OA449: OA vs. Randall Eliason, Part 2!

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 449. I'm Thomas. That's Andrew. How you doing, Andrew?

0:01:24 Andrew: I am fantastic. I was very, very excited to get to our second half of you and I tag teaming Randall Eliason. I like to think of

0:01:34 Thomas: I'm also excited because I can't believe we raised half a million dollars last night at the... We're recording this before the...

0:01:38 Andrew: In the first five minutes. I mean, that was that was really what was surprising.

0:01:41 Thomas: Yeah. And we beat scathing... We beat the scatting atheist people by, you know, a factor of five to one. I can believe it. It's amazing.

0:01:50 Andrew: It's I thought what was most impressive was when John Ossoff went on national television and said, if it not for opening arguments, we would have lost this election. So good job, everybody. No, obviously we're recording this early, but we're we're crossing our fingers. We're super nervous about this. We're sharing

0:02:09 Thomas: But thanks to everyone who showed up for our fundraiser that you already heard that we haven't done. We can't thank you enough.

0:02:17 Andrew: Well, I have to tell you, I am just coming off of the three plus hour live stream we did with our friends in podcasting to save the Senate again. This was grab them by the gavel. And I'm pleased to tell you we raised $78,637 as of 7:20 p.m. on Sunday. It might be even more by the time you hear this. And I've got to track down our matching donors.

I think they're probably in, but it's possible we could have big donations even on top of that. Look, this is amazing. We hit you guys up twice within a month at the end of the year. I know people are hurting and people are struggling, and I'm just blown away that our audience really answered the call, came forward, and together with our friends in the podcasting community, we've raised six figures. Years, we've raised over $200,000 for the Warnock and Ossoff campaigns. I've talked to those campaigns. They know who we are. I know how much good this is going to do. I Know how much they appreciate our efforts. And I just can't tell you how much we don't deserve any of that credit. You guys deserve that credit our listeners are amazing and and I'm just blown away. So thank you you so much. Bask in the glory of knowing that listening to the show, coming on, listening to our live stream, and opening up your checkbooks, you made a real difference. You really helped out two great candidates that hopefully can help us take back the Senate.

0:03:55 Andrew: So thank you so much. $78,637. You're amazing. All

0:04:01 Thomas: But in the meantime, we've got to get to part two of this debate with Professor Randall Eliason. What a great debate it was, and here you go. Here's the thrilling part two.

0:04:15 Andrew: Want to reiterate, my point on the Nixon pardon is that I think it is, my son in debate terms would call terminal defense on the reconciliation point, right? It is to say we have very strong evidence that's pretty hard to argue against that not a lot of reconciliation between Republicans and Democrats took place in the late 1970s. It led immediately to the very next presidential election was a wipeout for Jimmy Carter and ushered in sort of the beginning of, wait, Wait a minute, why is that good? Right,

0:04:47 Randall: But that's good. In corruption cases, one thing we're always thinking about is, in addition to criminal remedies, are there political remedies? And that's why you see cases is where they negotiate. Yeah, yeah, that's right. The voters kicked him out. And the same thing just happened to Trump. I mean, so there are political remedies in addition to criminal ones that can be applied.

0:05:13 Andrew: But let's I'm sorry, I didn't mean to interrupt, I apologize.

0:05:14 Randall: Yeah. So I'm just saying, the fact that the voters kicked out Ford because they were upset about Watergate, that is the way it is supposed to work, right? And they were mad at the Republicans. And this election booted out Trump. He didn't get away with it to the extent that he won a second term right, he's well,

0:05:32 Thomas: Sounds like Andrew's arguing that the voters kicked out Ford because they were mad that there there weren't consequences for Nixon. I

0:05:37 Andrew: And then kicked out Carter four years later right, like, I mean, there were no long-term consequences to the Republican Party from a political standpoint, right? So in other words, to say, like, and and and I think that the Ford example is is highly instructive here because, right, Ford lost very narrowly to Jimmy Carter in 1976, in the same way that Donald Trump lost way too narrowly to Joe Biden. There was no political repudiation of what Trump had done. And I have to say, and maybe this gives away and you'll be able to use it as an argument, I might feel differently from a rule of law perspective if there was a 30-state landslide for Joe Biden, right?

0:05:40 Randall: Again yeah yeah

0:06:31 Andrew: Like if the high end of the 538 predictions had come true, then you might look at it and go, okay, as a nation, you delivered a swift repudiation of Trumpianism as politics. The fact that that didn't happen, I think, and again, you know, we sort of go back to the argument over informing the public, but suggests that powerful misinformation carried the day, right? Suggest that, look, in debates, Donald Trump said on multiple occasions and was not challenged by Joe Biden for strategic reasons, the Mueller report was a total exoneration. And I get why Joe Biden did not want to debate the minutiae of the Mueller Report in a presidential debate format. Because unlike me, Joe Biden can let a point go and focus on the main issues and get reelected. But that was, right, palpable lie, and I think part of, yeah.

0:07:43 Thomas: Want to jump In on that and emphasize that point with what I keep bringing up with George W. Bush, which is I'm looking at the costs, maybe in different terms than you are, Professor Eliason. I'm, I'm working at the cost of not going after anybody in the Bush administration over the Iraq war as hundreds of thousands of people were killed in this stupid thing. And I'm currently, maybe why it's on my mind is I've currently almost almost through with the uh, how to, how to sell a war, whatever the hell that book is that everybody's been reading lately about the Iraq war, um, it's it's infuriating to read and the idea that that happens and then for, you know, and not not even to mention the uh, all of the the economic collapse and the banking stuff and the other things that maybe allegedly, uh, Obama could have gone after Bush for, what ends up happening is there is a sense in which it's like, okay, we've moved on on, I guess, you know, and you kind of make a little bit of the same argument for Nixon.

0:08:40 Thomas: But there's also a sense in which a bunch of people who might have done a really horrible thing, some of which could have resulted in the deaths of hundreds of thousands of people, you know, that apparently whose lives don't seem to matter that much, that they got away with it. And now there's no disincentive for the same thing to happen again. And it's hard to say, well, you Know, we will move on because of this. A lot of people won't move on. And And also, it could happen again to devastating consequences. And I know that Trump, I wouldn't put Trump in that category unless there's something to be done about the pandemic response. But I kind of agree with you that maybe there's not like any sort of criminal violations there. But the sentiment of not holding people accountable for these things or not holding past presidents or, you know, or I guess their cabinets accountable, I don't really think it heals us in a meaningful for way that it might do it in a superficial way, but there are more dangerous consequences later on.

0:09:36 Randall: Man, I think, and you're identifying all the arguments on the other side of the ledger, you know, which which which I've said that I understand and I think are powerful, uh, so we just come down differently on where the balance comes out. Um, I mean, to me, I mean, think about what would, you what would actually get realistically from a a prosecution of Trump for obstruction of justice, Andrew? What would that get us? Go ahead.

0:10:04 Andrew: So, are you, I wasn't sure if you were asking rhetorically. Go ahead, if it's rhetorical, I'll, yeah, I will, I roll out.

0:10:08 Randall: That was more rhetorical. Yeah, yeah. It's, you know, best case scenario is in, it consumes all the public attention for a couple, three years, multiple appeals to the Supreme Court, blah, blah. If he's convicted, which is probably unlikely, then what do you have you have a judicial determination of something that half the country already knows he did anyway and the other half of the country will never believe he did no matter what, right? So is that worth it, uh, you know, and I understand vindicating the rule of law and everything else like that, but uh, you know, it, like, there are these unique considerations with the president, unique defenses that he has, uh, and the concerns about, like I said, starting down this road where an incoming administration of the other parties, you know, then prosecutes the outgoing president. So, yep.

0:11:03 Andrew: So, why don't, I mean, because you, you know, you've, you preempted out the answer to that, right? Which is the only answer you can give. I mean, I dispute all the public attention part, but, yeah, I mean I feel about it in the same way that I feel and, you know, put my money, my firm, and my time where my mouth is with respect to Michael Flynn, right? Like, Michael Flynn was looking at zero to six months in jail, right. Think you and I both agree, Judge Sullivan, it was well within the range of probabilities that Judge Sullivan would have ordered, you know, no jail time in connection with his 1001 offense. So I didn't write the amicus brief.

0:11:50 Andrew: I didn't write all the amicus brief, thanks to Morgan and Rich, who helped. But, you know, we didn't do the amicus brief to ensure that Flynn spent time in jail. We did that to vindicate the principle of of the rule of law. So I, I, I feel strongly, you've acknowledged it, um, that that's the answer to that, but, but, but let's talk about the the precedent of, you don't prosecute the the outgoing president, right? And, and we've talked about go

0:12:20 Thomas: Can I touch Are you touching on the, um, the obstruction thing? Because I kind of want to touch on that, if you're moving on from it. So I want to jump in and say, like, okay, what do we get from prosecuting him for obstruction? I, this is an overarching point that I think really matters when it comes to, but all, all of this when it come to your, your, uh, points about how, well, we already, already had the Mueller report and they tried impeaching, they didn't even impeach on it, et cetera, et cetera.

You can, you both can correct me if I'm wrong, but there was a ton of obstruction within that Mueller report, uh, and witnesses that weren't allowed to talk to Mueller, testimony that they weren't able to get. And so we don't truly know the extent of what the crime might be there.

So it's hard to take that and then say, well, the people already voted on it, or the House already refused to impeach, or whatever you might say, when we don't know for sure that we have all the info. And I would argue that letting him get away with this BS

0:12:26 Andrew: Ahead jump in through

0:13:14 Thomas: Strategy of declaring anyone who ever stepped foot in the White House as immune, because they, you know, executive privilege or whatever, you know, bullshit reasons they gave, there, no one suffered any consequences for that. No one was ever told in any way, uh, through any serious punishment, with whether it's Trump or his lawyers or, I don't know who, no one has ever told at all, yeah, for for defying subpoenas, and for saying, no, we don't ever have to, we don't have to cooperate with you, no one will be punished. The only way to get that is to maybe go back and punish people for this thing they did and set the precedent that, like, hey, you can't use these bullshit arguments to not even cooperate with an investigation to prevent us from finding out maybe what the violations of law were in the first place.

0:13:35 Andrew: Any punishment at all for defying subpoenas, yeah, Okay.

0:13:38 Randall: Yeah. No, and that's, no, I get all that. And I think those are all great arguments for some of the reforms that need to happen, you knows, to prevent that kind of congressional stonewalling in the future. And to try and impose some better contempt of Congress sanctions so they can enforce their subpoenas and fast track those congressional investigations. There's all these things that we need to do in the next administration, because, yeah, that was all outrageous. It was all awful. It should be, you know, condemned. I just don't think the way to address it going forward is through the criminal process. Process.

0:14:32 Andrew: I, and I think that, that then sort of nicely transitions to what I was about to sort of interrogate on, and that is, you gave two separate examples as part of your first substantive argument, right? The first was, Clinton could have been charged with perjury, and the second was, imagine an even Trumpier Attorney General than Bill Barr, and I love that formulation, charging Obama with, I don't know, some made-up crime for surveilling the Trump campaign. Which is, by

0:15:08 Thomas: I'm so Sorry, I got to jump in on that too, because I have a note about that. When, know, I, as you were talking, uh, Professor Eliason, and I, I wrote this down, uh, imagine if there had been a criminal investigation to Obama for spying. Well, and you talked a little bit about the liberal bubble thing, and I just, I almost want to counter that in a certain way, which is, well, imagine if Obama had spied, like, imagine if Trump, let's just, a hypothetical, if Trump had had spied on the Biden campaign or done something like that, like, like, imagine, I'm actually, it's not that I'm in a liberal bubble, what if I actually entertained their Republican bubble and said, okay, what if that were true? Well, I would want an investigation into Obama for that, and I would want some sort of potential criminal charges if there was, if that was actually true, um, and I, so I don't really see that as a powerful counter argument because yes, I, I think he should, Obama should have been investigated if he were guilty of anything like that, which he wasn't, okay.

0:15:45 Randall: Yeah.

0:16:03 Randall: The point about the Trumpier attorney general sort of assumes within it that the prosecution would not be justified, right? But they would just use the prosecution as a way to go after your rivals. But I think the example you're pointing to there, Thomas, is the sort of caveat that we talked about earlier, which is, if there's a bad enough case, then I think this principle has to give way, you know, uh, I just don't think what we've seen in terms of criminal allegations thus far, uh, rise to that level, but I'm not saying there could never be a case where a president committed such a, yeah, yes

0:16:38 Thomas: So understood Let me just clarify the logic real quick. If the argument is, we need to go after, our argument is, you know, we should go after Trump and prosecute him for anything he's done wrong, and your article is saying stuff like, well, imagine if, you know, Bar had prosecuted Obama and the Spygate thing, I'm countering the saying that that's not really a counter argument, because if it were that bad, they should investigate Obama for that, does that make sense? So, like, I just, I'm just saying that's not really a valid counter-argument, and with that, I yield my time to Andrew Torrez.

0:17:10 Andrew: Well, and that's very similar to what I was going to say, and I would add that I think the political process is the solution to that particular, to the Obama example, right? And let me be clear about what I mean by that. If Donald Trump, running in 2024, if this future scenario would happen whereby the president intends upon assuming office to order his Attorney General to conduct an investigation into the outgoing president, president, um, I, I think I would rather that be a known and alive option so that it can be a part of the presidential debate, uh, right, during that, that season, uh, then for people to say, oh, no, no, um, Donald Trump would never do that, there is a norm, right, like there's a long-standing principle that, you know, presidents don't, uh, investigate and and prosecute their, their predecessors, right? So, so, in other words, I think that to the extent that there's any potential for abuse, that saying, yeah, there's no norm there, there is no thumb on the scale, right?

If an outgoing president has committed the kinds of crimes for which we would otherwise indict non-presidents, we're going to indict them, right, and have that be, you know, as transparent a process as you can get. I do want to pause briefly on the Clinton example, which I think is clearly covered by the position for which I am arguing, which is

0:18:57 Andrew: Prosecutorial discretion with no thumb on the scale based on the identity of the potential defendant. Um, zero, I mean, you know this better than I do, Professor Eliason, right, like zero people get prosecuted for being, uh, lying about anything, let alone, uh, having an affair in a civil deposition, right, like, I mean, I, I can't come up with a case in which that's ever happened, right, like people get, people get prosecuted from perjury when they've blown up a, you know, you're, you're unable, able to, uh, you know, to prosecute, uh, you know, a mob boss because of it. Uh, but other than that, I mean, people don't get prosecuted for perjury, right? I mean fair, and

0:19:33 Randall: And yet And yet it was considered, right, I and, uh, they negotiated this sort of settlement with him where he, he paid a fine and got disbarred and things like that. So, yep.

0:19:48 Andrew: And so again, let's, if I, if I haven't been clear on on my position, right, which we've summarized for purposes of the debate as indict versus no indict, right? My position is, the, the Comey position, right, is the maybe, the best, like, the best analogy is

0:20:07 Thomas: Well, it's almost like thumb on the scale versus not thumb on the scale, right?

0:20:08 Andrew: Yeah, Exactly, right, right, like, what was wrong with, uh, well, yeah, I would just summarize it that way, I think, is the right way. So, no thumb, if there was a thumb on the scale for aggressively prosecuting Clinton, uh, that would not be my position. I would not want to say to a prosecutor who comes back, right, so my Attorney General, if I'm Joe Biden, my Attorney General is directed to, uh, investigate, uh, whether, uh, to proceed with an indictment of Donald Trump for, uh, obstruction of justice, and, um, you know, Brandon Van Grack comes back to me and says, you know what, like, this is, it's gonna be really, really hard to prove, and this piece of evidence is gone, and I, I gotta tell you, it's not a kind of case that I would usually take. That's okay, okay, I'm okay with that as a considered judgment, but I think that's very different than saying I want to give an instruction that says don't undertake that inquiry. Does that make sense? Yeah.

0:21:18 Randall: I understand.

0:21:19 Andrew: And if it's a close case, and I guess where I'm trying to push back on you a little bit is, if at the end of the day it's an close case isn't that a better solution, right? Isn't it better to just say, okay, yeah, let's not prejudge this. Let's ask people like you, you know, who bring these kinds of charges every day, you know, how would you handle that?

0:21:20 Randall: And that's sort of what I'm trying to work through in the column, I think. I mean, sort of taking the obstruction of justice, again, as the most visible and likely area of criminality. I mean I think looking at the facts that we have, and I feel like that's been pretty thoroughly laid out by Mueller. I don't know how much more there is to learn about the obstruction. Direction uh you know all

0:22:08 Andrew: Let's be clear on that. If you look at the, and I know you have, if you look at the appendices, right, Mueller basically says in the appendaces, we were totally stonewalled by the White House, uh, the president's answers were at best non-responsive, uh, and at worst perjurious. Um, half of those are still, believe me, that was the first thing I looked when we got the, the, the lightly redacted version. Um, they're still redacted.

0:22:41 Andrew: So, you know, we, we don't know, but like, it, it strikes me as beyond plausible that the president may have perjured himself in his written answers to the Mueller investigation, which may be a separate obstruction of justice, one that we haven't even talked about, right? So there was a significant body of information which Robert Mueller was, of which Robert Miller was deprived, and Mueller says, right, in that appendix C, he says, we thought about bringing and getting either judicial or congressional subpoenas, but that was going to take years, and here I'm paraphrasing. It's between the lines, but I think it's a fair paraphrase.

0:22:40 Randall: Right no

0:23:28 Andrew: And look, my audience here is the House of Representatives, and if what I've got isn't enough to convince you, I don't know what the hell's wrong with you. We thought the advantage of getting this to you with some time left on the o'clock outweighed the disadvantage of not pursuing that investigation. A criminal investigation would not have those roadblocks.

0:23:53 Randall: But it would have additional ones or ones that they never had to reach for example trump has fifth amendment privilege so I mean I don't, I don't think you're going to be able to, you can't throw Trump in the grand jury and make him answer all the questions that you wish he'd answered in those written interrogatories because he's going to take the Fifth, you know, so I just don't see there's that much more to be much more to be run you know no

0:23:57 Andrew: Sure. Sure, sure. But no, But let's play that out, right? So a grand jury subpoenas Donald Trump. Donald Trump shows up and says, "I refuse," or fails to show up and says, "I refuse to answer on the grounds and anything I say I may tend to incriminate myself." Um, I think there's... there's value in that. Uh, but, but, but then, I mean, let's you prosecute these crimes, right? Like, the grand jury doesn't just say in a, when a grand jury's been impaneled and the target takes five, the grand juror doesn't just go aw shucks and go home, they then right. Right. Yeah, they issue subpoenas. You get search warrants, right? So now we get a plausible in-camera review of Donald Trump's emails.

0:25:01 Andrew: I'd like a judge to look at that. I'd look at a team to look at that and see, you know,

0:25:07 Thomas: Yeah, just for the sequel purposes, if nothing else. Yeah, the movie rights, if none else.

0:25:10 Andrew: I needed to come in with something that would beat the Dr. Hibbert, I rest my case.

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0:27:37 Andrew: But what I think is that I'm not wrong about this, that, like, the grand jury would then seek to discover that information in other ways in which the president, you know, is less protected. So, for example, right. Um, Donald Trump directed, uh, the, um, the, the responding official, uh, at the IRS, not to release his tax returns, uh, to a legitimate congressional inquiry, pursuant to, and I don't remember the name of the statute, um, when he's no longer the president. And obviously we're going to get that, uh, you know, we get that the the tax returns as part of congressional investigations in 2021. Um, but but a lot of the stonewalling that was done on failure to produce documents, um, it will not be available when Donald Trump is no longer the, so

0:27:51 Randall: A lot of the issues will still remain, like I said, whether it's Fifth Amendment or executive privilege or other defenses they're going to raise. I mean, do you want to spend, is it a good use of everyone's time, the country's time to keep the obstruction of justice investigation going for another two or three years and fighting out all those battles?

0:28:48 Randall: Everybody knows what happened. Everyone knows what happened, right?

0:28:47 Andrew: So, here's well, and and that's and now, and and now we go back, this was your, this was, was your third, uh, substantive argument, and and maybe it is sort of the fundamental, uh, disagreement between us.

Um, but uh, you expressed some surprise, um, when I, when I called, uh, you know, the the original, um, the fact that the House didn't impeach on the Muller report, uh, an own goal, and and let me explain what I mean, because I stand by that, and and and I'm gonna explain what I, what I mean by that, because I think it answers that question.

Um, I think those of us on this call and writ large, uh, the the tens of thousands of people who are listening to the show understand what happened in the Moral report, but hundreds of millions of America, over 100 million Americans do not, right. And and I think fundamentally, right, part of what is, part of the reason I come out on the the other side, is that I think foreclosing on the possibility of prosecution means, when combined with kind of that, you know, hagiographization of history, means that there's a chance that the Trump narrative, you now, will cement itself sort of more over time, right? Look, I don't think the judgment of history is going to be kind to this president. And I think we're agreeing on that, but

0:30:27 Andrew: This is a situation where Robert Mueller returned 400 pages of information which would have ended any prior presidency, and you don't have to read between the lines very hard to see, you know, kind of the palpable, right, if this report had had exonerated the president, we would have said so. We did not, right. Like, it, it, the idea of, hey man, I did my job, now you do yours, and then looking and saying, oh, you're not going to, all right, well, that's weird, didn't expect that. I, I, I think, I think there is, I, I, I think there's value in ensuring that, um, you know, that we don't get gaslit over what actually happened here, right? And and to the extent, I mean, if there are alternative solutions, I don't know. I mean, if there were good alternative solutions, I certainly, I mean, it's why I said, you know, what I did earlier, right? Like, if the American public had kind of turned on Trump and said, yeah, we're not buying this bullshit anymore. We want a grown-up in here who's not going to lie to us.

0:30:55 Randall: Sure.

0:31:42 Andrew: Then I think the need would be less urgent. But I think that hasn't happened, right. I think, think yeah.

0:31:48 Randall: Well, I don't know.

0:31:49 Andrew: You pull the average, but not the average Opening Arguments listener, not the average liberal lawyer, but like put the average person off the street, mask, what happened in the mall report. They'll be like, well, let's say that Trump did some, like, uh, some, like, shady stuff, but nothing that was criminal, and there was no collusion, right? I think that's probably what they would say, right?

0:31:55 Randall: Right.

0:32:10 Randall: It strikes me that part of your argument too is assuming that the obstruction and prosecution would be successful. And I think that's far from clear for some of the reasons Eric Posner put in his New York Times piece. But there are substantial constitutional, again, just because it's the president. He's actually the prosecutor's boss. So what constitutes obstruction for the president versus versus someone else. I don't find those arguments persuasive. And I've written about this before that I thought it qualifies as obstruction, whether you're the president or not. But there's non-trivial legal issues. AndI think overall, the chances of a successful prosecution are probably low. And then Trump gets to prosecute it as a vindication. So that's the kind of thing you have to weigh in the balance too. We can't go into this just assuming, let's prosecute and we'll put put him in jail, and that'll show everybody what really happened.

0:32:59 Randall: It could easily be just the opposite. You prosecute, prosecution fails, and Trump trumpets it as a vindication and just further proof that the whole thing was a witch hunt.

0:33:10 Andrew: So I, I went, and Thomas, you, you had spoken up, so I don't want to, if you've got something you want to add I don't want to but

0:33:15 Thomas: Yeah, well, I want to make a point related to this, which is one of the, I guess, I'm not sure, and you gentlemen can tell me where this functions in all these arguments now that we've gone back and forth for so long, but but I want to make the point that I do not think making any judgment whatsoever based on whether or not the House chose to impeach is valid. I think that's completely invalid.

I think that you cannot take a look at what happened with how the mall report went down, the limitations that it had, how Bill Barr then hijacked it by preemptively putting out a statement that, like, you know, creatively edited, uh, edited it, and and did all that, and that swayed the public's view and poisoned the world, all that, you can't take all of that and then say, well, since the House didn't impeach, therefore we shouldn't go after him for this.

There is so much calculation that went on, and I think prosecutors should have all the room in the world to say, well, I don't really care that Nancy Pelosi faced a tough decision politically and went, you know, went a certain way on it, that that should have no bearing whatsoever on justice. So I don't know how critical that is to your argument, but you brought it up a few times, and I, I just strongly disagree with the idea that we should do make any decision based on how the House had to try to deal with this horrible president breaking so many norms, and and all this in the wake of Bill Barr also covering for him and misleading the public, and probably successfully, as Andrew has pointed out, successfully misleading the public on the Mueller report. So I don't think that that should carry any weight whatsoever.

0:34:47 Randall: I disagree. And as I mentioned earlier, I don't think it's by no means dispositive, but I think it is a relevant factor. Prosecutors are always considering all kinds of things when deciding how to exercise their discretion. And it obviously doesn't mean that he wasn't guilty. But I think it's a relevant consideration when the Constitution contemplates a process, impeach, remove, and then prosecute if the conduct is serious enough. And if the House decides, you know, so Mueller, so Barr misled the public, but the House wasn't misled, right? And they made a decision, this isn't serious enough to even try to remove the president. But then to go back and say two years later or three years later, but now we're to try to put him in jail for the same the

0:35:30 Andrew: But and And and maybe I should have pushed back on this language more directly. I think what Thomas is saying, and certainly what I am saying, is that the House did not say this isn't serious enough. What the House said was, we are the most responsive body to the electorate. We have to be re-elected every two years, so we're basically constantly running for office. And the way in which this is polling right now indicates that it would be very, very difficult electorally for us to make the case on these high-minded rule of law principles to voters back home in our district, right?

0:36:17 Andrew: That's what happened, right? And so, in my view, that's why I keep calling this an ongoing, and again, I mean that in the debate sense. I don't mean that in a taunting

0:36:29 Randall: Nicest the nicest possible way I said

0:36:31 Andrew: Sense I mean it's an argument. I'm sorry, what did you say? Yeah, no.

0:36:35 Randall: You mean in the nicest possibly way.

0:36:37 Andrew: Right. I mean, seriously, like I don't I don't mean it as a taunting. I mean that it is an argument for, I guess I'm also disagreeing with Thomas, right. Thomas is saying what the House decided on impeachment should bear no resemblance to, to, you know, should not affect whether you prosecute in any way. And I think I'm saying the fact that the House was successfully bullied and cowed into not recognizing crimes as crimes because of the effectiveness, you know, the devious effectiveness of a president and a corrupt attorney general, in my view, is a reason to take it out of a politically responsive process. I

0:36:37 Randall: Yep.

0:36:38 Thomas: Well, yeah, I Clarify. I think you, and I think Professor Eliason made a great point that I should clarify. But I'm not saying that no hypothetical action from any House should have a bearing on the decision. I'm saying this very specific decision they made, which was purely based on politics and the fact that Bill Barr misled the public and all that stuff that I outlined, that should have no effect on the decision.

I'm not saying that if a hypothetical House in a different case looked at something, voted on it, and they said, nope, sorry, this isn't serious. I'm saying the specific action we're talking about should have no effect. And I want to bring up the obvious argument that I'm sure a bunch of people are thinking is, well, what if still controlled the House and they hadn't impeached for partisan reasons, wouldn't you obviously leave open the idea that, like, well, okay, that's not going to stop me just because they controlled their, uh, you know, that branch of government and their cult, doesn't mean that we don't get to prosecute them. I would look at this similarly. I would say there are political reasons why this happened, and that shouldn't have an impact on the prosecutorial decision.

0:38:30 Randall: I understand that, and I said it's just one factor. I'm certainly not saying it drives the decision, but I think I do think it's relevant. That's all.

0:38:36 Andrew: Want to drill down on the argument that I take seriously, but I think we have wildly varying estimates of its probability, and that is that a prosecution of Donald Trump leads to an acquittal. And you mentioned Posner's New York Times article, which you sent me, which I read. And too much, I had a number of questions, right, that I, and I sincerely, I want to be clear about this, I'm sincerely asking these as a question because I'm not a prosecutor. But so here's what Posner says. He's got two paragraphs on obstruction of justice. It's sort of intermingled in a bunch of other stuff, and he says, consider for example the obstruction of justice charge, a private individual who lies or misleads investigators obstructs justice and may go to jail. And and I would add, or an elected official, rightly. We have absolutely sent members of Congress to jail for obstruction of injustice, right? Um, it, uh, the The entirety of the Ab Scam scandal, not the entirety, but a component of the Ab Scam scam scandal, was obstruction of justice, right? It was lying about the trail of the money, right.

0:39:15 Randall: Yeah.

0:40:03 Andrew: So an individual who lies or misleads investigators obstructs justice and may go to jail. Then back to Posner. But our system gives prosecutors enormous discretion to drop a case, even a strong case, if they believe that prosecution does not advance justice. Justice, don't disagree with that. Then he says, and and this is just, it strikes me as a non-sequitur, so this is really where I have the question. Um, the president is the prosecutor's boss, and while his authority is not limitless, there is no recognized legal standard for distinguishing obstruction of a case by a president that is legitimate, parenthesis, like Obama's reluctance to allow investigation of George W. Bush era torturers, from that which is illegal. And and that's the part of the argument, and then there's conclusion that follows, but that's the part I don't understand at all. Um, so I'm okay

0:41:02 Randall: I can't really help you with that, I think that's a pretty weak analogy frankly. Yeah, so

0:41:06 Thomas: I would

0:41:05 Andrew: Okay good good, good. Um, so then he says, uh, if Trump is prosecuted for obstruction of justice, a judge will be required to decide for the first time whether the president's constitutional authority supersedes a statute that is not even clearly directed at the president as opposed to private citizens. In such cases, courts would normally duck this question by interpreting the statute narrowly so as not to apply to a president. And that just seems not correct to me.

0:41:36 Randall: Yeah, well, I think what, what he's getting at, I'm not sure I'd phrase it the way he did, but you remember the whole debate about whether a president, it's even inherently possible for him to obstruct justice. This whole sort of unitary executive theory, he's in charge of the executive branch. He's the ultimate boss. He could have just, well, there's a debate. And look at the Supreme Court we have right now. Are you confident that it would fail if it got up there? If they make the Alan Dershowitz argument, You know, I don't agree with this. I've written about it multiple times, so I'm not defending this argument, but the argument is that the president, as the head of the executive branch, had basically unlimited authority to fire anybody he wants to, and you can't go in and second-guess that without violating the separation of powers, and so that would be a legal issue. Now, you know, maybe it prevails, maybe it doesn't, but it's just, I think, to suggest that people who think obstruction of justice would be a slam dunk case, that's just not true. And then

0:41:54 Andrew: But that's wrong, so Well,

0:42:44 Randall: When Poehler goes on to say,

0:42:44 Andrew: But But But Before Before, before we, me do that. I want to differentiate the argument you just made, which is a conviction being overturned on appeal, versus the argument that I think has more force, which is failure to secure a conviction at the trial court level, right? So the argument you've just made—yeah, you see the distinction. And I would say this.

0:43:13 Thomas: Say this.

0:43:13 Andrew: In terms of having—I I'm sorry, I think you said it wouldn't go to trial.

0:43:13 Thomas: The

0:43:11 Randall: Yeah, if you go to trial, I said, if you get to a trial. I mean, some of these issues might get disposed of the case pretrial in a motion to dismiss or something. Yeah. Yeah.

0:43:21 Andrew: Yeah, right, right. It could, but I think we would both agree that let's unpack this. I'm being coy, I'm being coy here, so let me unpack this, and you tell me if you disagree. The Nixon-era precedents, I think, are dispositive on the argument that you just made with respect to the unitary executive theory, right? The president does not enjoy absolute immunity.

0:43:32 Randall: My argument, my argument.

0:43:39 Thomas: Nixon-era presidents, I think, are dispositive on the argument that he was particularly absent in unity.

0:43:49 Andrew: The president can be required to respond to even criminal process, can be required to turn over documents.

0:43:47 Randall: I

0:43:49 Thomas: The president can be required to respond to the criminal process. He's required to submit the documents.

0:43:58 Andrew: Clinton v. Jones, the president can even be required to respond to judicial proceedings while in office, right.

0:43:58 Thomas: He's a young man. He can respond to a different proceeding while in office. So

0:44:05 Andrew: So I do not see a trial court judge granting a a motion to dismiss on any of these legal arguments, and I shouldn't say do not see. I mean, you know, you and I are both lawyers, you never put kind of your outer probability more than 90 you never know what a judge is going to do, but but the overwhelming likelihood, I think, is that you're not going to prevail on these legal issues at the trial court level. Fair?

0:44:06 Thomas: I do not see a triumphal judge granting a motion to dismiss. On lawyers, you never put kind of your outer probability more than 90%. You never know what it does. But overwhelming likelihood, I think, is you're not going to prevail on the problem. Fair?

0:44:31 Andrew: Okay, um, but, but at least we're staking our position so my my view then is that this becomes an argument about what does an activist Supreme Court do, and, and, in my view, that has far less, like, in other words, I, I agree with you that the force of the argument, if you have a trial of the president and the jurors come back not guilty, or the judge dismisses

0:44:31 Randall: Don't know. I'm not as confident of that. But

0:44:35 Thomas: But at least we should. So my view, then, is that this is an argument about

0:45:03 Andrew: The case, uh, or orders JNOV or something like that. If there is an exoneration at the trial court level of the President of the United States on obstruction of justice, I agree with you that that severely undermines, that would be a massive negative cost that should be considered in the equation. I'm giving my arguments for why I think that that is, based on what we know now, does not seem like a very likely outcome.

0:45:03 Thomas: I have

0:45:14 Randall: Yeah,

0:45:35 Andrew: Come, and, and it and it, that's

0:45:36 Randall: I don'T feel as strongly about that. I'M NOT AS CONFIDENT ABOUT THAT. JUST BECAUSE THESE SAME ARGUMENTS ARE GOING TO BE ALL TIED UP EVEN IN THE TRIAL, EVEN IF IT DOESN'T GET DISMISSED, THEY'RE ALL GOING To GO TO THE QUESTION OF CORRUPT INTENT, RIGHT? WHICH IS THE LEGAL STANDARD THAT I THINK POSNER, YOU KNOW, FAILS TO DISCUSS. BUT I MEAN, THERE IS A legal standard for what qualifies as obstruction. It's whether it's corrupt intent. But this question of the president's authority enters into that. And so it's going to be, you know, I mean, can you really obstruct justice by firing the FBI director? You know, I mean that's going and there's going be vigorous defenses based on that.

0:46:11 Andrew: Separate right I was with you up until you rephrased it. Right? Like, I agree 100%, these are intent crimes from which the jury will have to ascertain intent, in the same way that juries always have to undertake that inquiry when you know, whenever you have uh that center as an element of the crime, um, and, and, and I Agree that that's that, you know, it's it's more difficult to prosecute than a strict liability offense. But again, these are things that good prosecutors like you get guilty verdicts on that all the time.

0:46:12 Randall: Yeah. Right. Yeah, yeah.

0:46:41 Randall: No, prosecutors do that all the time. But Again, not against the president of the the United States, where there are all these unique issues that come into play. Like I said, I don't know how it would come out. I'm not as confident as you are that at least the trial that would necessarily be a conviction with all the legal motions and the defenses that would relate to the fact that it's the president. I think it makes it an extraordinarily complicated complicated and unprecedented kind of trial, right? But I think that, oh,

0:46:46 Andrew: I wouldn't disagree with that. How does it weigh into your calculus? I'm sorry to interrupt, but how

0:47:19 Randall: Yeah,

0:47:20 Andrew: Does it weigh in to the calculus that, um, juries didn't seem to have any problem finding convictions of all of the criminal defendants who were, uh, arrested in connection with the Muller investigation, right? Yeah. I'll just, I won't put a gloss on it, I'll ask that as a fair question since I think last time I think last time I said I was going to ask you a question and I wrapped an argument around it, so, so

0:47:39 Randall: I'm not sure that factors into it. Yeah. I'm Not sure that does factor into the calculation. Most of them pled guilty. Manafort went to trial, but on unrelated issues to Trump.

0:47:57 Randall: So I'm not sure that does factor into my analysis. But to me, but, you know, we could talk for a long, long time about how we think the trial would come out. But I think, you know, Posner's other important point more towards the end of his article is the one that starts in the paragraph that says the Democrats can't win, right? If they push forward, prosecutors may drop the case and narrow it down to nothing in response to adverse judicial rulings. If they get the trial, Trump and his lawyers will turn the tables on the government and attack it for partisan motivation. A quiddle would be Mr. Trump's crowning achievement, but even a conviction would enhance his political standing with half the country by completing his martyrdom. If the goal of a trial of Donald Trump is to renew American faith in government, the effect will be the opposite. I find that persuasive.

0:48:42 Andrew: I I. I find I find that not at all, personally. And I might tag Thomas back in, but, but, but let me, you know, sort of parse out the rhetoric into the argument, um, because some of this, you know, we responded to in our first episode, um, there was currently pending, right as we started recording the show, a motion for leave to file a complaint by the State of Texas against the states of Pennsylvania, Georgia, Michigan, and Wisconsin, uh, alleging that they it was, they alleging that they voted the wrong way and that the odds were a quintillion to one that those states could have possibly voted for Joe Biden, right? Like this is, we have seen in this electoral system that, uh, Donald Trump's ability, uh, to, you know, complete his martyrdom is 100% disconnected from the facts, right? Like, it, he doesn't need, he could be convicted, he could be in prison, uh,

0:49:21 Randall: I can't wait to see how you're going to tie this in.

0:49:23 Thomas: A Mueller report outlining all his crimes and misdemeanors and still it doesn't matter.

0:50:01 Andrew: But but I mean, I, I think he could, to be in prison, and you know, Trump supporters be like, well, he's not really in prison, he's there under a covert operation, you know, in conjunction with QAnon to root out the pedophiles that are in Rikers Island I mean like

0:50:15 Thomas: It is actually what they

0:50:16 Randall: But I think that's consistent with what Posner is saying here. He's saying even a conviction would enhance his standing by making him a martyr, contrary to the facts, right? Isn't that the same thing that you're saying? I mean, the fact, even if he's convicted.

0:50:16 Andrew: No

0:50:16 Thomas: Would say.

0:50:27 Andrew: What what I'm saying is that, that those people who are inclined, and maybe we should sort of separate out like who the audiences are, right? I am most concerned, concerned about the two groups of people that I would lump under politically disaffected, right, and that is, uh, in general, people who are sort of disconnected from politics, uh, and therefore are not listening to the show, um, and also the, the group of folks who are, you know, sort of weary, right, maybe not by temperament disconnected from politics but like of the system, of the last four years, um, and, and, and I see this a lot, right, like, I, I'm in a, a bunch of, you know, small business kind of networking groups and the first thing that I heard when I was talking about, uh, the runoff elections was I started hearing business owners, again, typically a more conservative bunch than, you know, the three of us on this call or my, my listeners, right, um, but business owners saying, well, you know, it wouldn't be so bad if the Republicans win, that because we go back to having divided government and I'd have to deal with all this stuff anymore, right, and I, you know, and I had a tiny aneurysm on our call and I said, like, don't you think if somebody's broken something for four years that we should maybe let the next president have a chance of fixing it?

And you know, um, and that was it, that was as much as, as an argument that I could do, but, but that, right, that attitude is sort of real and palpable, of yeah, yeah, yeah, like,

0:52:07 Andrew: I just want to get back to living my life and, you know, not having to to deal with, uh, you know, this sort of oppressive, uh, Trump issue hanging over everything. And, and so I think, like, among that, that audience, it is crucial, I value very highly, like, in the, the full record, and and, And so I certainly agree, like the 36, 38% that like support Trump and, you know, think that they're reverse vampires conspired to, I'm like, yeah, nothing we can do about that. But the question is like, what's that 15% in the middle that's like, I mean, I've not worried about X, but like, isn't this the Democrats making a lot over something that exonerated him? I don't know. That's, that's where, that's where my mind goes. Eric.

0:52:55 Randall: Yeah.

0:52:56 Clip: YOU BETRAYED THE LAW!

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0:54:50 Thomas: So I think this article, um, that you're referencing is defining Democrats winning all wrong. I mean, if you're gonna set yourself up like that, yeah, nothing you do, if, if the definition of Democrats winning is Trump's cult magically gives up, then yeah, nothing will do that, so it, like, this is a completely, um, I think pointless way to define winning where you say, like, well, if he's convicted then he gets to say that, you know, he's a victim, and if he's not convicted then he gets exoneration. I'm not interested in that definition of success. At best you could say, like, okay, yeah, that might not be the best possible outcome in all worlds, but also we Democrats also don't quote-unquote win if we don't try and we don't prosecute him.

0:55:36 Thomas: So under no circumstances am I seeing Democrats quote-on-quote winning under, under the terms defined by that article. I think I agree with, uh, Andrew that there, that sort of disaffected voter that I'm interested in convincing, uh, you know, maybe by showing their actual consequences and, and, uh, get, bolstering their feeling that that Trump did actually do something wrong. But also the rule of law wins out, if, you know, you know, many Democrats don't quote unquote win, but the rule law wins if people are appropriately punished for breaking the law. I guess I want to, maybe since we've gone on so long, I'm going to try to bring it to a close. Think I want to make a broad point related to that. You know, we brought up, you brought up a liberal bubble a little bit, and some of the arguments have relied on this.

0:56:21 Thomas: We've relied on, like, well, what if you take X principle, and then you say, okay, but what if Trumpers, or whoever, Republicans, get to take that principle and apply their QAnon beliefs to that principle. And I just don't think that that's a proper way to look at it, in my opinion. I think that we need to try something else, because I think what Democrats have tried for a long time is Republicans are in control, they do everything.

Truly, are in control of everything, get to throw everything they can at Hillary and Benghazi and all that crap, and then when we get control, we voluntarily disarm, you know, like unilaterally disarm, fully, like, not just in a, in a fair sense, we go, we bend over backwards to, like, yeah, okay, there might be cases against Trump, but we could be perceived as maybe, blah, blah, it's not working, you know, and you brought up, uh, Andrew, you bring up that lawsuit, what if we took that lawsuit, you know, uh, the Texas lawsuit, which is exactly what we're talking about, that is taking a legal principle and allowing, you know, and then Republicans apply their QAnon level beliefs to it, the proper response wouldn't be to say, okay, well, no state can ever sue another state for anything, and and furthermore, if, if I'm in a state of California and I actually have a problem, let's, California actually has a reasonable lawsuit against another state, we better not do it because, you know, what, maybe Texas will sue, sue Pennsylvania later on. I don't care about that because that's not how we should make policy.

0:57:52 Thomas: I mean, what we have to do is say, no, no. This case makes sense. When Texas sues Pennsylvania and whatever other states, that doesn't make sense and it should be shot down. That's how I would choose to go forward rather than always being afraid and kind of shadowboxing with a hypothetical, you know, misuse of a principle later on where that hasn't worked. End of rant.

0:58:15 Randall: Yeah, I get all that. I do think it's important to stand up for principles, though. And to sort of go back to the beginning of my argument, I think this has been an important one. This principle that, again, limiting to the precedent that an incoming administration doesn't start criminal investigations of the outgoing president unless there was some extremely good reason for a criminal investigation that I don't think we've seen yet. And the argument to me is, well, know, that the Republicans are really bad and so we need to descend to their level. That doesn't move me. I think we should try to be better than they are and stick up for the principles like that. And if someone's going to start, you know, criminal investigations of an outgoing president, I don't think it should be the Democrats. Maybe the next Trump administration will do it anyway. And then you can have me on and say, see, we told you it wouldn't make any difference. But I'm not willing to give up and And just say, well, you know, they're so bad, let's just descend to their level and burn the whole place down.

0:59:05 Thomas: Oh, I'm so glad you said burn the whole place down. I literally wrote that down because I want you to substitute in for burn the whole place done, not put our fingers on the scale, which is mine and Andrew's argument. So like if that's what you've considered burning the whole space down, I don't know what to say. You know, that's not our position. It's not a position that we burn the place down is that we don't put the thumb on the skill in this prosecutorial decision.

0:59:38 Randall: Understood.

0:59:41 Thomas: I think we were all tapping out, I guess. Yeah. Okay, well, uh Professor Randall Elias, and I hope, uh in our hearts, certainly remaining a a very good friend of the show, I hope you feel the same way. Thank you so much for being so generous with your time, we, this, we really appreciate this, and I think this is such a valuable argument, so I'm glad uh you were willing to come on and and uh and and have at it. Uh So, thank you, you so much.

1:00:03 Randall: Yeah. Too bad we couldn't do it, like, live on a stage somewhere, Andrew.

1:00:06 Thomas: Yeah.

1:00:06 Andrew: Uh, we, we will, let, let me, while we've got you here, in under oath, uh, once once the COVID vaccine, uh, has uh, has been introduced, and we can safely do live shows, we are 100 gonna do the live show, can we, uh, can we get your, uh, uh, commitment to be, be a part of that show.

1:00:12 Thomas: We Yeah

1:00:14 Randall: Oh, wait a minute.

1:00:27 Randall: I think I missed the oath part.

1:00:32 Thomas: Joked we recorded that, uh, pre-recorded oath, uh, it was very involved. Yeah.

1:00:35 Randall: Oh, man. All right.

1:00:36 Thomas: Sir. Big ceremony. We'd

1:00:36 Randall: Can we go back and revisit a few things? I think that'd be great fun, I'd love to do a live show, it

1:00:42 Andrew: Yeah, absolutely,

1:00:45 Thomas: Love to have you, I can't wait for live shows, Andrew, as soon as we can do them, we're doing a lot of live shows, it's going to be a lot, it'll be like a tour.

1:00:53 Andrew: 100%.

1:00:53 Thomas: Like a, like a Rolling Stones tour or something, just every city, uh, all right.

1:00:54 Andrew: We're buying a bus, that's it right now. So Randall's joining us on the bus. No, and I want to add, in addition to, this is a debate that we're having in larger society, but also in the AA community, right? Like, there is, I have seen folks take, you know, every side of that. I think, I think there are, um, you know, a lot of our, a lot of our listeners that will, uh, will appreciate, um, you articulating and sort of giving voice to, um, a a counter argument that, you know, comes from a place of shared assumptions, so, uh,

1:01:00 Thomas: Yeah. There you go. Wow, the team. Team van. Baby. I

1:01:35 Randall: Turned

1:01:36 Andrew: I really appreciate it. I

1:01:36 Randall: Out to be it turned out to me by far the most controversial thing I've ever written, which might not surprise you, at least judging by the comments that I got, um, yeah

1:01:43 Thomas: Don't want to get back into it, but I think that's one of the, the, I think that's one of big things here, is that, you know, we're, you guys are both brilliant lawyers, I listen to a law show, and also the, list, our listeners listen to the law show, but so much of the public who sees this probably doesn't realize that you're talking about a very narrow federal prosecution, you know, they're probably thinking like, what about all these tax crimes, what about the charity style, blah, blah, blah, and I, I think that being conscious of that is probably very important, like a lot of people might take you to be saying things that I'm sure you don't mean, but, like, you know, not everybody is, is, uh, knows those all these jurisdictional things as well as maybe you do, so, I, I don't know, you might have given people the wrong impression is what I'm saying.

1:02:08 Randall: Yeah yeah I mean, it's hard, and it's hard to convey like you said, there's some pretty complicated ideas and concepts going, going on. So it was hard to convey them in 800 words, or, or even in the podcast. I mean, it was, it

1:02:25 Thomas: Sure yeah definitely fair I

1:02:38 Andrew: I have the most sympathy for you, with respect to the time limit argument, so, yeah,

1:02:41 Thomas: Would

1:02:42 Randall: Was, it, it wasn't, it wasn't an experience, though. I mean, one thing, you know, uh, show, but I mean, one of the, uh, most interesting aspects was seeing how many different FU gifts are out there on Twitter, her, oh,

1:02:56 Thomas: Allow it, I I forgot to mention, I was going to mention how badly ratioed that got, uh, very very badly ratio'd, I

1:02:56 Andrew: I think

1:02:59 Randall: My God. Oh my god. Awful. It's never happened before, it was quite an experience, like I said, know

1:03:08 Andrew: Thomas and I have both gotten that, have borne the brunt of having folks turn on us in unexpected ways, so some

1:03:19 Thomas: Don't know if we've ever had anything like that, yeah

1:03:19 Randall: People people are angry, people are very angry, yep.

1:03:22 Andrew: Sympathies there.

1:03:24 Randall: Great.

1:03:22 Thomas: All right Well, thanks again, uh, again, really appreciate it, and, uh, that was a ton of fun and really, uh, really illuminating, I think, so, thanks again, all

1:03:33 Randall: My pleasure, all

1:03:33 Andrew: Awesome. Thank you so much.

1:03:35 Clip: And thank you, Let's go!

1:03:36 Thomas: And now it's time to thank our Hall of Famers, our all-time greats, over at patreon.com/law. We love you folks so much, and we love doing these shoutouts. So, thank you to, I support five podcasts on Patreon, but I only changed my name because I love you, OA clown horns. Sparkle Donkey Tequila, the world's best tequila in the world. Sparkledocky.com. Rest in peace. Ooh, that's ominous. Are you trying to tell us something? Is there a hitman in my... Huh.

1:04:03 Andrew: Is that a threat?

1:04:04 Thomas: Yeah. Next week on Lotawful Movies is the trial of Chicago 7. I agree with the previous patron. Oh my gosh! Noctelfa Rootcreeper, The Coterie, expert sales force implementations and custom app development, activate digital transformation at thecoterie.io, I guess? Or it's cut off. Justice for beer! Check out Budget Botanist on Fiverr for all your virtual houseplant needs! Can budget botanists stop my cats from eating houseplants? Because I can't have houseplants because of cats. Listening for years, still can't come up with something clever. Nevin Dudas' cow, Chelsea Olson, Wesley Glenn Brock, becoming a patron to get five episodes a week, now to catch up on months of backlog.

1:04:49 Thomas: New book, The Greatest Gift of All, A Logical Path from Religion to Humanism by Mark McLean, out December 30th, pre-order now. Wear a mask and wash your hands with soap from Kiss My Grass Soapery. At Casa Agria is the best brewery. At Emperor's Brewery is a close second. Bradford Rudy is fogging the mirror with his other loose-end kitty.

1:05:12 Thomas: Groot Dooku Tree, a thorny tourney of torn and tawny tourniquet attorneys, each more torn and tiny than the last. Thomas Kleberg. Big docket energy. I still love that one. Do not hug your local public defender. There's a pandemic. Mary Perez. A sentient mass of spiders got a new job in the oil industry. Please vote blue and make me lose my job for real. Buddy freaking Guyerson. One is first, but two is a close second. Idea for a screenplay. Air Bud, man's best amicus. Hadron. Sorry for not changing my Patreon name. 1L finals are a clown horn. Yeah. Fabulous Lesbians, SimpleCountryHyperChickens, BuddyGuyerson, I just can't compete with other patrons. Oh, sure you can. Two fabulous lesbians.

1:05:58 Thomas: William Drew Collins, Bob Newhouse, Sassy Italy Tours is asking you to donate to the Raphael Sassy Memorial Fund.

1:06:06 Thomas: RaphaelSassyMemorialFund.org. Greg Krimer, this is the best patron name ever, period. White space, white space. What?

1:06:14 Andrew: I think that's a two-spaces-after-the-period joke. So,

1:06:18 Thomas: Oh, gotcha. Biden-Harris 2020, now to win Georgia runoffs. Jennifer Czachowski, doing this while drunk. Hey, Hans Royal, you're live on the air with opening arguments. Simple Country Hyper Chicken, Mike Hall, an old, mad, blind, despised, and dying king. That dickens always with the compliments. One day a Biden shall rise from our ranks and use the power of the Matrix to light our darkest hour. Say it with me, amicus. I'm not even a tortfeasor and I'm kicking your ass.

1:06:48 Thomas: I support secular construction. There's no rule against faithless erectors. Angry Macface, sorry Andrew, Uncle Frank is too far gone. Well, if it isn't my old friend Mr. McGreg with a leg for an arm and an arm for a leg. Black Trans Sex Workers. The Books That Burn podcast reviewing fictional depictions of trauma since 2019. Came for the Stormy Daniels, stayed for the string of never-ending clown horns. If you start an advent calendar on 27th of December, it counts down to Inauguration Eve. Crazy Corgi. If everyone listened at speed 1.3, they would find Thomas' music even more exciting and inspirational. Not even Giuliani's hair dye wants to sit and listen to him rant. I'm changing my Patreon name so that I don't jump every time you read it. Murray Gregerson. If you have to deliver a baby, then only moms can use doctor.

1:07:35 Thomas: Yeah. I move for a bad court thingy. I became a patron because this is the best podcast ever. Ropa Dope is Trump's judicial appointment strategy. Jordan Jai Jessamine in Illinois would pronounce it Illinois. If you want to eat on my dime, do it at the Taco Bell. That is a LotawfulMovies reference, makes way more sense. Dash Infinity, Dash Infinity. Clever Monkey Dicta Porker.

1:08:02 Thomas: Brent Meddling. Jake Braun, Jake Braun. I'm too sexy to vote Trump, too sexy vote Trump. Trump needs to be re-impeached. I am a lawyer, you know what I mean when I... Christopher Brown, Philly Live Show 2022, I'll bring the scotch and cheesesteaks. Laugh-O-Copter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do. Oh, thank-you. The wheels of justice turn faster than the speed. I changed my Patreon name. Co-ops and not-for-profits. Finally, my T3BE porking streak has reached escape velocity to infinity and beyond. There's a goat. Why is there a goat? Andrew Seidel's butt is here for the hot soldering content. Oh, that's a Twitch stream reference.

1:08:41 Thomas: Check out my Twitch stream, everybody. It took 10 years, but I successfully deprogrammed my Fox News watching mom who voted for Biden. Wow, congrats.

1:08:40 Andrew: It is Wow

1:08:49 Thomas: Didn't know it could be done. Zirkle, let me drink lots of water. I like peeing totally clear. Odin the Law Dog, Josh Hoku, blackout orders violate my religious freedom to draw Nazi bombs down on a whole London neighborhood. Yeah. Polly Hernandez, the previous patron name is true, the next patron name true. Check out Ring Runner and Brigador on Steam, two slightly mad indie labors of love that do not deserve their obscurity. KTEL presents the 1460 best bittersweet yodel ballads.

1:08:49 Andrew: Good work You can tell it's KTEL. Oh, I

1:09:27 Thomas: Emily Rainbow Spence and not that Chris Wallace, your turn Andrew.

1:09:32 Andrew: Love that. Not that Chris Wallace is followed by Alfred Wallace, and then Then give to ModestNeeds.org, give to ModestNeeds.org. Objection leading the co-host. Aw, this was funnier when I was the first patron after the handoff. Jason Kopas. Hotspear asks that you don't refer to Michael Flynn as the turkey. That's foul language. Free Melania. Optimism is overrated. Eight equals equals equals D. That is a truly excellent patron name. F yeah, footnote five. I'm with you. F. Yeah, man. The true Conrad Michaels. Nate Drex. Darth Mandy Pants. Four Kraken total law scapting. Lawsuit dismissal services conveniently located between your favorite funeral and sex needs.

1:10:21 Andrew: No idea what a motion in lemonade is, but it sounds delicious. 13th century Saxony gravel truck lawyer. I am the bad things that happen in Philadelphia. Stay gritty. Diogenes the Cynic was right. Jennifer Kratch, Jeff Gelbach, Unionize Brooklyn Friends, Puddles the Clowns, Sing Sad Yodel Songs. Oh, man, that would be so good. CivilPoliticsRadio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Good job on the voting for Joe Biden. Please continue with the handwashing. Stephen Balticate, Sandoval, John Bilderbeck, P, the Andrew Torrez story, Philip Kizer, Andrea the Arbitrary and Capricious. Can I get back to criticizing religious influence on our democracy yet? Yes. Bye, Don 2020. Trump's just trying to fill up his SCOTUS punch card so he gets a free filing.

1:11:10 Andrew: Abscion pain, strumpet trampolus, thank God she finally changed her stupid Patreon name. Andrew tutoring the Supreme Court gives a whole new meaning to Thomas Takes the Bar Exam. Jonathan Trump wanted four seasons, got Double Tree. Uh, hey, Double Tree, at least you get those cookies. That's pretty great. The second best. Best patron sitting down, because like Texas, I lack standing. That's excellent. Milo Meat Song is stress eating. Stop. Ask a question. A karaoke legend would ask. Join your labor union together. We bargain alone. We beg exfoliating evidence. Our doula borrowed some money because she's going through a midwife crisis. That's such a good dad joke. James K. Therese Chan, doctorate night, homeschooling our kids in the day.

1:11:57 Andrew: Hey, I'm pretty sure my wife's a superhero. Chad T. Anonymous. Biden should name everyone Trump fires between the election and inauguration to his transition team. WordOrigins.org, your source for legal terms from 13th century Saxony. In the end, it was more like Iran-Contra than Watergate. R.I.P. Notorious RBG. Video killed the Patreon pun. An undisclosed senior government official from an undisplosed red state. Oui, oui. Croissant. Escargot. Omelette du fromage. Oh, Derek, Trump pardoned three turkeys this week. Congratulations, Corn Cobb and Michael Flynn.

Terrified will be pecked to death by lame ducks. A string of unpronounceable characters. RhondaTheDork.com. Oh, we've got to check that. I know I wasn't supposed to go to the lemonade site thing, but I'm definitely going to RhondatheDorked.com The coronavirus apocalypse is making me too depressed to think of anything clever this week, Adam Costa, Jay Alden, Walt Malenka Chandler, tricycler manslaughter. Two immigrants who decided to stay in the U.S. but leave the South and are moving to Michigan. Soggy Pants, Matthew Vernon. I just had COVID and losing the Seattle live show is still the worst part of 2020. Oh, well, our heart goes out to you on both of those. Havana La Fincha. Adopt a homeless pet in Postie. Clang an ear docking. Dejure a belly at Packus at last, baby. Heather L. Jeremiah's Fancy Microwave Emporium. Ian and Allie. Danny Rosari.

Eli Bosnick. David in Brooklyn. Next Platinum night should just be playing video games. Sam Donnell, Mitchell, no commute, so behind on podcast. Andrew, I'm beginning to think Sydney Powell may not be a good attorney. Natasha Crunchwrap wants you to support the Justice Policy Institute.

1:13:39 Andrew: I agree with that 100%. Sam Buck, and of course, our all-time great, he who shall never be dethroned, the almighty Conrad Brad Michaels.

1:13:48 Thomas: Alright, thanks so much top patrons!

1:13:51 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:13:57 Thomas: And now it's time for T3BE answer time. Andrew, for the love of God, I hope I porked the streak. I

1:14:03 Andrew: Right. So let's find out if you pork the streak. This was a Civ Pro question and really kind of a classic bar exam Civ Pro questions. And so you have restaurant owner files a lawsuit against a city official saying that you condemned my building because you want it for yourself. That'd be an ultra virus claim. Right. Then the city official asserts a claim of immunity, saying that he doesn't have to stand trial and also moves to dismiss the complaint for failure to state a claim upon which relief could be granted. The restaurant owner has the preliminary injunction granted preventing the destruction of the building.

1:14:46 Andrew: The city official now appeals all three of the rulings, wants to immediately appeal all three of the rulers and asks his lawyer, hey, which one of these can I appeal immediately versus which one do I have to wait on the merits? Thomas, I am I'm very, very pleased because you came out of of the box saying, well, you can't appeal the preliminary injunction. And, and that's the gimme, right? And you, and you, you then immediately reversed on it, right. After you started to think through it.

1:15:15 Thomas: Was just a little rusty.

1:15:16 Andrew: No, no, no. It's fine. But like, yeah, that's classic pattern. When there is a preliminary injuction in place that is appealable before trial, because those involve the risk of irreparable harm, right? So if somebody gets a preliminary injunction or is denied a preliminary injunction, then you almost always get to immediately appeal that because we don't want to moot out the case. I suppose I should take a step back and say none of these three, the rule that you got, right, that you immediately recognized is that none of these are final judgments, right?

1:16:02 Andrew: Usually, right. What you get is you get to appeal only from a final judgment. Otherwise, shut up and let the court finish doing its stuff. Right. So, you know, if I have a trial and I move to admit a piece of evidence and the judge says denied and I say, Your Honor, or I think that's going to prejudice my case, the judge will say, well, your objection is noted, counselors. Sit down and move on, right? And your objection as noted is not just one of those, like, I rest my case. Like, that sounds badass when the judge says it. What that means is that by objecting, I have preserved for appellate review in the event that I lose, I can then appeal to the appellate court and say, hey, the judge didn't let me put in this piece of evidence and that's why I lost.

1:16:54 Andrew: And then the appallate court will either say, yes, Mr. Torres, you are correct. You should have been able to put in that evidence and we think it would make a difference. Or they could say no. They could say, no, you were wrong. You the trial court was correct in excluding your evidence. Or I could be right, but not important. Right. The trial court could say

1:17:16 Thomas: That's what I feel like I am.

1:17:19 Andrew: Yeah, believe me, I feel that way in the courts a lot. The trial court could say, the appellate court could say, Mr. Torres, you are technically correct that you should have been allowed to introduce this piece of evidence, but it is not the best kind of correct in this case because in our judgment, you still would have lost. Therefore, since this was not a material mistake by the trial court, we are not going to remand and give you a new trial. But all of those are different applications of the general rule, wait for the thing to be done and then appeal it. But there are exceptions. And appealing a preliminary injunction, absolutely one of those exceptions. You get immediate interlocutory relief. Also, of immunity, right?

1:18:05 Andrew: Although that's a collateral order. Right. Like, you still get to immediately appeal it because forcing the defendant to stand trial before appealing would defeat the whole purpose of being granted immunity in the first place. Right. So the only question then between D, those two, and your answer, B, three, whether you can immediately appeal a denial of a motion to dismiss for failure to state a claim. Name and sadly, Thomas, you can't.

1:18:17 Thomas: Yeah, was

1:18:40 Andrew: You can's immediately appeal that. Um, it's, it's not a fine and this, and we've, I, I, I don't want to be harsh on you, it's a, it's tough, it's a rough streak, uh, but this is a thing we've talked about on the show, like, how uh, if you win on a motion to dismiss, that that disposes of the entire case and is thus immediately appealable, uh, but if you lose, you can preserve that, uh, for appeal, um, but no, you just have to go to trial. Right. And sadly, uh, so that

1:18:40 Thomas: All right, yeah.

1:19:12 Andrew: Makes the correct answer D the streak is not porked.

1:19:12 Thomas: The streak is not porked. Am I below 50% yet?

1:19:16 Andrew: You

1:19:16 Thomas: It's a good thing I got a bunch of those easy questions before, because this is impossible now. This is now impossible. I don't know how to get one of these right. This new source, I guess this should have been the one I was on the whole time. Then I'd be like at like 20% and then all the critics would be right.

1:19:17 Andrew: Are you are uh I No, no, Yeah, it's, this is, this is a bad streak. These were some tough tough questions. You are at fifty four point four percent. You're still well above water. And and and you

1:19:43 Thomas: Yeah. What am I for this new book? 0.00%? I don't think I've gotten any of them right. Or did I get one right? I dunno.

1:19:51 Andrew: You know, you are zero for four in the new book.

1:19:56 Thomas: Yep. It's a, it's a hard book, Andrew.

1:19:59 Andrew: I feel for you. And but but I know you're going to get you're gonna get back in the saddle.

1:20:04 Thomas: Some of them I haven't even been close. This one I was almost there. And I think the last one I

1:20:07 Andrew: You were almost there. I think you just kind of got frustrated and gave up. And, you know, we're like, oh, well, it

1:20:12 Thomas: No, I didn't give up. This is a hard, I don't think you realize how hard this is for somebody who doesn't study the law. Like, I, don't, those all sound like, you know, I get, so it's a ton of information. Like you're able to just narrow down to the things because there's a lot of stuff your brain can dismiss. Like oh yeah, that, that that, yeah, I got that. For me, this was an overwhelming set of facts that was very tough to, yeah.

1:20:25 Andrew: Is. It is.

1:20:36 Andrew: It's a it's a lot of information to dump. That's that's a really good point. And and yeah, and it just comes down to you were essentially answering three independent questions and you got two thirds of them correct.

1:20:48 Thomas: Yeah, but there are no partial credits in these, so... I didn't pork the streak, everyone! I'm more disappointed than anyone listening, that's for sure. I gotta end this. I'm so tired of this streak. But, so I gotta play that sad music.

1:20:48 Andrew: Right. There knows there's no almost.

1:21:03 Clip: Wrong! Hide my head, I wanna drown my sorrow. No tomorrow, no tomorrow. You lose!

1:21:17 Thomas: And I also missed the happy music. That's another part of this. I haven't gotten to hear it in two months.

1:21:20 Andrew: I miss the happy music. Absolutely.

1:21:25 Thomas: So why don't you hop in your time machine. This is a sub time machine, you know, this is like Back to the Future 2 where there's like different things because we're already in a time machine so hop in another time machine and tell us who this week's big winner is.

1:21:39 Andrew: Well, Thomas, this week's winner is Banana and Orange, we're convicted, but their case is on appeal from Patreon because I couldn't find anybody else who got D, the correct answer, anywhere on Facebook, on Twitter, I had to go to our Patreon feed, and even then, this was a second guess, and it's not entirely correct. He says failure to state a claim, I think, is an issue of fact, not law. The others are appealable. It's not that it is an issues of fact. In fact, failure to set a claim is an issue of law. It is just not considered an immediately appealable final order if you lose, right?

So in other words, the fact that there is a claim is not a thing that you can then immediately appeal, um, so uh, Banana and Orange got it right, but just barely, Thomas, you should feel better, this was a hard, hard question. Ian Dimi Yuga adds, holy FRAP, what a question, and that's FRAP for the Federal Rules of Appellate Procedure, um, this is a toughie and uh, and you did your best, so there you go, congrats, Banana and Orange, and um, I think the Patreon and Twitter and Facebook communities need to make sure we get out in force to answer the next T3BE.

1:23:02 Thomas: And that's our show! Thanks for listening. Thanks for a great debate from Randall Elias, and that was, you know, I feel like that's the kind of debate, long-form debate that we need, Andrew, and I wish more stuff like that was, I don't know, in popular media rather than the crap talking head crap we get where you get three seconds to yell a point and nobody actually engages.

1:23:18 Andrew: I I have been reaching out because I kind of want to be in in Randall Eliason's role. And I would love to have Lawrence Tribe come on the show. Right. The the universe's expert on constitutional law, because I think he's wrong when he says that Trump can't self pardon. And I'm not convinced by his arguments. Look, I am in a minority. Well, I'm 50 percent in my own law firm on this. Right. Morgan agrees with Florence Tribe. Everybody agrees with Lawrence Tribe except me. So. So, yeah, I love those kinds of discussions. Really want to give an extra round of thanks to Professor Eliason, who, you know, is a victim of some uncharitable comments.

1:23:24 Thomas: Alright

1:24:14 Andrew: Comments. We're all on the same side. We've got four years of trying to figure out the best strategy to pull Joe Biden to the left and make him responsible for reducing inequality and doing good in this country of ours. And I love it. So that's our mission statement, man.

1:24:38 Thomas: Well that's also our show. Thanks

1:24:43 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.

1:25:17 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.