything in your power to evict people on this, out onto the streets in 2020 during COVID, right, and again, that's going to vary by jurisdictions yeah

1:07:44 Thomas: We're Gonna have a Lot, uh, welcome The presidential race in 2032 or something. I'm sure there will be plenty of examples of those people.

1:08:06 Andrew: Yeah That that's right, and like it will vary state by state because different states protect it, right, put moratoria on, uh residential evictions for different lengths of time, right, but could you imagine, right, Democratic candidate, uh, you know, blank Q Boxman saying, "Well, I don't understand why this is an issue, all of my evictions were 100% legal and, people would be like we don't care if they're 100 legal, you kick people out on the street during COVID, you're a monster, you shouldn't be president. And, and to me, like, that is, and I just don't want, I mean, I'm a lawyer, like, I always want to focus on the law. I, I do not want to lose sight of the fact that, like, what we have here is a president who, in defiance of every norm of the past 60 years, deliberate, ran as a businessman, kept his business dealings hidden, and everything you could have possibly imagined about those business dealings has turned out to be true, right?

1:08:19 Thomas: Mm-hmm. Yeah. Right. Mm-huh.

1:09:12 Thomas: Yeah.

1:09:12 Andrew: Which is to say, if, if the Times reporting is correct, and we have every, like, and it's been essentially confirmed as we just walk you through, right, that the president, if re-elected, will owe $300 million dollars to banks, and will then, you will have the prospect of the president of the United States, by and through his intermediaries, calling up Wells Fargo and Deutsche Bank and going, "Hey, uh, I know I've got this money coming due, but, you know, can you see your way clear to give" like that is a preposterous conflict of interest, right, like that is the kind of thing that our government was, was meant not to permit to happen, like I, I want to get down from the soapbox, but it's just terrifying to me that things that I would have dismissed as crazy conspiracy theory in 2016 are being taken as part of the factual background now, and the defense will be, oh, well, the tax code lets me do it.

1:09:17 Thomas: It is. Yeah.

1:10:18 Andrew: Well, sure, but our norms were meant to protect against people who abuse the tax in this way, this is why we need to have access to this information, and why when somebody doesn't disclose, you should look at it and go, well, maybe this person, even if they're in my own party, maybe this person isn't qualified to be our presidential nominee, you know, we're gonna pass laws but, um, there will always be ways to skate around disclosure laws and uh

1:10:47 Thomas: Future OA Deep dives will reference Trump as the reason why, hopefully, you know, assuming we actually do the right thing here and elect Biden into Democratic Congress, there should be a ton of reforms that were referenced, much as we reference Watergate throughout, all of this process, but we are way over time, Andrew, great, uh, breakdown, there's so much more, but, uh, we've gotta, we gotta call it The

1:10:48 Andrew: Yeah I'm Sorry, I do, since we're going to punt on the C-segment, I do want to say 30 seconds on that, that with respect to voting, a bunch of you have written in to talk about the state-specific changes that your state has passed this year in terms of early counting of vote-by-mail ballots and drop boxes and stuff like that. So I'm going to include a link, a nonpartisan national coalition on state legislatures that summarizes the state of the law in every single state in terms of when they get counted. So if you're in a state that has early counting of vote by mail, absolutely vote by, but but, you know, vote with enough time. I will tell you, basic letters have taken three weeks to get to my office, you know, thanks to the post office slowdown. So but vote now if your state allows that. But if your estate does not count vote by mail until Election Day, I stand by, like, if you can, right, and if you can do it socially distant and socially responsible, go vote in person.

1:11:36 Thomas: Dropbox thing Oh yeah All

1:12:30 Andrew: And I will tell you, those states include a number of swing states and a number of other states with important Senate races. So Alabama, Doug Jones, Kentucky, Mitch McConnell, and then the important swing states, Michigan, New Mexico, Ohio, Pennsylvania, Wisconsin, all five of those states. Ohio says exact timing not specified, which, again, Republican governor, Republican Secretary of State, that scares the hell out of me, the other states begin to count on Election Day, and that means they will not be included, or may not be excluded, in the totals that are reported election night, so in, in those states, I sort of stand by what I said on the previous episode, that if, if you can, uh And you can do it safely, I think the best course is is in person. Um, go check out the resources, check it out for your own state. I can't do all 50 state laws, but I will include that in the show notes.

1:13:29 Clip: And thank you, Let's go!

1:13:30 Thomas: And Now it's time to thank our new patrons at patreon.com/law. Oh, Andrew, why don't you start us off?

1:13:30 Andrew: And Thank you to PDQ Socrates, Robert Richter. This is legal advice. Watch the Daniel Sheehan videos on YouTube, then put him on the Supreme Court. No idea who that is. Leguminati Lawyer, nice. Faran Jessani, redacted or protected under attorney-client privilege, nice, Adam Bennett, Erin Frey, Ashton Swinney, Kinnon McAlister, and David Clements. Take it away, Thomas. I

1:14:04 Thomas: Thank you to ScoopedMids, joining to hear the Gelman response early, to get my wife off the ledge. I hope Jessica wants to be a lawyer before she's 50. Huh, Tom Lidengren, Chris Cammell or Camel, Chris Parker, the Effing Pope, new book, the Greatest Gift of All, a Logical Path From Religion to Humanism by Mark MacLean, out November 30th, pre-order now. Kevin Twomey, it's pronounced deh-KU tree, Josh Kaufman, and Justice for Beer! Thanks so much, new patrons. Hope you enjoy all the perks.

1:14:40 Andrew: Like all that, I hope that one listener is like eight years old, right? So it's, she's set like a super attainable goal for herself. Oh.

1:14:48 Thomas: Yeah.

1:14:49 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:14:55 Thomas: Right, and now it's time for T3BE. Uh, here we go, gotta get back on the the right track. Here, wow.

1:15:01 Andrew: Back In the saddle, here we go. A recently enacted federal statute requires the president to make each appointment of a United States ambassador to a foreign country from a list of three individuals. The list is compiled by the Senate Foreign Relations Committee and approved by the full Senate in advance of the appointment. The statute also provides that Senate confirmation of the employment is deemed to occur occur automatically 30 days after the time the president names an appointee from the List, unless the full Senate determines otherwise within the 30-day period. Is this statute constitutional? Yeah A, no, because the statute violates the constitutional requirements for appointment of of principal officers of the United States. No, becausethe statute impermissibly restricts the plenary foreign affairs powers of the president. C, yes, because the statue is consistent with the constitutional requirement that the presidential appointment of ambassadors be with the advice and consent of the Senate. Or D, yes, because the statute is a necessary and proper measure and furtherance of Congress's power to regulate commerce with foreign states. Great.

1:15:29 Thomas: Huh.

1:16:11 Thomas: Impossible. Um, um, so it feels like, uh, gosh, at first I was thinking, no, but like the fact that I'm guessing, I don't know for sure because I haven't, you know, I haven't read the whole thing, but I imagine that this is the advice and consent, you know, of the Senate type thing. That's what I was leaning toward. And at first, I was like, well, they can't restrict it to three individuals. Cause that, that seems like it takes away, you know, like I, I can't imagine a law being constitutional that said, hey, a president Biden, you have to only appoint a justice from these three individuals. That doesn't seem right. But then again, the advice and consent of the Senate, we've taken that to mean that they have to confirm them. But I don't know. Is the language loose enough there to be like, well, they have to confirm them, but also they're allowed to down the choices to three people?

1:17:03 Thomas: I don't know. Know. I could see a defense there. So let's see. A, this is really hard. I don't think I'm getting this one. A no, because the statute violates a constitutional requirements for appointment of principal officers of the United States. That seems plausible. B no, because the statue impermissive impermissible restricts the plenary foreign affairs power.

1:17:25 Thomas: So between those, I need to pick which one's better. I going back and forth. I I like A because it seems appointment of principal officers seems very direct but like plenary foreign affairs powers could be it like maybe that's the actual uh I I think A is the better no answer. C, yes because the statute is consistent with constitutional requirement that the presidential appointment of ambassadors be with the advice and consent, so that's that's interesting. And then D, because the statute is a necessary and proper measure in furtherance of Congress's power to regulate commerce. Okay. So D is a no for me. I don't think it's, I think it's between A and C. I think A is the best no answer. C, I could, oh, I can almost see an argument that this is consistent with advice and consent, but I'm going to lean toward, oh, this is really hard.

1:18:17 Thomas: I'm gonna just go with A, no because the statue violates the constitutional requirements for for appointments of principal officers of the United States. I don't think you can just have the Senate narrow the list to three. I think that's too much of a restriction on the executive power there. I don'T know if I have this right, and I DON'T know if A is the better no answer. I hope it is, but I'm going with A, final answer.

1:18:44 Andrew: And if you'd like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. So much oh

1:18:57 Thomas: Right. Thanks so mucho por escuchar. Nos vemos el domingo.

1:19:00 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.

1:19:34 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.