OA585: Is Jan 6. Justice Moving Too Slowly? with Randall Eliason

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 585. I'm Thomas. That's Andrew Torres. How are doing?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: Doing great. Excited for another episode as always. Exciting to have back, it's been a little while, Professor Randall Eliason. Who I hear has been subtweeting you. That is what the kids say. No, that's not what the kid say. That what like the journalists say or something. Are the kids on Twitter? I don't know. I think they're just TikToking. I am pretty sure.

0:01:33 Andrew: Yeah. Yeah, yeah.

0:01:44 Thomas: And gramming. I don't know. Anyway.

0:01:47 Andrew: I used to be hip and with it, and now what I'm with isn't it.

0:01:48 Thomas: Yeah. I'm 35 years old. Anyway, let's get excited for Professor Randall Eliason. I'll able to tell us, you know. All right.

0:01:57 Andrew: Oh, yeah, that's question number one on the

0:02:01 Thomas: Okay.

0:02:01 Andrew: List.

0:02:01 Thomas: We'll write that down. No, we're going to talk about his Washington Post op-ed. That's, I guess that's pretty much what we do every time we have them on, at least the last uh two or three times. Um, plenty of other stuff to talk about. Uh, let's see, announcements here before we get going.

0:02:08 Andrew: Yeah. Just a super quick one. Um, people have been writing in with respect to Tennessee Bill 612, which has now passed both houses of the Tennessee state legislature. Uh, you don't need us to do a breakdown, the bill is what you've read, it bans all abortions except those that are necessary to protect the imminent loss of life by the mother. Um, which means, uh, for example, does not contain exceptions for rape, does not contain exceptions for incest. You are forced to give birth in Tennessee. It is from the moment of conception. As I've said, medical emergency defined in the bill as preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

0:03:06 Andrew: So, you, if they're going to be permanent non-lethal damage again, you forced, know, birth, so, uh, these are they're monstrous, you don't need our help breaking it down. Um, and you, you know what to do, so

0:03:11 Thomas: It I think a lot of people use the terminology the forced birth side, rather than, the you know, pro-life side, which is their own version of sounds it like it's apt to call them the forced birth side, I

0:03:24 Andrew: Yeah. Yeah, I am generally a fan of letting, uh, even folks with whom we strongly disagree define their own ideology, ideology and labels. Know, and, because it feels just like, you know, Newt Gingrich, cheap trickery to, you know, you're not really pro. Okay, fine. But it's hard for me to engage, to think that people who voted for this bill are doing anything in good faith, right? It is, for now, it's blatantly unconstitutional.

0:03:51 Thomas: Mean they are literally forcing you to give birth in every, every single instance, right?

0:03:53 Andrew: Yeah. Yeah, not going to do a segment on it, because there's nothing else to analyze it just is there and it's terrible.

0:03:58 Thomas: Yeah, you're right. All right. Well, let's get to less terrible things.

0:04:04 Clip: Down the law, down the law.

0:04:07 Thomas: And we're joined once again by Professor Randall Eliassin. How you doing today?

0:04:12 Randall: I'm doing great. How are you guys?

0:04:13 Thomas: Good. We were happy to have you back. It feels like it's been a little while.

0:04:16 Randall: Has been a while. Yeah.

0:04:18 Thomas: But I also have no concept of time. It could have been last month. I don't know. Yeah,

0:04:21 Andrew: Yeah, we're on a Covet schedule with, uh, multiple guests. No,

0:04:26 Thomas: I've talked to you more than a lot of like people I could still consider close friends. I'll say that, Professor Lyson.

0:04:30 Randall: Okay. I only keep track of Andrew Seidel and I think I'm falling even further behind. Yeah, so,

0:04:36 Andrew: Well, that's we're not going to have him on for a while so you know there's plenty of opportunities to catch up plus uh when you when you troll us we can't help but respond so uh

0:04:40 Randall: Okay. Oh, that's the trick, huh?

0:04:47 Thomas: Oh, shots fired, shots fired.

0:04:49 Andrew: This is, uh, we are, uh, discussing the, uh, article you wrote April 1st for the Washington Post, which, uh, yeah, there you go.

0:04:57 Thomas: Oh, it was an April Fool's Day. Okay, I get it.

0:05:00 Randall: Yeah, I was just fooling Andrew.

0:05:01 Thomas: Yeah.

0:05:02 Andrew: Which which is which is entitled, this first question, it's entitled "Forget What You Heard, the DOJ's January 6th Probe Is Moving at a Good Pace." Now, I've written enough for newspapers, not not nearly as much as you have, to know that, uh, you're not always, uh, in charge of the title that's assigned to your article. Did yeah, did you did you write that one or all

0:05:03 Randall: No,

0:05:20 Thomas: I'm like never in charge pretty much at this point.

0:05:24 Randall: They pretty much picked the headlines. Yeah. But I don't disagree with it though.

0:05:28 Andrew: Right

0:05:29 Thomas: Well, my first question was going to be, and I'll ask it now because it's kind of related, this is written from a perspective of lots of people are complaining that stuff's taking too long, you know, that sort of thing. Who'd you have in mind, I guess, um, because I haven't heard, I don't know, you hear all kinds of things. I don't have a good concept of what the public opinion is on on this investigation. I'm wondering, you know, what your conception of it is.

0:05:30 Andrew: Yeah,

0:05:49 Randall: Well, there's a lot of back and forth on social media. I guess I'm thinking primarily of Twitter, but there's kind of two camps of legal commentators on cable TV. And then a lot of them are on Twitter as well. And there's the kind of the the process, everything is is working the way it appears that it should camp, which I'm in. And then there are people who are claiming that, you Garland is not doing anything. He's not at the job. DOJ is taking away too long. It's moving way too slowly. And there's lot of those voices on social media as well. So those are the kind of critics that I'm responding to.

0:06:19 Andrew: And I think we have been rather firmly in the trust the process camp, at least judging by the amount of, uh, hate mail that we get and opposing tweets.

But I do want to actually re-ask a question that you sort of published in the article, kind of give the setup for it, which is in connection with the hearings in the Central District of California over the privilege claims that were asserted by, uh, former Trump attorney John Eastman, and the person who we, we get increasingly more evidence every day was the legal architect of the one sex insurrection.

Uh, we had a finding, uh, by, in connection with documents that Eastman, uh, had with eldest privilege, we talked about a great length on the show, and, uh, Judge Carter said, uh, yeah, with, with respect to, and it turns out uniquely, uniquely only to apply to one document, but nevertheless is a critical, in my view, factual finding that it is again, in the context of a dispute over privilege claims. This is a District Court judge saying that it Is, as a matter of law, more likely than not that both Eastman and the former president of the United States, Donald Trump, committed crimes. And in particular, that those crimes are conspiracy to defraud the United States and with a governmental proceeding. And so the question I asked you, notwithstanding the that obviously this is not typical way in which you go about doing that is you're a former prosecutor. You have been to a grand jury. I have not. But I'm envisioning. Right.

0:07:58 Andrew: Right. Because the standard, you know, we've heard the aphorism of, you know, you can get a grand jury to indict a ham sandwich. It is an ex parte proceeding, target is not permitted to be there, let alone represented by counsel. All sorts of the deck is stacked. And the standard for a grand jury to return an indictment is just, is there probable cause to believe that the target of said indictment has committed crimes. And so my question was, could you take, as a prosecutor, could you take this ruling, could you take the requisite pages, put it in front of a grand jury and say, I'd like you to read this for a couple of minutes and I'll come back. And wouldn't that rise to the level of probable cause?

0:08:43 Randall: Wouldn't you indict? So part of the, one of the points I was trying to make in the article, You couldn't do that if you're going to follow the appropriate policies, appropriate DOJ policies, because like you said, the standard is so low to get an indictment. The problem is you can indict a ham sandwich, convicting a ham sandwiches a lot harder. And you're only supposed to seek an indictement, not when you can just barely meet the probable cause standard.

But when you have admissible evidence that you can take to a contested trial subject to cross-examination and challenges by the defense and convince a unanimous jury beyond a reasonable doubt of guilt, and that's not even in the same league. This is sort of like taking Judge Carter's finding and saying, therefore, you could do that. It's sort of like saying, my high school kid threw a no-hitter in his baseball team, so he's ready to go to the majors. I mean, it's just not in the same ballpark. Well, maybe yours is. It's not even in the same ball park, to continue the metaphor. So yeah, it's significant finding, but it's a civil case. It's based on pleadings and arguments from attorneys, no live witnesses, no one subject to cross-examination, no challenges to witnesses. And the civil standard is so low that – and it's nothing we didn't already know, right?

I mean, I don't need Judge Carter's finding if you just take the pleadings, the facts that are in the congressional committee's pleadings, those publicly available facts that Judge Carter relied upon. Yeah, you can take all those facts and put them in the grand jury and probably get an indictment, but you don't do that until you've got the evidence lined up that you can also then go get a conviction, uh,

0:08:44 Andrew: Yeah.

0:09:33 Andrew: Well, mine is.

0:09:35 Thomas: We

0:10:18 Andrew: Okay.

0:10:18 Randall: Which which takes a whole lot more

0:10:18 Andrew: So, well, and I want to go down that avenue, but, well I want to back out a couple of points that you said near the end because obviously, so point one, agree I with you that I think it was making available some of those facts that the 1-6 committee did in terms of filing or revealing its motion for sanctions, right, or its opposition to the motion to quash, I should say, that you know, I mean, we we cut a special episode on it, right? Like, I agree.

0:10:24 Thomas: All know that Here, yeah

0:10:25 Randall: Right Right.

0:10:55 Andrew: That The moment that we all of a sudden got a hold of, and in particular, the the partial deposition testimony from Greg Jacob and the emails that were attached to that, including, you know, what we've called the smoking gun document, the John Eastman saying, "Well, well, Greg, now that you've broken the law a little bit, like, why not" We break it some more. So point number one, I, guess I I just want to emphasize that those facts that were publicly known were late breaking and were publicly unknown if you were, you know, an Opening Arguments listener, a Randall elias and column reader, right? If you're really dug. But these were not things that, you know, the one six committee did not sort of come out and hold a public hearing about. That.

But point two, which, which I think got buried a little bit in there, is I guess I hear agreement with my, with the premise of the question, which is if you had. So you're saying that a good prosecutor would have more than just Carter ruling, which I totally agree with. That was not, I didn't mean to have that as the sole predicate of question, but that a good prosecutor could nevertheless.

0:10:55 Randall: I'm

0:11:15 Thomas: Well

0:12:03 Randall: You can't put Judge Carter on the stand at trial and have them testified, you need the facts, the evidence from the actual witnesses themselves. You can't put a legal conclusion into evidence, right? So, well, if you immunize him, maybe, yeah.

0:12:12 Andrew: You could put Eastman on the stand, right? Yeah. Yeah. I I,

0:12:16 Randall: I'm sure those are the kinds of things they're exploring. I just think this is the process that's going on and people just need to let it play out. But there's so much excitement that gets generated by something like the Carter ruling or the Maeda ruling a couple of months ago in another civil case when he said that there's at least enough to go forward on a civil charge that Trump conspired with the rioters.

0:12:16 Andrew: Right, right.

0:12:36 Randall: And then everybody kind of gets all excited and says, "A federal judge said Trump committed a crime," you know, without focusing on the fact that a judicial finding in a civil proceeding isn't the same as evidence and witnesses you can put on the stand, testify under oath, subject to cross-examination, convince unanimous jury beyond a reasonable doubt. It's not even close. So I think the investigation is moving in that direction, but you know it's just going to take some more, some more time.

0:12:59 Thomas: But But we can be excited and alarmed by the fact that the former president, you know, a federal judge did say the former President is more likely than not he committed a crime, right? I mean, what's wrong with that being alarming?

0:13:00 Randall: Yeah. Yeah, no, of course. I mean, I guess I'm not saying anything wrong with being excited or thinking it's significant because it is. I'm just saying people that look at that and say, then, which you guys have not done, but many people do look at that and saying, what the hell is Garland doing? Look at this. A federal judge said Trump committed crimes. What's taking so long? Why isn't the guy in jail? I mean—and a failure to appreciate the vast difference between judicial findings and these civil proceedings and what it takes to prove a case at trial, the amount of work it takes to get to that point. So that's really the only point in my column that I think, yeah, go ahead.

0:13:25 Thomas: Ah,

0:13:45 Andrew: So understanding that, I want to give a little bit of voice to that other side, right? Because A, you know, you want to steel bot the opposition as much as possible. And B, I think there is, am sympathetic to folks, folks who feel frustrated. Let me give you a couple of examples, and I'm sort of curious your thoughts on these specific examples. Number one is the failure, and I think now that we are moving past some of the potential statutes of limitation, but really any sign that there is any indication that the DOJ is is investigating, moving forward on the clear criminal actions that are outlined in volume two of the Mueller report.

We've right talked about the with you on the air. Right. There are nine crimes kind of set up on a tee that I think for at least five of them, I would argue the the evidence, The work that Bob Mueller did give a competent prosecutor outside of the circumstances that were described in the Mueller report, i.e. compliance with the OLC letter that says you don't indict a sitting president. That level of confidence that that you could indict and prove to a grand jury, prove to A jury beyond a reasonable doubt the president was was guilty of these offenses. And I think it's pretty clear now we're not going to get anything on on any of those crimes. Right.

0:14:32 Randall: Yeah, it's starting to look that way

0:15:13 Andrew: Yeah. Yeah. And so, OK, so I say, look, I'm not I'm not the nutbag out there who thinks that, know, Merrick Garland is a member of the Federalist Society because he moderated one of their debates. Right. Like if if that's the standard, I am a member. I'm Federalist society. Like I've appeared at Federalist Society events, you know, sponsored by them.

0:15:13 Randall: For sure. Yeah.

0:15:33 Andrew: So, yeah, no, can't add that extra layer of tinfoil, guys.

0:15:29 Randall: Well, that explains a lot. Yeah.

0:15:39 Thomas: Yeah.

0:15:39 Andrew: Right. But but so, OK, right. I'm not making the idiotic claim, but I am making, I think, a claim that I think a lot of folks are, which is we we spent a lot of time investigating what Trump was doing in office. And, you know, there's nothing nobody's going to hold him accountable in in connection with with all of that, Which, you you read between the lines, you know, this was a very prominent Republican saying, yeah, this is, know, effectively saying that the president committed crimes. So I guess two points. Yeah. Yes.

0:15:40 Randall: Okay. Oh, you mean Mueller? Yeah.

0:16:09 Andrew: Yeah. And

0:16:09 Randall: Yeah.

0:16:10 Thomas: So you're saying people, you Know, it's understandable that as a result of that massive disappointment that they're bracing for another one.

0:16:13 Andrew: You'd frustrated. Yeah. How would you respond to that?

0:16:19 Randall: I put the Mueller thing in a different category. I sort of break them out. You might recall My earlier appearances when I wrote a column about arguing that Trump should not be indicted when he left office. And that was a pretty controversial column, you might recall. And we had a couple discussions about that. And then after the January 6th insurrection, election, I said, okay, this calls for an investigation. This crosses a line. You could argue that the Mueller stuff, you could make arguments about constitutional questions about charging a president with obstruction of justice, and is it really worth for that kind of crime that was ultimately unsuccessful to put the country through the turmoil of two two years that would involve for that offense that ultimately didn't succeed. And where the real failure was on Congress's part, I think, because what Mueller really teed up was an invitation to impeach and they failed to do that.

0:16:23 Andrew: Mm-hmm

0:17:11 Randall: So you can have that argument, but I put that in a whole separate category. And I had actually wrote a column a couple of months ago saying, basically, if DOJ is not going to do anything with the Mueller report, they should at least say something and explain why, right? Because it's not good for the country to let that just sit out there and have everybody wondering, did they even look at it? Did they just punt? Did they say, well, a case is closed because Barr closed it and it's bond of policy. We're not going to reopen that decision. I mean, if they've got some reason for doing it, think they should tell the country. So I agree with that criticism, but I do put that in kind of a separate category. I don't think that's in the same league as the January 6th insurrection stuff. Stuff um and I think probably also doj has been a little busy you know um with with the January 6th direction stuff and so if you had to prioritize, you know, you put the Muller report, which is arguably, you closed, uh, kind of on the back burner.

0:17:54 Andrew: Well that I I

0:18:04 Thomas: Is it worth bringing up Georgia, the Georgia call, or is it not worth bringing that up into this? Because Andrew was firmly in the that was a crime category

0:18:04 Randall: Yeah yeah well yeah

0:18:10 Andrew: Well, That's I mean, there's A state, but But yeah, go ahead ask feel feel free to ask yeah tee it up tee it put it up and ask

0:18:14 Randall: State prosecutor looking at that well there

0:18:13 Thomas: Yeah but well I just mean as a as another instance of like, it just feels like, for some reason, no matter how many crimes, this asshole crimes, we're not gonna charge them with crimes.

0:18:26 Randall: Is still I mean, there's still an active investigation in Georgia. I don't know, I don't think we know yet how that one's going to come out.

0:18:31 Thomas: How much time did you need for that one? You know what I mean, like that one, what do what more did I get it with the the the Capitol. There's so much stuff going on. Lots of moving parts, lots of people, lots of defendants. What did you with Georgia? It was, you have the transcript of the call. The elements are there. Do you need to find some more like mens rea evidence or something? I don't get what you need all the time for.

0:18:50 Randall: I'm, you know, speculating of course, because I'm not involved in the investigation, um, but I've written a little bit about this this too, that I think are challenges in that prosecution. If you look at the statement, like, find me what did he say find me eleven thousand eight hundred and seventy votes or something like that, you and you try to argue, okay, that's a demand to fabricate votes. He doesn't say that. And if you put it in the context of the constant claims that you guys screwed this up, you didn't count all the votes properly, you missed all these votes that are I know there are other valid votes that are out there for me, go find them, right? If that's the interpretation, then proving beyond a reasonable doubt that what he really meant was, go make up votes that weren't there. And he's in a room with a bunch of lawyers, a bunch of other people. People frequently don't kind of crime in plain sight, surrounded by their attorneys and advisors, right?

0:19:39 Andrew: Yeah wait

0:19:39 Thomas: This with one very big exception.

0:19:41 Andrew: Have you? Where? Have? You been? The past five?

0:19:43 Thomas: Yeah, we're

0:19:43 Andrew: Years? Yeah, no, but, but, but, I, and I, and I just want to jump in, because I, I think aspect of what, what makes the Georgia offense, in my mind, much, much more of a slam dunk, and that is, I don't think you need to prove that when Donald Trump said, "Fellas, just find me 11,780 votes," that he was saying find me eleven thousand seven hundred and eighty fraudulent votes. What you have to prove is that there was a conspiracy to cause to be entered any false figure in connection with any electoral tally. Right. And so when you look at that call, are only two options that are available. That the, right, first option is that Donald Trump knows, has received sufficient evidence and advice from people near him, that he lost the election.

0:20:37 Andrew: And that was a claim that I never thought we would be able to prove. And I'll be honest with you, it's part of what excites me about the Eastman emails, because Eastman seems to be the kind of person who, you know, says the quiet part at the top of his lungs when he thinks it's covered by attorney-client privilege. And so, you know, wouldn't surprise me at all if there is. I mean, it would surprise me if we were to discover this, but it would not be, outside the of Eastman's normal modes of communication. If there's an email from Eastman to Trump in November, that's like, all right, well, first, what we got to do is gin up a whole bunch of fake claims about stolen votes. Right. Like that is exactly the kind of thing I could see him putting in print.

0:21:23 Andrew: Trump, on the other hand, you know, he does all of that over phones and, you with burner phones and uh with "well I'm just asking you to do me a favor," right? Uh, but uh, but Eastman, I think there may be a paper trail, uh, based on what we've seen so far. Um, but put, put all of that aside, I, right, have always been assuming that Trump's defense in an inaction brought in Atlanta, uh, by uh Fulton County D.A. Fannie Willis would be, "Oh no, I definitely believed that," know, a you pillow magnet uncovered the secrets of, you know, millions of votes being shipped by Hugo Chavez to Europe to be turned into votes for Biden, right? Like, you can kind of go like, yeah, I guess Trump stupidly believes that. But right, that doesn't matter.

If Trump, right, believes that he won Georgia by 4 million votes, which is what he says in that call, then asking you to put 11,780 extra votes is as As much a false figure as asking you to put that when you know you lost. It is Right. It is the incorrectness of the number that winds up being the statutory violation. But the Georgia state statute. So But I want, I want to go to the back to One Six Committee, because your position on the Mueller report was sort of, you know, put that in its own own box. But it is reasonable to fault Merrick Garland for, if they're truly going to do nothing about this, not making a public statement. And I agree with that. I endorse that position 100%. In fact, I think when you wrote that article, we cited it on the show and agree with But it.

I do have a question about this in terms of Trump toadies who have defied One Six Committee subpoenas, uh, that the One Six Committee has has referred out, now four of them, um, but but they, they referred out, um, Steve Bannon, uh, and and Mark Meadows at roughly the same time, um, and the DOJ within three weeks came back, uh, with uh an indictment, uh, against Steve Banner. You know, we'll sort of see where it goes, but in other words, know, provided you the teeth to the One Sixth Committee subpoena on on Bannon, and so far they haven't done anything on Mark Meadows, and that feels weird and wrong to me. Your thoughts?

0:22:29 Randall: Yeah.

0:23:30 Randall: So a couple of things. They haven't done anything on Mark Meadows. You don't know that. All you know is there's nothing public. But that's part of the assumption that I'm trying to argue against overall in this article. The fact that we don't see something publicly happen means nothing's happening. There can be a ton of stuff happening with Meadows going on behind the scenes. They could be squeezing him because they think he's implicated in the bigger felonies that Judge Judge Carter referred to, the 371 conspiracy, the obstruction of justice conspiracy, and they're trying to squeeze him to cooperate on those 20-year felonies instead of messing around with a little one-year misdemeanor that's really almost, in the scheme of things, insignificant, they think he's on the hook for these bigger crimes. So when I look at Meadows and Bannon, I look at Meallows, I think, okay, we can see that nothing public has happened yet.

0:24:17 Randall: So none of us knows why. So you can make two assumptions. You can make the assumption they're not doing anything. They don't care. They're not enforcing Congress's power. This is terrible. Garland's incompetent, weak, scared, whatever. Or you can assume there's some kind of legal, tactical, strategic reason there are things going on that we just don't know about yet. And that's what I choose to assume, knowing the way a DOJ works and knowing a little bit about Garland. Now I know people still have ptsd from the bar years but garland ain't Bar. Okay, and and DOJ is not kind of inherently corrupt, and uh, adults are back in charge now, the good guys are back in church, and I think if nothing's been done with Meadows, there's a reason, uh, and the reason and isn't incompetence or lack of caring about it.

0:24:44 Andrew: Yeah so so so let me, let me push back on that, because I, I agree with much of what you said. When I look at the identical situation, I, as a a non-prosecutor, it's why I have you on, I'm open to having my mind changed on this. I see, right, the identical offense, uh, you know, you came out with an indictment on on Bannon in, kind of breakneck speed, right?

And I don't think there would be, I, let me not ask it as a leading question, is there a reason not to, uh, issue an indictment for Mark Meadows for the contempt offense and then just issue a superseding indictment if you also think he's involved in X, Y, and Z. I, I guess, you know, I would supply if he is, you know, sort of very very close along in cooperating, I suppose I could understand, um, don't be a jerk about it, right, right, um but other than that, don't be a jerk, and I, and I know we have, no, you are correct that, you know, where we're reading tea leaves here on the basis of no evidence, um, it, don't think, I certainly don't thinking we have a reason to think that, you know, Mark Meadows is far along, uh, know, in terms of cooperating with the One Six Committee. And or with the Department of Justice. So I asked my question in a non leading

0:25:58 Randall: Yeah. Yeah.

0:26:20 Andrew: Way. So what's what's the harm of indicting him and then just issuing a superseding indictment later.

0:26:24 Randall: I don't know. I don'T know what their, what their strategy is and none of us do. Maybe Right. That would to be too much of a distraction. Maybe they feel like that would just get the defenses up. And now we're just focusing on this contempt trial instead of maybe focusing on a bigger picture of cooperation. And you could always bring contempt charge later if the idea of possibly possibly cooperating fails. I mean, the flip side of your question is what's the harm in waiting a few months, seeing if you can cut some kind of deal with a guy, flip him on the cooperation, bigger charges. And if that falls apart, then you go back and bring the contempt charge. But the contempt charges really kind of nickel and dime in the scheme of things. You know, it doesn't force him to testify. All it does is punish him for defying the subpoena. It doesn't, it doesn'T result in anybody getting the information. And If your real key, real goal is to get the information, you don't do that by prosecuting contempt charge.

0:27:13 Randall: You do that by trying to squeeze in with that and whatever else you might have and see if you can flip him. Like you said, we don't know if that's happening. I just choose to believe that the fact that he isn't indicted yet is not a sign of something nefarious or incompetence or anything like that, that there's something going on.

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0:30:06 Andrew: I agree with you charges of nefariousness and incompetence. You I will say a position that I have some sympathy for was the position. It's been one of the most quoted back at us, maybe because we left the clown horn off of it. But when we had Larry Lessig on the show, he bemoaned what he called chicken shit prosecutors who are afraid to bring charges. Think that's a fair way where at least I want to give voice to that opinion. And to kind of, you know, wrap all that up to say, you Know, when I look at what the DOJ is doing, when I look at. That could have, I think, an entire separate episode on the Manhattan DA's office and what happened with Cy Vance there.

0:30:52 Andrew: I look at, along you in there, and I know that there are reasons it takes a while to convene a grand jury in Fulton County, and one won't be convened until May as a result of their particular statute. Guess sort of two things. Number one, you asked the question in your last answer of, what's you the harm in taking another couple of months to get it right? And as a lawyer, and as a detail-oriented lawyer, and somebody who works with these kinds of people, yeah, that's a very lawyer thing to say. And it's something with which I am incredibly familiar and have been there. But there is a harm, right, and the harm is, um, we're, we're now, you know, 15 months out from the One-Sixth Insurrection, we have a Republican Party that is actively gaslighting the entire country, that, you know, who knows, you know, by by at what point the entire talking point will be nothing but, you know, these were just, you equal measures of well-meaning tourists and and Antifa saboteurs, right? Like, you know Right?

0:31:51 Thomas: Way past that point.

0:31:53 Andrew: It's it gets harder to prove yeah go ahead

0:31:53 Randall: But you can't ignore the fact as well that we have 800 people indicted. You've got the Proud Boys, the Oath Keepers, the more significant indictments that are coming more recently. We've just had news in the last couple of months about now subpoenas going out to the organizers, the planners, the people who were not on the ground at the riot. So there is, again, this is such an enormous undertaking and there is a whole lot happening. So it's not as though nothing is happening because we haven't seen Trump Trumpfrog marched off in handcuffs. It's just that it's an enormous, enormous case. And all the signs that I see are that they are working their way up. And the alternative to doing it that way, I think, I mean, you say, what's the harm? Why not? Really don't, the term chickenshit prosecutors, as you can imagine, I don't like. I mean that's a very easy charge to make from the outside. I don't how many cases Lessig has tried, prosecuted.

0:32:45 Andrew: I I I thought you might have some thoughts on that one

0:32:51 Randall: There's a the difference between chicken shit and being appropriately cautious and doing your job, bringing cases only when you're really ready to prove them. And especially in a case like this, what's the alternative? You rush in, in response to all this public pressure and impatience and indict a half-assed case and you lose. And then, you that happens, Trump is stronger than ever, right?

0:33:11 Andrew: I I agree that yes that would be a that would be a disaster scenario I completely agree with that

0:33:15 Randall: Yes, that's a disaster, right.

0:33:16 Thomas: I don'T Let me voice some disagreement on that, because I've heard that in a lot of things now in aisle 45 and lots of coverage of this, that that would be like the worst case scenario. Is that true? I the other side of things, Hillary testified about Benghazi for 16 million hours. And it's not like that killed that theory over there.

You know, it's not like they're like, "Oh, you're right, I guess there's no there there on Benghazi." And I like, I think we should maybe dismiss the straw man arguments of like, "Well, are they corrupt? Are they doing nothing? Or are the dot dot dot?" Like, all right, we can dismiss all that and look at, are they being too cautious? You know, are they being with something? Because yes, it's bad if somebody brings charges and we don't convict them.

But like, if we truly believe or if they truly believe based on the evidence that but crimes were committed. Attack on our Capitol was one of the lowest moments in history. Don't you think it's worth some amount of risk, if you're, say, 60% sure maybe that you could get a conviction? What percentage do you think they need to be working with?

0:34:09 Randall: I Don't know if you can put an exact number on it, but in general, you're not supposed to indict unless you believe you can likely convince the jury beyond a reasonable doubt admissible evidence, things. There's a difference between the criminal justice system and other ways to get information to the public, right? I mean, the Benghazi hearings were obviously congressional hearings. We've got the 1-6 Committee that is releasing a lot of public information, is going to inform the public on what happened, going to have public hearings, and that's really their job, right. Right. That's the, that's the vehicle for all of us learning what happened and trying to establish that as as history. Right. So that the spin doesn't sort of take hold, we'll have a solid record from them for the public of what actually happened that day.

0:35:05 Randall: That's not the purpose of the criminal justice system. Right. We don't bring prosecutions just to show the public what happened. We don' bring prosecitions when we think, you crimes have been committed that we can actually prove. So I think the fact that we've got these two proceedings going on in parallel is actually helpful, because you can look to the January 6th Committee to get your public information while the criminal process is going on, sort in the background and in a non-public way, the way the criminal processes supposed to proceed.

0:35:33 Thomas: I've also heard something about a 60-day policy. Is that? They aren't going to indict somebody within 60 days of an election well

0:35:41 Randall: Yeah, it's even written down. It's just kind of an informal policy that DOJ has followed for a long time, which is you don't bring new indictments or take other significant investigative actions within 60 days of an election against someone who's like involved in the election. Right. So try to avoid. But so that wouldn't, I mean, if you're talking about Trump, that's not till September 2024.

0:36:02 Thomas: He's always on the ballot I

0:36:04 Randall: 2024. But I mean, I think what that points to, you know, another factor in this that you can't get away from is just the unique nature of this. I mean it's incredibly complicated issue, the idea of Biden's Justice Department indicting the guy that may be his main 2024 rival, you know. And no matter how airtight your case is, that's going to, half the country is going to to believe this is just a political hit job to take out Trump because Biden doesn't want to run against him. I

0:36:04 Thomas: Think

0:36:35 Randall: Mean, that's unavoidable.

0:36:35 Thomas: That's even more reason to not care about it because yeah because no matter what happens no matter across every t and dot every I and even dot the lowercase j's like that tight airtight they're still half the country is going to say this is a political hitch up doesn't matter yeah

0:36:37 Randall: Yeah. Yeah, but I think that just further reinforces the point that if they were going to do it, you've got to get it absolutely buttoned up as airtight as possible. The old saying, if you're going to strike at the king, you better not miss. I mean if they are going to bring this case, they've got a have as close to a drop dead solid case as you can, I think for that reason. And so you don't indict when it's maybe 55, 45, right? I mean, you want to really be pretty sure you're going to win if you're gonna take the country through that turmoil.

0:37:17 Andrew: So A couple follow-up questions on that, but I, but I, I want to go back to to Thomas's question about the political doctrine to you, because you answered that in a very careful sort of way, right? Which is that you do not indict a candidate 60 days before an election. The sense at DOJ that it would be interpreted that narrowly, or is it? Because I've a look at the manual and it's not a lot of help. It often gets kind of reported as, you you don't make politically charged indictments two months before an election. And, you Know, that interpretation you could see would make a big difference.

0:37:50 Randall: Yeah. Yeah, I Think that's right. And like I said, this isn't as far as I know, this hasn't actually written down anywhere, officially, it's not in the justice manual or anything like that. It's kind of a, an internal practice that DOJ has had for a long time. So you probably get different people that would say different things. If I'm remembering Remembering correctly, I think this came up towards the end of the Trump administration when they were making noise that Hunter Biden might be indicted. I thinks, said something like, well, that policy only applies to the candidate. So it wouldn't be a problem to indict the candidate's son. And that was a controversy.

0:38:27 Randall: I think there was some controversy about that at the time. Yeah.

0:38:27 Andrew: God bless you, Bill Barr.

0:38:30 Randall: So, I mean, but that sort of goes to your point, right? It all depends on how you interpret the policy. I think a lot of people would agree that it's broader than just saying you don't indict the candidate. You just don't take sort of politically charged prosecutive steps within 60 days of an election. But, you know, people probably differ on how you define that.

0:38:30 Thomas: Yeah

0:38:46 Andrew: Are I guess my kind of terminal question is, um, are- you willing, and as a, uh, you know, crafty lawyer and former prosecutor, probably the answer is no, but I'm gonna push you anyway, are are areyou willing I mean that as a as a compliment um are

0:38:58 Randall: Crafty, huh? Wow. Okay.

0:38:57 Thomas: Like you do knitting while while you're prosecuting? Maybe that's how he met. I don't know.

0:39:04 Randall: Yeah. Origami.

0:39:06 Thomas: Yeah.

0:39:06 Randall: Yeah, right.

0:39:02 Andrew: Yeah, make The little frogs. That would be great. Is there a time period sort of at which you're willing to draw a line in the sand and say, all right, if, if we haven't seen movement here, then this really seems like the delay has taken too long, or that, uh, you know, we can infer that that not a lot is going on?

0:39:25 Randall: Don't think you can put a, time frame on it. It's more a matter of just whether we see any activity, right? I mean, if you see that DOJ is like folding up shop and these prosecutors that were working on the case are, are being sent off to other assignments and there's no more news about other spinas going out and things like that, then at that point, then you start to look and consider whether you feel like it was adequately done or not. But again, even then, if I talk about a criminal investigation, I hope people don't get me wrong when I say they should take the time to do it right and take whatever time it takes. I'm by no means guaranteeing that I think at the end of this process that there is a Trump indictment, or even people very senior to him. That may not happen. I'm just saying that to make that determination, a significant amount of time and a sort of process that you have to go through to gather all that information.

0:40:14 Randall: And to me, it appears that that's what's happening. So if it gets to a point when that does not appear to be happening, then you can to the extent you can from the outside whether you think that was justified or not. But even then, without having been in the grand jury, without having knowing everything that those people know it's awfully hard to make a judgment Well,

0:40:33 Andrew: That if that doesn't happen, I mean, based purely on what we know to date, if that doesn't happened, if after, after two months of cavorting around the country, arguing that the election was stolen, whipping up crowds into a frenzy, that speech on the Ellipse, bookended by the 20,000 communications between Trump and John Eastman, setting forth what we know we're not war gaming scenarios, areas, but were in fact the plan to, uh, induce the Vice President of the United States to commit treason and, uh, unilaterally declare electoral votes invalid, if, if there's nothing, you, you'd really be okay with there being no, no consequences for anybody high up?

0:41:21 Randall: I didn't say for nobody high up and so Trump himself. I mean, if there are unique constitutional considerations when it comes to prosecuting a president, uh, I do think some of the senior people around him are, are much more likely to to end up, you, being charged with something. Um, and I wouldn't necessarily be okay with it. I'm just saying I don't think there's any guarantee, just because the process is playing itself out. You know, it's not impossible that in the end, they'll decide that whatever constitutional reasons, you know, that they can't make the case against the former president. Know, I don't know. I just, I'll say, I don't think it's out of the realm of possibility.

0:41:55 Andrew: I think think I would be I think I Would Be on Team Chicken Shit Prosecutors at that point but But

0:42:02 Randall: There's an interesting column in the Post today, and I'm forgetting, I think it was today, I'm forgetting the author's name, but arguing something that I've sort of said in the past as well, which is, you know, when it comes to proving a criminal case against Trump, the issue becomes, is he a criminal or is he delusional, right? Or maybe it's both. But I mean, to the extent he really believes this crap, you now, despite what people have been whispering, telling him, I mean I know they've accumulated all this evidence about people telling him there was no fraud, there was not fraud, he's not exactly famously known for taking the advice of his advisors, right? Or necessarily believing them. And then he's got other people like Eastman and probably other advisors, you know, Bannon, who knows what else, telling him, yeah, there was fraud, yeah there was fraud. And to the extent he really believes that, then that undercuts the proof of criminal intent for a lot of charges, right.

0:42:52 Randall: Because then the defense is a lack of intent that, yeah, I did all this stuff, but that was because we truly believed that there was this widespread election fraud and we were trying to find a means to counteract that. Now, I don't believe that for a minute, but I'm just saying in the hands of a skilled defense attorney before a jury that's got to be unanimous, unanimous finding beyond a reasonable doubt, there are issues there about his state of mind. And in some weird ways, his zaniness could actually end up helping him in terms of a criminal defense.

0:43:28 Thomas: You think he's going to find a skilled defense attorney? He hasn't been the cream of the crop on Team Trump.

0:43:33 Randall: I like it.

0:43:35 Thomas: Trump.

0:43:34 Andrew: And Oh, to

0:43:35 Randall: Yeah, I heard Alan Dershowitz is available, I think.

0:43:36 Andrew: Buy hamburger.

0:43:39 Thomas: Oh, wow. That would be the best Trump could do, honestly.

0:43:41 Andrew: Yeah. No, absolutely. And I have to say, I mean, I think I want to amend my apocalypse statement. Right. Like I think if if you're a prosecutor and you indict the president and the public defense that his attorney puts on is he's too stupid to crime, then that's you know what? And and is acquitted on that basis I'm okay with that, right, that's the same, that's why that's in the Muller report in volume one as to why, uh, you know, he would not recommend bringing charges against Donald Trump Jr. for the uh Trump Tower meeting in 2016, and basically, like, it's as close as Bob Mullar was ever going to get to saying yeah, Donald Trump Jr. is just too stupid to to to know what he was doing

0:44:01 Thomas: He's too stupid to know the truth. Yeah, do it. Yeah.

0:44:25 Randall: They're too dumb to collude. That was my phrase from the Mueller investigation.

0:44:26 Andrew: Yeah yeah there you go well well put and yes I I think I I I think I'm uh on team yeah go ahead give that a try if you think that the the sole defense is going to be no no he's really equal parts idiotic and insane yeah

0:44:33 Randall: Yeah. Yeah, well, I think that's a fair point.

0:44:46 Andrew: All right, one Thomas may have more, but uh, I have one kind of wild card question, and that is, is, is there a good reason right now why House Democrats should not be talking about impeaching Clarence Thomas? We know where that's gonna go, but like those those text messages between Jenny Thomas and Mark Meadows uh seem pretty bad to me.

0:44:58 Thomas: No. Yeah, what

0:45:06 Randall: They do. You know, I'm a little bit more on the fence on this, just because in general, I don't think we want to have a policy.

0:45:13 Thomas: Else is new, professor? What

0:45:15 Randall: I know, I'm chicken shit, being chicken shit again.

0:45:15 Thomas: Else is new? These chicken shit professors coming on our show.

0:45:18 Andrew: I

0:45:20 Randall: I don't think you want a general, so just Just as a general matter, I don't think you want a policy that are accountable for the political activities of their spouses, such that have to recuse in any case that their spouse might politically have an issue with. I don'T think as a General Principle that should be the rule. Cool. So then you're getting into a

0:45:43 Thomas: Right. Yeah

0:45:42 Andrew: Agree with that but I think there should be an exception for insurrections yeah nothing

0:45:44 Thomas: If there's. Yeah well that and not recusing on specific cases where, yeah, I mean, that was bad.

0:45:47 Randall: Gray area. Yes. That's what I was

0:45:53 Thomas: And being the one dissenting vote. Yeah, I'm sorry.

0:45:54 Randall: Going to say next. Now, if in fact, I don't think this has been confirmed yet, but if in fact, like her text messages were among those documents that they were going to release in the archives, and then he's the lone dissenter because his wife's and his wife documents are in there. You know, that to me is pretty bad.

0:46:05 Thomas: Yeah.

0:46:13 Randall: You Yeah. He certainly should have recused. Is that grounds for impeaching a Supreme Court justice? I don't know.

0:46:18 Thomas: Alternative?

0:46:20 Randall: There isn't one. Yeah, yeah, yeah. But the

0:46:20 Andrew: Nothing

0:46:21 Thomas: Yeah, exactly. So the alternative is you do nothing and then it's impunity from then on.

0:46:26 Randall: Impeachment's not going to work either, and you're never going to get enough Republicans to vote. You need 67. So it is kind of a pointless exercise. Exercise.

0:46:35 Thomas: Did you think they shouldn't have impeached Trump either of the times?

0:46:38 Randall: No, no. You're right. Have, I thought both impeachments were fine and I thought he should have been impeached for the Mueller report.

0:46:43 Thomas: Yeah. Well, my hardball question, I have one really important question here, Professor Eliason, which is, you always says the wheels of justice churn slowly. And I have always joked that I don'T know what the wheels making ice cream or butter or something.

0:46:57 Randall: Wheels don't churn, man.

0:46:59 Thomas: So I thought it was they turn slowly because wheels tend to turn, but your article has the wheels of justice grind slowly. I think we need some clarification on this. I might, I mean, grind, that's pretty good. We've now got three contenders for what the wheels OF JUSTICE do in an inadequate way.

0:46:59 Randall: Yeah exactly.

0:47:17 Randall: So mine

0:47:17 Andrew: We all agree that it's slow that's the important part

0:47:19 Thomas: Yeah.

0:47:20 Randall: Is like the wheels in a the mill that are grinding the wheat, see? So the wheels grind, right?

0:47:24 Thomas: Yeah, yeah. Producing that refined justice, that high indictments.

0:47:30 Randall: Exactly. Fine, high quality, grade A justice. Yeah, well, wheels don't churn. No, that's just silly.

0:47:34 Thomas: Yeah. Yeah, okay, thank you. Can we both agree that wheels do not churn?

0:47:38 Andrew: All right, well, That's all the time we have for Randall Eisen. Here, thanks for joining us, you'll never be back on the show

0:47:43 Thomas: Good thing I'm in control of the final edit. Yeah this would never see the light of day if Andrew was the editor.

0:47:48 Randall: You and me, Thomas. I'm with you. I's

0:47:52 Thomas: No response from Andrew on that. Okay. Knowing Andrew, I expected like a very thorough reasoning on why that actually makes sense. And then I would think I was wrong by the end of it. But OK.

0:47:58 Randall: Calls

0:48:03 Andrew: I feel like I'm winning the rest of this exchange so I'm okay on that

0:48:07 Thomas: OK, well, we'll we'll leave it there. We'll let the audience decide on whether it churns, grinds turns. You know, we will see. But thanks Oh, that's a good idea. Patreon poll as well. Yeah. But thank you so much, thanks much, Professor Eliason, as always, for coming on and inching closer to taking that golden jacket from Seidel. I.

0:48:14 Randall: For a Twitter poll, obviously. Yeah.

0:48:27 Randall: I'm not giving up. Coming for I'm you, Seidel.

0:48:29 Andrew: Seriously, thanks as always. It's always a pleasure having you on the show. And you are a treasure trove of knowledge. And we follow your columns in the Washington Post. Anything else you want to plug lately?

0:48:41 Thomas: Oh, yeah.

0:48:42 Randall: I'm crafty, too. Yes.

0:48:43 Andrew: Yeah.

0:48:43 Thomas: Yeah. Do you want to plug your Etsy?

0:48:47 Randall: Yeah, buy my craft kits. No. Nope, nothing else. Thanks. It's always a pleasure. Enjoyed it.

0:48:51 Thomas: All right. Take care.

0:48:53 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:49:02 Thomas: Now it's time to thank our Hall of Famers, our all-time greats over Patreon.com at slash law, and we are on to a new month of shout outs. Yeah, uh, this month is a quartile month, we're off the quintile system for this month, so a little bit chunkier a little bit chunkier shout outs, uh, so I'll begin our chunky shout outs here we go

0:49:17 Andrew: I never liked the quintile system that's That's crazy. And if you'd like a chunky shout out,

0:49:27 Thomas: Thank you to no associate of the associate of the Republican Party has ever passed the Bechdel test, fraud vicious, what is the vish, vicious choice, I don't know how, oh yeah, vicious, why is that a food term, what is that, but, oh, fraud, vicious swat, everything.

0:49:40 Andrew: Vichyssoise. Yeah, it's a cold soup. Nice.

0:49:51 Thomas: Okay, weird. It doesn't matter what I believe. It only matters what I can prove. You got to fight for your right to ex parte. Karis Ford, the CDC says, take legal advice from a podcast. I'm fast at sex. Michael Gross, the class. Too many theoretical degrees of epidemiology have turned into theoretical degrees of military strategy. Veggie. Yeah. Purplecouch.com. That's without an E, by the way. Are you supporting a friend through a divorce or going through a diverse? Listen to the assembled experts at purplecouch dot com. Loaf of Orange. Indiana and Marion the Corgis got split up in the divorce. So now it's just Marion. Oh, sad to hear that. Or or maybe congratulations. I don't I don't know. I'm not sure what to say after divorce. Who knows? Tolkien Geek. Trans Vin Diesel asks, can we get Chase Strangio on the pod to talk about anti-trans bills. Don't know who that is, but maybe. OA live show Mardi Gras 2022 in New Orleans.

0:50:06 Andrew: I'll

0:50:52 Thomas: Politics from a different but enlightening angle. The novel Vortexes is being considered for an option and screenplay. Yay. Oh, wow. Okay. Okay. A streetcar named Deez Nuts. Funny every time.

0:51:06 Andrew: Never not be funny. Have you seen the Octopodes nuts? That's the gag.

0:51:11 Thomas: I haven't. Sorry. I'm not up with you children and what you're doing. 5CRR. Creature, dragon, 6-6 flying. Whenever this creature deals combat damage to a player, it deals that much damage to each. I think it's creature. I don't remember the name of that, but it's a cool dragon. So next time tell me what it's called. I guess I'll find out in a month. L.T. Salty Seattle driver on YouTube is sad that apparently Thomas would not appreciate my Dr. House complex. Yeah, probably not. Inspired zombie working through the archives, making great progress on OA 562 and COA 4553. Wow. You're almost there, There, I think, right? Yeah, getting close.

0:51:52 Andrew: Yeah. Yeah. We have 800 episodes of Thomas in the Bible when you're done that? So

0:51:57 Thomas: Nah. The big black bug bit the big black bear and the big black bear bled blue blood. There you go. Got it. Nailed it. Your turn, Andrew.

0:52:06 Andrew: All Right. In very loving memory of my uncle John, I love you, John, rest in peace. That is just such a sweet sentiment. Then continuing, "When wood duck, when wood tuck duck, the wooden duck, it decked gray duck, gray wooden deck" at Atomic Penguin 7 on Twitter. I have no idea what that's supposed to be. It's not quite tongue twistery, but it is a goofball, so I like it. Joseph Vigiano, Dr. Scoop, Little Doug and Heather, Mr. and Mrs. Pusher. I just submitted my master's thesis on transgender health communication. That is awesome, great work. Hand woven sustainable textiles for your home and body at kellywoveit.com, Abigail Bartlett. I wish, I don't think Thomas will get, get this. Choke.

0:52:50 Thomas: Okay.

0:52:51 Andrew: Chica chica, slim Katie. All for a fun fantasy story, read The King's Own by W. Marshall, now on Amazon. I, I love getting, uh, you know, book reviews and story reviews, uh, you know, recommendations here in the, uh, Here In the Patreon Comments Yeah. From That Thing in the attic. Sean McGovern, liberals own guns to support root cause mitigation, not ineffective gun control. Oh, a Chicago live show, you bring the law talking guys, I'll bring the jardinera. Yeah, I want some Uh, I Want some Chicago beef, uh, I definitely want some deep dish pizza. Love Chicago deep dish pizza. And, you know, maybe, maybe special night out too, so, but yeah, we'll come to Chicago, definitely in the summer. The Fat Jedi, eating cake and drinking Emperor's Brewery beer in the Death Star canteen. Zach Bloom, support Decarcerate, working to end mass incarceration in Arkansas, that is decarcerear.org. In constitutionally vogue, tell Morgan, get Thompson, I have Ray and, uh, two more. Pizza school, the corgi thinks John Oliver should make

0:53:04 Thomas: Yeah. Take book review advice from a Patreon quartile. Yeah.

0:53:22 Thomas: So close.

0:54:00 Thomas: Pizza

0:54:00 Andrew: Katanji Brown Jackson's rep on Dog Scotus. A quirky, I think That's An outstanding Idea

0:54:00 Thomas: School. Oh, yeah. I forgot about Dog Scotus. We'll have to see that. Yeah. Can't wait.

0:54:07 Andrew: Yeah. Oh And Of course, uh, the top of the first quartile, legal eagle is so handsome, we

0:54:16 Thomas: There you Go. Thanks so much, top patrons. We love you so much.

0:54:20 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:54:26 Thomas: And now it's time for T3D answer time.

0:54:30 Thomas: Let's see. Do I need, is this another warmup question or or did I get one right? Let's find out.

0:54:35 Andrew: I will, I will do the chore when I draw one out of the practice hat. Okay, yeah, this was a, uh, lovely, a, uh, and straightforward question. State passed a statute that conditioned the holding of a classroom teacher position in all K-12 public schools in the state on being a citizen. Group of teachers that were denied employment on the basis of their citizenship challenged the constitutionality of the statute in state court. Assuming there are no issues of standing, what is the most likely outcome? Uh, I will tell you, just understanding and parsing through the answers, you went with A, the statute will be deemed constitutional, it is rationally related to a legitimate government interest. Um, you basically correctly described answers A, B, and C, which is, answer A is the rational basis test, answer B is the intermediate scrutiny test, answer, answer C is The strict scrutiny test. Right, so instantly you should be thinking, this statute discriminates between two classes of people, right?

0:55:30 Thomas: Yeah.

0:55:30 Andrew: So the question is going to be, is first, the first part of your filter is, whenever you're distinguishing between two glasses of people, is the best argument an equal protection argument, right? And if it's equal protection, then the question is what standard applies here, right? Is, sort of, a, which was your backup answer, it's kind of a wild card answer, right, it is will be deemed unconstitutional as it infringes on a legislative area that is exclusively reserved for the United States Congress. And you called this one out as an attractive distractor, which I think is exactly right, right?

Because the Constitution does say. And you gave this analysis word for word, that the ability to determine who is a citizen Is Itself left up to the federal government. Right. But the question is, once the federal government has made that decision, can states implement and classify on the basis of that classification? And then the question would be, which level of scrutiny does it trigger? And the answer, as you rightly suspected, given the country that we live in, is that discriminating, uh, on the basis of citizenship, uh, triggers only rational basis review, which is a, which was what you guessed, which is correct. It

0:56:12 Thomas: Yeah, all right.

0:56:45 Andrew: Uh, does Die

0:56:45 Thomas: Wow, I really feel like I nailed this one. Yeah! We're awful, and we don't care about non-citizens! Woohoo! Oh, no, yeah, that's fair. Look, I don't make the rules, I just ace the bar questions occasionally.

0:56:46 Andrew: Whoa Our Terrible country Yeah Yeah Yeah Um, no, you, uh, you absolutely

0:56:58 Thomas: I feel like I had this right on.

0:56:58 Andrew: Nailed This One Yeah You Had it right on for the right reason. Um, the specific case is A case called Ambach versus Norwick. Well, and It's a 1979 Decision So, yeah, yeah.

0:57:00 Thomas: Wow. That were evil. I feel, like, I remember you saying that that non-citizens aren't a protected class in something, right? I think that was, perhaps it was way back during the, like the Trump's Muslim ban stuff, maybe during that coverage or something.

0:57:15 Andrew: Yep. That's Exactly Right. Well And, and that same analysis will apply here, right? That if, if you are drawing distinctions in the school setting, there is a side issue about whether that is considered to be performing political functions. And therefore, but, but nevertheless, it, right, is a, as a general rule of thumb, is reasonably settled principle of law that most of the restrictions that discriminate by and between citizens and noncitizens only have to pass the rational basis test. So. So, yeah. And again, as we pointed out on Trump's Muslim ban, what, what screwed that up? The initial implementation was the failure to fully distinguish between U.S. citizens. Right. Like a number of U.N. citizens traveling abroad could have been swept up in it. And then what potentially screwed it up the second time were the details left littered in the record as to how that this, you know, was going to come below and beneath even the kind of bare minimum you need for rational basis scrutiny.

0:58:23 Andrew: But, uh, yeah, saying we're going to make sure that all of your teachers are U.S. citizens, uh, state wants to pass that law, and many states have, uh, will likely be deemed constitutional, rationally related to a legitimate government interest.

0:58:37 Thomas: Yeah, mixed feelings, but you know, importantly as a law student, yeah, thank you. Of course, I would have to ace one that's like about our, you know evil laws in this country. Well who else should we blame uh who's this who's this week's big winner can take some of the blame

0:58:40 Andrew: Can Celebrate Your Winning Yes I I, for one, blame you. So, all Right And Well, Thomas, I have to tell you, you gained a leg up on many of the folks playing on social media. A lot of guesses were split between C and D, but one person who did manage to get it right was Jaeger von Kass, who says, I've caught up with the pod and I think, slash guess, Thomas has caught back up with the right answer for T3BE, irrational xenophobia can be supported by a rational state interest in educating its citizens, so I answer, slash guess, A. Well, you think, slash guess, correctly, and congratulations on being this week's winner, everyone, let's give them a follow. That is at J-A-G-E-R-V-A-N-K-A-A-S, Jaeger von Kass, thank you so much and congratulations on being this week's winner.

0:59:43 Thomas: And that's our show. One more reminder. Come see us at AACON in Atlanta this week, Thursday, game time. I mean, we'll be there all weekend, but Thursday's when we're doing that game night. Andrew, I say we. Royal we. I'll be There.

0:59:56 Andrew: I mean thomas will be there you have to you have have to beat heath so yeah that's

0:59:58 Thomas: Yeah. I'll Be Playing the Games. That applies no matter what we're talking about in any context. If there's a game, Heath and I are going at it. It's fun. We're competitive. So we'll see you there we hope to see you there and if not that's okay we'll se you for our next show

1:00:05 Andrew: All

1:00:15 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.

1:00:48 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.