Transcript of Episode 310 – Citizenship and the Military and…

OPENING ARGUMENTS EPISODE # 310

Citizenship and the Military and…

[Show Introduction]

Thomas:           Hello and welcome to Opening Arguments this is episode 310, I’m your host Thomas Smith, that over there is Andrew Torrez.  How you doin’ Andrew?

Andrew:          I am fantastic Thomas, how are you?

Thomas:           I am doing great!  We got so much to talk about, oof!

Andrew:          [Laughs]

Thomas:           Big news week!  There is so much to cover we are surely not going to be able to accomplish it, but some announcements first, probably mostly related to what we can’t do, [Chuckles] or don’t have time to do.  So I have a note here that we’re doing opioids on Tuesday?  So I guess the news cycle’s gotten that we’re just out with it?

Andrew:          [Laughs] Yeah!  That’s right!

Thomas:           Alright!

Andrew:          You and I are gonna sit in a room and take as much Oxy and – no.  We’re going to discuss the landmark opioid trial-

Continue reading “Transcript of Episode 310 – Citizenship and the Military and…”

OA310: Citizenship and the Military and…

Today’s Rapid Response Friday takes a look at the recent Trump Administration memorandum “clarifying” the rules on military citizenship for children born to U.S. employees — largely, those in the armed forces — serving overseas. Is it as bad as you’ve heard? (Yes.) Is it actually worse than that? (Yes.)

First, though, we continue to revisit the apportionment question discussed in Episode 307. Have we finally crowdsourced a solution? The answer may surprise you!

After that, it’s time for a deep dive into the latest policy manual update from the department of U.S. Citizenship and Immigration Services “clarifying” that servicemembers living overseas don’t actually count as “living in the United States.” Will this cause Trump-supporting military members to vote for Elizabeth Warren in 2020? (No.) Should it? (Yes.) Is it way, way worse than you could possibly imagine? Oh yes.

After that, it’s time for a very brief Andrew Was Wrong (the best kind!).

Then, it’s time for an all-new Thomas Takes the Bar Exam, in which we have… something approaching “Don’t Take Legal Advice From A Podcast” Law? You won’t want to miss this question involving a disgruntled landlord and a put-upon law student. Can Thomas break his losing streak? Listen and find out!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first covered the potential apportionment crisis in Episode 307.
  2. You can read the latest policy manual update from the department of U.S. Citizenship and Immigration Services for yourself.
  3. The relevant legal provisions of the Immigration and Naturalization Act are 8 U.S.C. § 1401, 8 U.S.C § 1431, and 8 U.S.C. § 1433.
  4. This is the August 15th, 2019 story about how the Trump administration continues to use the “out-of-wedlock” rule against LGBTQ couples.
  5. Finally, this is the garbage, racist National Review article on birthright citizenship, and this is U.S. v. Wong Kim Ark, 169 U.S> 649 (1898).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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Transcript of Episode 309 – Stormy Daniels & Hope Hicks

OPENING ARGUMENTS EPISODE # 309

Can Stormy Daniels Bring Down Hope Hicks?

[Show Introduction]

Thomas:          Hello and welcome to Opening Arguments this is episode 309.  I’m Thomas Smith, that over there is Andrew Torrez, how you doing Andrew?

Andrew:          I’m fantastic Thomas, how are you.

Thomas:          Well I’m doing great because we’re getting’ back to Stormy time!  I’m so excited, it’s been too long!  It’s been too long since we talked Stormy Daniels on this show.  Can’t wait to hear the update.  We’ve also got some other good stuff planned.  We’ve got some Sheldon Whitehouse talk, I know everybody’s buzzing about-

Andrew:          [Laughs]

Thomas:          Clamoring for some Sheldon Whitehouse!  Just as much as Stormy Daniels.  And also we’re gonna answer – well, probably Andrew.  Most likely Andrew will answer the question why the Mann Act didn’t apply to Epstein?  Question mark?

Andrew:          Mm-hmm (affirmative)

Thomas:          Interesting.  Alright, before that, a little update from you?

Andrew:          Yeah, I think that Thomas, you and I are gonna have to do another music episode soon.  We still get like three to four Katy Perry comments per week, everybody is just – everybody has an opinion on that.  And as of today I got the news that Eminem is suing Spotify, although-

Thomas:          Except not, yeah.

Andrew:          Yeah, it was later walked back that it was his record label and not him.

Thomas:          Yeah.

Andrew:          So, we’ve got some-

Thomas:          Lots of music law topics?

Andrew:          We’ve got some legal, music – maybe we can do like a music-slash-baseball episode, right?

Thomas:          Ooh.

Andrew:          I dunno, but yeah.

Thomas:          That way no one can listen!

Andrew:          [Laughs]

Thomas:          [Laughs]

Andrew:          Then we can talk about our Fantasy Football team!

Thomas:          Yeah, I was gonna say, add on our Democrat Nomination Fantasy Team and then we’ve got a sure hit!  Can’t wait!

Andrew:          [Laughs]

Thomas:          No, I think people have liked the music episodes and there’s always more music law.  Someday we can talk about that George Harrison rip-off of that one song.

Andrew:          Yeah.

Thomas:          ‘Cuz I think there are people who don’t think that was a good decision, so should be fun.  Anyway, yeah, that’s an interesting case.  It’s sort of like how Michael Jackson owned all the Beetles rights, you know?  So I think that’s what’s going on with the Eminem thing, is he didn’t even know-

Andrew:          Yeah, yeah.

Thomas:          -that someone was suing on his behalf.  But anyway, okay!  With that said, we need to get to the Sheldon Whitehouse talk that we’re all promised.

Andrew:          [Laughs]

Thomas:          Everybody’s chanting “Shel-don White-house! Shel-don White-house!”

[Segment Intro]

Thomas:          I see your notes here, Andrew, that Sheldon Whitehouse listens to the show and it’s sort of like that Futurama joke where he’s like, “wow, The Zapp Brannigan?  Who’s The Zapp Brannigan?”

Andrew:          [Laughs]

Thomas:          So, Andrew, who is The Sheldon Whitehouse?

Andrew:          So Sheldon Whitehouse is a Democratic Senator from Rhode Island and he has done a couple of things that I really, really want to shout out here on the show!  First, in April of this year he put together a briefing paper, 31 page briefing paper, for the American Constitution Society.  That was the group that co-sponsored my debate with Justin Walker in Louisville, they are attempting to sort of carve out a space as the counterweight to the Federalist Society.  That briefing paper is entitled “A Right Wing Route, What the Roberts Five Decisions Tell Us About the Integrity of Today’s Supreme Court.”  And what he does is go through, his methodology is to look through the past 12 years of Supreme Court decisions beginning with – all on the Roberts Court.  So from 2005 through the end of the 2017-2018 term, so it does not count this last Supreme Court’s decisions, which were, as we’ve covered on the show, egregious.  The top line finding that Senator Whitehouse documents is – why don’t I throw it this way – if I were to tell you that there were several hundred decisions – 212 to be precise – 5-4 decisions-

Thomas:          Ooof.

Andrew:          -over that time period.  Of those 212, there are lots of different – this is one of the difficulties in methodology, right?  You know, you’ll sometimes see oddball alignments on cases of no political significance.

Thomas:          Right, yeah.

Andrew:          And so, you know, Politico will rush forward to be like, “Ruth Bader Ginsburg sides with Brett Kavanaugh!”

Thomas:          Yeah.

Andrew:          Right, right.  So of those 212 5-4 decisions, 78 of them were split 5-4 where – and again, the membership has changed over the years.

Thomas:          Mm-hmm.

Andrew:          But it’s always been a 5-4 or 5-3 split.  None of the liberal Justices joined with the conservative block, that’s what Sheldon Whitehouse called-

Thomas:          In 70-

Andrew:          78 of those 212 cases.

Thomas:          Okay.

Andrew:          Of those 78 cases, how many do you think had clear political implications?

Thomas:          78?

Andrew:          Yeah!  73! [Laughs]

Thomas:          I was pretty close!

Andrew:          Yeah, so there were a handful of them.  In those 73 cases which Whitehouse divides into four categories:  One, controlling the political process to benefit conservative candidates; Two, protecting corporations from liability and letting polluters pollute; Three, restricting civil rights and rolling back anti-discrimination laws; and Four, advancing a far-right social agenda.  That is, I think, pretty narrow.  You could certainly argue other things have political implications, but those are things that the average person would look at and go, “okay, these are unquestionably political cases that you know what the Democratic result is and what the Republican result is.”  You know what the – when it’s gay marriage you know who’s on what side for pro-gay marriage, who’s anti-gay-marriage.  Who’s pro-civil rights, who’s anti-civil rights?  Of those 73 cases that fit into – So, number one it is remarkable that of those 78 cases that split on ideological lines they split over ideological cases.  I would expect a greater number than that just from sheer chance.  That’s a mathematician’s write-in, maybe we can get another combinatorics of 212 decisions, what’s the likelihood that you’re gonna get a 5-4 ideological split on a non-ideological decision?  I would think it would be greater than 5 out of 212, but maybe I’m wrong.  Of those 73 cases, which there’s an ideological split along ideological lines for political issues, the conservative block ruled in an unpredictable way how many times?

Thomas:          Unpredictable way?

Andrew:          Yeah.

Thomas:          Zero times.

Andrew:          Zero!  Zero times!  And, again, that’s – on the one hand, we’re all kind of cynical, especially show listeners, maybe it’s a “duh” moment.  I don’t believe this would be true for any other period in American history.

Thomas:          Can you remind me the period again?  What years is this?

Andrew:          2005 to the end of the 2017 term, which is Summer 2018.

Thomas:          Okay.

Andrew:          So it does not include the last 2018-2019 term, which of course-

Thomas:          As you said, yeah, would be even worse.

Andrew:          Yeah.  Which would make these numbers way-

Thomas:          But I guess I’m saving my reaction for – it seems like you’re starting with one side of the data, so are we gonna find out when it was Democratically decided 5-4 is there some comparable numbers or no?

Andrew:          Oh, no no no! 

Thomas:          Sounds good.

Andrew:          I’m not trying to set you up in that way whatsoever.  I’m telling you, on face value – and this is worth, I’m gonna link the brief in the show notes, because it contains in the appendix, it’s a 15-page appendix, each and every one of these 73 opinions and these are, again, the kinds of decisions that garner headlines.  The kind that you look through and you say, “oh unambiguously, yeah, these are political questions that came up before the Roberts Court and every single time the Roberts Court split 5-4 or 5-3 on ideological grounds in favor of the conservative position.”  Okay, so great!  Good on Sheldon Whitehouse for doing this, for documenting!  And the reason, by the way, for 5-3 is that Elena Kagan, because she was Solicitor General, had to recuse herself-

Thomas:          Had to recuse, yeah.

Andrew:          -from a disproportionately large number of cases.  So as you go through, these are the kinds of cases that we’ve talked about on the show.  Town of Greece v. Galloway, Burwell v. Hobby Lobby, Janus v. AFSCME, [Chuckles], Husted v. Randolph Institute, you know a bunch of EPA cases, a bunch of FEC cases, Shelby County v. Holder, that was the voting rights act case, Citizens United, I mean, these are the notorious, topline decisions, and this report continues to point out in each of these cases, in a box on the side, the judicial principle that ostensibly right-wing judges are supposed to have that were disregarded in this case.  So Federalism, Originalism, Stare Decisis – it’s a great read.  But I wouldn’t be talking about this if this were just a speech that Sheldon Whitehouse gave to the American Constitution Society.  Instead, he did something really, really clever, and I want to call it out here.  So, put a pin in that report.

Thomas:          Hmm!

Andrew:          And now I wanna tell you about a case that is pending for which the Supreme Court has granted Cert.  So, because the Supreme Court has been crazily activist on guns there will be a change that was signed into law by Governor Andrew Cuomo on July 16th that changes the State Law that then supersedes the New York City Ordinance.  So the New York City Ordinance was about carrying firearms within the New York City limits, it was prohibited, there was a lawsuit brought by gun owners who wanted to transport their guns from a home to a second home, to a shooting range, and they were like, “but to drive there I have to drive on 95, I have to drive through New York City, and I’m gonna be subject to this law.”  And so the State of New York said, “you know what, you’re just doing this to try and get another gun case before the Supreme Court, so you know what?  We’re gonna change the rule.  Fine.  You wanna drive with a gun in your car in New York City, have at it, go crazy. “  And that’s in fact what they did.

Thomas:          I mean, who’s the joke on, though?

Andrew:          Yeah, right.

Thomas:          Fine, have all your guns!  Are you happy?  Yes, actually.

Andrew:          Yeah, yeah.  I mean, look, it has to be unloaded and locked and separate from the ammunition.

Thomas:          Okay, alright, that’s fine!

Andrew:          Because that was the procedural posture that this case was brought in.

Thomas:          Mm-hmm (affirmative).

Andrew:          It was “look at how they’re infringing on our 2nd Amendment, I can’t even carry an unloaded firearm through!” And so Cuomo was like, “you know what?  Fine.  We’re gonna change the law, we’re gonna supersede the New York City Ordinance and drive to your gun range.”

Thomas:          And then conservatives were like, “but we still wanna be mad at you, so…”

Andrew:          Yes!  That is 100 percent, that is the procedural posture of this case!  And I will read you the Petitioners in this case, the New York State Rifle and Pistol Association, their “we just wanna be mad at you even if there is no underlying city Ordinance anymore.”  Because the city goes and says, “look, Supreme Court, you ought to dismiss this case as moot now because there’s no law, the Petitioners have no rights to protect,” and this is a splinter group of the NRA, because of course it is.  They say, “this Court should thoroughly reject the city’s remarkable request to dismiss this case even if it’s not moot!” [Chuckles]  “Throughout this litigation, the city has shown nothing short of contempt for the notion, seemingly settled by D.C. v. Heller and McDonald v. The City of Chicago that the 2nd Amendment protects and individual right to keep and bear arms, not a mere privilege that municipal office officials may deny as they see fit.”  Again, this is all from a Supreme Court Cert Petition, mind you.  “The city has consistently taken the position that its transport ban does not even meaningfully impact the right to possess a handgun in the home for the purpose of self-defense, which is the only 2nd Amendment right that the city will even (begrudgingly) acknowledge exists.”  It goes on like this.  So this brief is the NRA speaking to the Supreme Court in a way that I would be somewhat embarrassed to speak in a public, you know, at an Opening Arguments Live show, right?  [Chuckles]  Basically cheerleading and saying, “hey look, you guys love guns, we love guns, and so even if this isn’t a live case or controversy anymore, I mean New York is pretty anti-gun let’s stick it to ‘em!”  That is a fair interpretation of this response back to the City’s request to dismiss out the Cert as being improvidently granted because there’s no more City Ordinance anymore. 

                        So Sheldon Whitehouse, along with Mazie Hirono, Richard Blumehtal, Dick Durbin, Kirsten Gillibrand, filed an amazing Amicus Brief in this case!  And the Amicus Brief says, here, I’ll quote it directly.  “The judiciary was not intended to settle hypothetical disagreements.”

Thomas:          [Chuckles]

Andrew:          “This is precisely and explicitly what Petitioners want the Court to do in this case in the wake of a multi-million dollar advertising campaign to shape this Court’s composition and an industrial strength influence campaign aimed at this Court.  Indeed, Petitioners and their allies have made perfectly clear that they seek a, quote, ‘partner’ in a, quote ‘project’ to expand the 2nd Amendment and thwart gun safety regulations, particularly in an environment in which a growing majority of Americans believes that this Court is motivated mainly by politics rather than by adherence to the law, this Court should resist Petitioner’s invitation.”  And so, citing the research that Whitehouse has done, among other things, in this Amicus Brief, essentially the argument is “hey, look, the special interest groups are out there, the conservative activists are openly cheerleading for your activist Court to issue more activist rulings from the bench and Justice Roberts, if you can be shamed, if you care about your legacy, we’re not going to pretend like this is just an ordinary case anymore.”  So the brief begins confident that a Court majority assures their success, Petitioners laid their cards on the table and here it’s quoting from their original brief, “the project this Court began in Heller and McDonald cannot end with those precedents” (end of quote).  “Petitioners, of course, identify no legal question on which the Circuit Courts of Appeal disagree, they do not suggest the Court below so far departed from the accepted and usual course of Judicial Proceedings to require this Court to exercise its supervisory power and, indeed, they do not even suggest that the withdrawn municipal regulation presents any important question of [Laughing] Federal Law-

Thomas:          [Chuckles]

Andrew:          -that should be settled by this Court!  They simply want a majority’s help with their political project.”

Thomas:          This is just some white people wanting to speak to the manager, is what it is. 

Andrew:          [Laughs]

Thomas:          It’s like even though they already were given another burger that’s fine, they’re like “I still want. To. Speak. To. The. Manager.”  “But we gave you another” – “I wanna speak to your manager.”   Is that?

Andrew:          Yeah!  Yeah!  No, that’s a great – look, what this is, this is the partnership between right-wing political activism and a re-shaped right-wing activist conservative Supreme Court and, as we have said, the game going forward in terms of Judicial Minimalism is “embarrass John Roberts.”  This brief is the best shot-

Thomas:          Ba-dum-tss (joke drum sound) Oh, alright.

Andrew:          that I can see, and I mean that from an argumentative standpoint – Right?  You know, it’s a gun case.

Thomas:          [Chuckles]

Andrew:          To try and –

Thomas:          [Laughing] To take aim at John Roberts! 

Andrew:          To say, “hey look”

Thomas:          Put him right in the sights!

Andrew:          [Laughs] Let’s not go “Sarah Palin” here!

Thomas:          Fire away.  Yeah.

Andrew:          But to say, look, if you truly are – if the institutional thesis is correct, if you truly care about the legacy of the Supreme Court you need to know that we’re going to be continuing to make this in the public eye and that we’re going to expand and draw attention and join cases and point out when political groups are seeking to use this Court as a vehicle for activism.  I’m very excited about it.

Thomas:          Okay, a couple questions.

Andrew:          Yup.

Thomas:          Where is this case right now?  So it didn’t just go away, it’s actually – I have a hard time-

Andrew:          No, no, no!  So the Ordinance was challenged, was upheld at two separate levels, and then the Supreme Court granted Cert in 2018.

Thomas:          Wow!

Andrew:          And then, I discussed the procedural history.  The State signed a bill into law that supersedes the City Ordinance.

Thomas:          Yeah.

Andrew:          There is no reason to adjudicate this Ordinance anymore.  The only reason to continue to want to have it up there is to have – ‘cuz again, remember, zero – one gun case that upheld gun restrictions from our Nation’s inception through 2005, and then Heller in 2005, McDonald in 2008, and what they’re trying to do is increase the number of gun cases coming out of the Supreme Court-

Thomas:          Yeah.

Andrew:          -because they have a gun friendly Supreme Court.  And-

Thomas:          So my second question-

Andrew:          -by the way-

Thomas:          Oh, sorry.

Andrew:          Oh I want the question, I wanna say that the Amicus Brief quotes from NRA materials with the NRA spending millions of dollars to support Brett Kavanaugh and Neil Gorsuch, right?  [Chuckles] It does not shy away from the implication that Gorsuch and Kavanaugh are pro-NRA hacks who were put on the bench.

[Commercialfree trial to Beach Body on Demand when you text “OA” to 303030]

Thomas:          Alright, my dumb question is this. 

Andrew:          [Laughs]

Thomas:          How does this relate to the Sheldon Whitehouse thing?  Like, you went right into that, and that’s just painting the broader picture for how partisan the Court is, or was there some specific tie-in?

Andrew:          No, this is Whitehouse’s Amicus Brief as well, and it specifically cites and attaches the study to the brief.

Thomas:          Oh, okay.

Andrew:          So, in other words-

Thomas:          Sorry, I thought you were just setting the scene for it.

Andrew:          Yeah.

Thomas:          I didn’t realize he actually also – okay, gotcha.

Andrew:          Yup, so this is why Sheldon Whitehouse is a better human being than I am, he didn’t just give a firebrand speech and document painstakingly the 73, 5-4 cases on political grounds that are indefensible, he then said, “hey look I’ve got this evidence and I’m going to continue to bludgeon John Roberts with this until I shame him into doing the right thing or until we lose” but either way, he’s doing something when I didn’t, so good on Sheldon Whitehouse!

Thomas:          I will not let you demean yourself in that way!  Does he have a Podcast?  No.

Andrew:          [Chuckles]

Thomas:          I don’t think.

Andrew:          There we go!  We’ll team up, so…

Thomas:          Yeah.

Andrew:          Yeah, I’m gonna include the Amicus Brief as well, even if you don’t typically read the legal pleadings we link in the show notes, because this is an atypical Amicus Brief it reads very conversationally, so you can read things like “with bare partisan majorities this Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, pollution” [Laughs]

Thomas:          Yeah, but all the right-wing ghouls on the Court and all the howler monkey contingent, or what is the term somebody else sent in a new term for that?  Was it Trump-something?  Trumpanzees?  I think they said “Trumpanzees.”

Andrew:          [Laughs]

Thomas:          I dunno, I think the right-wing howler monkey contingent goes back way before Trump, so I think that we’ll keep that, but anyway, they’re just gonna take this as a good report card.  It’s like “oh, you’re sending me a report of all the stuff I’ve done that is great, thank you Sheldon Whitehouse, I agree with all that, we did that.”

Andrew:          So, certainly, the howler monkey – because remember, I do not put John Roberts in the howler monkey contingent.  Certainly, those four are cheering it on, and certainly if something terrible happens in the next year and a half none of this will matter, but so long as John Roberts is the swing vote, so long as he is the focal point, we need to remember it is total nonsense, we continue to say this every episode, when the press reports about how “well, he’s really siding with the, not so- conservative” that’s nonsense.  He is as conservative as he feels like he can get away with.

Thomas:          Yeah.

Andrew:          But he has some sense of things beyond which-

Thomas:          I guess.

Andrew:          -he does not want to try and get away with.

Thomas:          I mean, he might not be a howler monkey but he’s a zookeeper that’s pretty cool with everything they’re doing.

Andrew:          [Laughs] Yeah, that’s exactly!

Thomas:          There they go, throwing their feces!  That’s their right in this animal kingdom!

Andrew:          Yup.  And look, right, it’s like having another monkey zookeep, right?

Thomas:          He’s just a quieter monkey. 

Andrew:          Yeah!  [Laughs] Exactly!  He’s the-

Thomas:          [Chuckles] Still in with the monkey agenda.

Andrew:          -silverback gorilla zookeeper if we’re stretching this analogy too far, which we have.

Thomas:          [Chuckles] Yes.

Andrew:          Yeah, I do not put a lot of stock in John Roberts, and I will continue to push back on the, you know, idiotic puff pieces, but I do believe that the best strategy on a macro level going forward-

Thomas:          But at least he’s one of those gorillas that can do sign language so we might be able to reach him, is what you’re saying?

Andrew:          [Laughs] Right.

Thomas:          You can’t reach the other ones, but, yeah.

Andrew:          Right.  It’s the institutional thesis, right?  And, again I’ll just summarize that.  It is the idea that John Roberts, while remaining firmly committed to conservative principles and conservative political outcomes – read his dissent in Obergefell, he is no moderate, he is no main-stream Republican, he is firmly committed to right-wing political outcomes – but he does not want his grandkids to read in their AP U.S. History textbook in 2050 that the Roberts Court was, you know, “the demise of the Supreme Court as an independent body.”  That’s what I mean by the institutional thesis.

Thomas:          But how old are these grandkids gonna be?

Andrew:          [Laughs]

Thomas:          I feel like, are they finally cracking open a textbook in their thirties?

Andrew:          [Laughing] Yeah, well… you know, whatever.

Thomas:          [Chuckles]

Andrew:          That he wants to – Look, this Court will have his name on it, right?  And so he wants to preserve at least a veneer of institutional respectability in connection with the Supreme Court and that’s the way, I think, to try and shake him loose.  Look, that’s what I predicted and what happened with respect to the Commerce Case, right?  And, as we talked about in that episode, when you dissect that case it is very, very clear to me that without the Hofeller Documents, that would not have been far enough.  He would not have been embarrassed enough without a file that was leaked that said, “how to advantage non-Hispanic whites and Republicans.”

Thomas:          Yeah.

Andrew:          So, look, this is not somebody with a lot of shame, but it is somebody who can be shamed and I want to commend Sheldon Whitehouse for trying to shame him.  So, good work!

Thomas:          Alright, well, good on you!  Start a Podcast!  No, don’t-

Andrew:          Come on this one!

Thomas:          Come on this one!

Andrew:          Yeah, we’ll absolutely have him on!

Thomas:          Alright, I think it’s time to get back to some yodeling, OG!  The Original Yodeling that is Stormy Daniels, I think that really did launch this whole endeavor, so here we go!

[Segment Intro]

Thomas:          Alright, I’ve been waiting so long!  What’s the update, what’s going on with the Stormy Daniels stuff?

Andrew:          Yeah!  This is the connection between Stormy Daniels and Hope Hicks.  So.  Let’s set a little bit of the timeline, here.  We first covered Stormy Daniels March 7th, 2018, that was episode 154.  A month later, April 8th, is when the Southern District of New York, supported by the – in the Southern District of New York, the FBI filed for a search warrant for Michael Cohen’s office, home, safe deposit box, hotel room, and two iPhones.  That search warrant application would stay sealed until July of 2019.  Now, June of 2019, June 19th, 2019, Hope Hicks testified before Congress.  As we discussed, this is episode 259, she is absolutely the key person in the Congressional investigations.  We broke down all of the letters and subpoenas that were sent out and Hope Hicks had the super set of all of them.  Every question that was asked of any of the 73 witnesses that Jerry Nadler was interested in interviewing was asked of Hope Hicks.  So she voluntarily agreed to appear before Congress subject to and accompanied by White House lawyers and under an admonition not to reveal Executive Privilege, which she doesn’t have, and at that hearing – we didn’t even cover her hearing on the show ‘cuz she lied, she wouldn’t answer questions, she’s just the worst, right?  But as we’ve described in the Yodel Mountain process, there’s so many interlocking things, a month later, July 18th, 2019 is when the Southern District of New York, taking a look at the conclusion of the Mueller Report said, “okay, well, since the Mueller Report is concluded and since the Attorney General’s office has said there are no further outstanding investigations, there’s nobody to prejudice so we’re gonna unseal these files.”  They unsealed the Cohen documents that same day, we covered that on this show, that was episode 298, and also the same day Congressmen Nadler wrote a letter to Hope Hicks, to her counsel, that said, “we just got a whole bunch of documents released in the Michael Cohen litigation that appears to be inconsistent with your testimony before the House Judiciary Committee a month ago.  As I reminded you” (this is directly quoting from the letter) “As I reminded you at the outset of your interview, anything less than complete candor can have very serious consequences,” it’s a crime.

Thomas:          Hold on, hold on, let me just make sure.  Is this a sternly worded letter?

Andrew:          This is a sternly worded letter.

Thomas:          Okay, good!  (Sarcastically)  Saved!  We’re all saved, everybody!

Andrew:          Yeah.  “I would expect you to clarify this matter before the Committee in very short order, no later than August 15th of 2019.”

Thomas:          Or else!  [Laughs]

Andrew:          Right.  So, letter goes through and says “hey, there are massive inconsistencies between the Cohen documents and your lying lies, we’ll give you to August 15th and,” (quote) “I would like to give you an opportunity to clarify your testimony on a voluntary basis prior to our considering compulsory process” (end of quote).  So August 15th has come and gone and Hope Hicks’ lawyers wrote a letter that purports to respond and address the inconsistencies.  Her lawyer is Robert P. Trout in D.C., not somebody I know.  This letter is… amazing.  It, [Laughing] I will read parts of this letter to you.  Spoiler alert!  It does not clarify [Laughs] Hope Hicks’ obviously lying testimony.  It does not address any of the major concerns raised by Congressman Nadler, except one that I’m gonna talk about that is truly mind-bendingly bizarre, that I’m kind of shocked has gone unreported in the news.  And it doubles down.  So I’m going to read, this is from page 2, this is Hope Hicks’ official position, through her lawyers, to the House Judiciary Committee.  “Hope Hicks testified truthfully to the best of her knowledge regarding Stormy Daniels and Karen McDougal, she knows precisely when and how she first learned about Karen McDougal, Ms. McDougal’s agreement with American Media and hush-money payments to Stormy Daniels (Stephanie Clifford) it was all from press inquiries.”  That’s her position.  That position, I am here to tell you, is not remotely tenable in light of the Cohen evidence and I’m gonna put everything together-

Thomas:          Hmm.

Andrew:          -so that you understand, because now, in print through her counsel, Hope Hicks has, in my view, very clearly lied to Congress.  Now, this is not an official proceeding so that is not perjury, she is not under oath, but this is unofficial statement to a sternly worded letter that was being offered in lieu of us taking you to Court.  Jerry Nadler is going to take Hope Hicks to Court and, as we discussed in episode 290, the Court will compel her to testify.  The positions she’s taking are not legally defensible.  And if she will then be asked about this in Court, and those will be sworn statements, she can either recant and say “oh well, my lawyers wrote this and they just went off the rails” or she can double-down at which point she will have perjured herself.  And, again, with all of these folks the question is when do you get them out from under the thumb of Donald Trump?  When do you have more leverage over them then the President does?  I firmly believe Stormy Daniels is about to play a key role in this again.  So let’s talk about what happened.  The Nadler letter says, “you appear to have communicated directly with Mr. Cohen and President Trump about these payments” it says “long before they were made” but actually two days before they were made.  “According to call records, on October 8th at 7:20 pm, Cohen received a call from Hicks.  16 seconds into the call, Trump joined the call and the call continued for over 4 minutes.  Ten minutes after the call ended, Hicks and Cohen spoke again for two minutes.”  So, in other words, “and then after Cohen ended the second call with you he exchanged a series of calls and text messages with Pecker,” the CEO of AMI, Mr. Howard, that’s Dylan Howard who also works for AMI, and the President.  So, in other words, Hicks calls Cohen, Trump is on the line, they get off, Cohen calls AMI and then Cohen calls Hope Hicks again.  As Congressman Nadler points out, that’s an awfully big coincidence to think that you were not talking about Stormy Daniels, particularly when Michael Cohen has said “I was talking to the President about Stormy Daniels.” [Chuckles] And this is a day and a half before Stormy Daniels signs the settlement agreement with Michael Cohen and Essential Consultants that is the basis for the hush-money payments.  So that’s what Congressman Nadler says and then you might ask yourself what’s Hope Hicks’ excuse, right?  Okay, why is she talking to Michael Cohen on the day that the Stormy Daniels news breaks if they’re not talking about Stormy Daniels?  And here all I can do, I’m gonna include a copy of the letter in the show notes and I’m going to encourage all of our listeners to read along.  This is what Hope Hicks’ lawyers say in defense:  “Although she” (Hope Hicks) “cannot recall the details of each call, she is quite certain that none of her calls that day with Mr. Cohen related to any agreement with or payments to Stormy Daniels.”  “One of the many press inquiries Ms. Hicks received following the release of the Access Hollywood videotape the day before related to a rumor of a videotape, now known to have originated with the Steele dossier, involving Mr. Trump in Moscow with Russian prostitutes.”  Okay, that’s the “pee tape,” right?  “As Ms. Hicks testified before the Judiciary Committee” … “because the website TMZ was rumored to have access to the videotape, and because she knew Mr. Cohen had a good relationship with Harvey Levin of TMZ, she contacted Mr. Cohen on October8, 2016, about the rumored videotape.”  Let’s stop that for a second.  Um, “was rumored to have access to the videotape?”  If there is – because, again, I have always been suspicious of the Steel dossier, I have been super suspicious that there is a “pee tape,” right?

Thomas:          Mm-hmm.

Andrew:          All of those allegations struck me as just not …

Thomas:          Well …

Andrew:          Yeah.

Thomas:          Not, yeah.

Andrew:          Go ahead.

Thomas:          They’re not the craziest thing in the world-

Andrew:          [Laughs]

Thomas:          -because it’s Donald Trump, but, like personally I’ve never been banking on that being true.  Like, I’ve never been like “alright, there’s definitely a pee tape” or something.

Andrew:          That’s a good way of putting it!  Right, yeah.

Thomas:          Like if I found out tomorrow there is a “pee tape” I wouldn’t be like “Ah!  I’m dying of surprise!” I’d be like, “oh, wow, okay.”

Andrew:          [Laughs] Right!  It wouldn’t be like if there was an Elizabeth Warren tape, right?

Thomas:          [Laughs]

Andrew:          That, I would be dying of surprise!

Thomas:          I would die of surprise, yeah!

Andrew:          Yeah, I would literally die of surprise from that.  Right.  And I don’t – there’s just so much actual-

Thomas:          What is our politics that this is what we have to discuss?

Andrew:          Yeah.

Thomas:          Where has this Country gone?  Anyway.

[Commercial – blueapron.com/oa for $60 off]

Andrew:          So, it seemed remote and there wasn’t a lot of evidence to it.  There’s no way to parse this sentence other than, Hope Hicks thinks that that’s a real thing.

Thomas:          Yeah.

Andrew:          Right?  And the only reason for Hope Hicks to think that that’s a real thing is because she talks to the President, and so maybe – what’s the best case scenario for the President here?  Well, you know, there was no peeing, but – I don’t even know!  But you don’t call-

Thomas:          Would it be like, Hope Hicks just assumes there’s a tape because it’s Trump?  [Laughs]

Andrew:          [Laughs]  

Thomas:          Would the best case just be, well, it’s not based on anything but just because she knows what everybody else knows, that this person is awful?

Andrew:          I suppose you could take that position.  I do not know why you would need to call the President’s fixer if there’s nothing to fix.

Thomas:          Hmm.  Good point.

Andrew:          So, then, again, this is her defense!  This is her lawyer:  “She believes that her calls with Mr. Cohen that day would have been about reaching out to Harvey Levin to see if there was more information about the rumored videotape. Whatever else Mr. Cohen was dealing with that day, his conversations with Ms. Hicks were not about Stormy Daniels or any agreement relating to ‘hush money.’”  Okay.  There is other – and I don’t have the time to go point-by-point with – I would just encourage our listeners to put side-by-side the bullet points raised in Nadler’s letter with the non-responsive, non-answers in the Hope Hicks letter, but I do want to deconstruct this point on October 8th, 2016, because I’ve read the Michael Cohen documents and they flatly contradict – you cannot read the search warrant affidavit signed by – and this part is still redacted, we don’t know the FBI operative, but this is a 269 page search warrant affidavit, I’m going to upload it to the show notes, it includes all of the exhibits, it is lightly redacted to protect certain individuals, but it’s not redacted for Trump, it is not redacted for Hicks, it’s not redacted for Michael Cohen, it’s not redacted for any ongoing matters.  Beginning at page 40 is where this flatly contradicts – and, again, this is a signed affidavit submitted under penalty of perjury by an agent of the FBI in support of a search warrant for the President’s lawyer.  Beginning on page 40 it sort of sets up, “my review of public sources that led me to confirm independently that Stormy Daniels was being shut up in October of 2016” then, page 41, “from my review of telephone toll records and information produced pursuant to a previous warrant, I have learned that in the days following the Access Hollywood video Michael Cohen exchanged a series of calls, text messages, and emails with Keith Davidson” who was then Stormy Daniels’ lawyer, that’s the patsy lawyer that-

Thomas:          Oh, yeah, I forgot about that!

Andrew:          That Cohen and AMI arranged-

Thomas:          She sure can choose ‘em, by the way!  Because it was him then it was Avenatti, ooph!

Andrew:          Well, Davidson was sort of forced on her, so-

Thomas:          Okay.

Andrew:          But anyway, so emails with Davidson, David Pecker and Dylan Howard of American Media, Inc., that’s the publisher of the National Enquirer, Trump, and Hope Hicks who was then Press Secretary for Trump’s Presidential Campaign.  We do not have all of those emails, or at least I haven’t found them yet in this gigantic trove of released documents.  I am looking through to see if Hope Hicks is directly cc’d on any of these.  So, stay posted on that.

Thomas:          Hmm.

Andrew:          But the affidavit continues, “based on the timing of these calls and the content of the text messages and emails I believe that at least some of these communications concern the need to prevent Clifford from going public particularly in the wake of the Access Hollywood story.  In particular, I have learned the following” and now, let’s match this up with what Hope Hicks has said.  So Hope Hicks has said, “yeah yeah, I talked to Cohen on October 8th, but I talked to him on that day because the Access Hollywood thing came out and I thought the Russian pee tape was gonna come out and I wanted him to contact TMZ so that we could shut up the Russian pee tape.”  Never minding why she would think that would be exculpatory, we’ll leave that for another day.  Here’s the actual timeline as supported by the actual warrant.  October 8th at 7:20 pm, this is written as “Cohen received a call from Hicks” right?  I wish it would have said “Hicks called Cohen.”  16 seconds into the call Trump joined the call and the call continued for over 4 minutes.  That’s then supported by a footnote which explains, you know, there was a little minus – how they conferenced in Donald Trump.  So Hope Hicks calls Michael Cohen and says, “get Donald Trump on the phone.”  By the way, this answer – so even if you take her statements at face value, this answers the point you were making earlier of “well maybe she was just thinking Trump was this kind of guy.”  No.  The very first thing she does is she calls Cohen and says “get Trump on the phone” and Trump’s on the phone.

Thomas:          Mm-hmm.

Andrew:          And they talk for 4 minutes.  Based on the records-

Thomas:          Which I think that’s ten seconds of “Is there a pee tape?” “Yes” and then just silence.  Like (Disgusted, exacerbated, dry-heave noises)

Andrew:          Really? 

Thomas:          Yeah, just barfing noises and –

Andrew:          [Laughs]  I would not want Heather Loveridge to have to transcribe that.

Thomas:          [Laughs]  

Andrew:          So next, based on our call records, this was the first call Cohen had received or made to Hicks in at least multiple weeks.  And, in fact, Cohen and Trump spoke about once a month prior to this date, specifically prior to this call on October 8th, Cohen and Trump had spoken once in May, once in June, once in July, zero times in August, and twice in September.  So, again, that’s really, really important for understanding the background, too.  It’s not as though Michael Cohen had – it’s not like the SNL sketches where Ben Stiller can call up-

Thomas:          [Impersonating] Oh, please Mr. Trump! Ah!

Andrew:          [Chuckles] Those are so great!  But they don’t talk every day, they talk once a month, and he talks to Hicks never, so that’s a pretty big coincidence, but let’s keep going through the affidavit.  Ten minutes after the call ended, Hicks and Cohen spoke again for about two minutes.  So, get Trump on the line, is there a pee tape, yeah there is-

Thomas:          [Laughs]  [Disgusted noises]

Andrew:          -we’ve gotta silence Stormy Daniels here, don’t we?  Yeah, do whatever you can, okay, I’m getting’ off now, then Hicks and Cohen – alright, what are we gonna do about this?  Next paragraph, “At 7:39 pm, immediately after the second call with Hicks ended, Cohen called Pecker” (President of American Media) “and they connected for 30 seconds.  Four minutes later Cohen called Pecker again and they spoke for more than a minute.  Three minutes after ending his call with Pecker, Cohen received a call from Dylan Howard, noted above, the Chief Content Officer of AMI, and they spoke for a minute.  According to toll records it does not appear that Cohen and Howard spoke regularly prior to October 8th, 2016, it had been over a month since they had called each other.”  Okay.  Then, as soon as that ends, a few minute later, “7:56 pm, Cohen calls Hicks and they talk for two minutes.  At the same time this call ended, Cohen receives a call from Pecker, they spoke for two minutes.  At 8:03 pm, three minutes after ending his call with Pecker, Cohen calls Trump and they speak for 8 minutes.”  So we can just stop there.  There’s a little bit more that I wanna get through, but it is not – and, again, remember when you are talking about proving perjury you are talking about proving the existence of a fact that exists in someone’s head, right?

Thomas:          Yeah.

Andrew:          So you’re always going about this through circumstantial evidence.  Is it possible that Hicks called to talk about the Russian “pee tape” and then as soon as they were done he was like, “oh right, great, gonna go now I’m gonna talk to David Pecker from AMI on a totally unrelated matter”

Thomas:          Yeah.

Andrew:          “Then I’m gonna hang up, call you again, talk to you again, then I’m gonna hang up, call Pecker again, then I’m gonna hang up, then Pecker’s associate’s gonna call me, then we’re gonna talk again.”  I guess?  You’re free to draw that inference.

Thomas:          It’s all of – and they were just talking about the latest season of Game of Thrones.

Andrew:          Right.

Thomas:          That’s all it was, they had all just watched it and they called each other at that time. 

Andrew:          Further evidence that Michael Cohen is not dealing with the pee tape or TMZ or anybody else, right?  Because, again, this timeline also consumes all of Michael Cohen’s phone time.  These are the people that he’s talking to on the evening of October 8th.  So, 8:39 and 8:57 pm, Cohen receives more calls from Howard, five minutes each.  9:13, ten minutes after he hangs up from the second of these calls, Howard sends Cohen a text message that says “Keith will do it, let’s reconvene tomorrow.”  And then this is the FBI agent: “based on my involvement in this investigation I believe that when Howard wrote ‘Keith’ he was referring to Keith Davidson, the attorney for Stephanie Clifford” (Stormy Daniels).  So, again, all of the communications going to Cohen this time are about, or are from AMI about Stormy Daniels.  At 3:30 in the morning, now on October 9th, 2019, Cohen sent Howard a text message in response that said “thank you.”  [Laughs]  Eight minutes later Cohen sent Howard a text message that said, “Resolution Consultants, LLC” I love that he couldn’t remember the name of his own fake entity.

Thomas:          [Laughs]  

Andrew:          It’s Essential Consultants, LLC.  Anyway, “Resolution Consultants, LLC is the name of the entity I formed a week ago, whenever you wake please call my cell.”  So then the next day, October 10th, 11:00 in the morning, Howard sends a text message to Cohen and Davidson which says “Keith/Michael, connecting you both in regards to that business opportunity.” 

Thomas:          [Chuckles]

Andrew:          That’s pretty gross.  “Spoke to the client this AM and they’re confirmed to proceed with the opportunity.  Thanks Dylan, over to you two.”  And then at 12:30 in the afternoon, Davidson sends Michael Cohen a text message that says “Michael, if we’re ever gonna close this deal in my opinion it needs to be today, -Keith” and in fact, that deal was signed on October 10th, 2016.  That is when they signed the (quote) “Side Letter Agreement” that contained the confidential settlement agreement and mutual release between Peggy Peterson and David Dennison.  Oh, and as a slight sidebar there, the FBI agent here correctly refers to the Stormy Daniels, Peggy Peterson David Dennison agreement as a settlement agreement!  And not as a nondisclosure agreement.  So, I dunno if the FBI listens to the show, I would really love to think that.

Thomas:          Maybe other people just know law stuff?

Andrew:          Maybe they do, that would be nice!

Thomas:          Did ya ever consider… No, they probably listen!

Andrew:          I would, that’s obviously the most parsimonious explanation.

Thomas:          Yeah.

Andrew:          So it is not credible, and this letter is not credible, that – no, I just happened, I am named in emails, I am listed as participating in resolving this process, but no, nobody absolutely on October 8th when Michael Cohen’s hair is on fire and he is staying up until 3:30 in the morning trying, in a panic – it’s not hard to imagine what’s going through Michael Cohen’s mind, right?  The Access Hollywood tape is out, all of a sudden Stormy Daniels is gonna break, how do I shut that up?  I’m up for 20 consecutive hours, I finally think I’ve reached some kind of agreement and I’ve talked to Hope Hicks four times over this time frame, but, definitely, oh no!  We talked about a totally unrelated-

Thomas:          “Can you believe Ned Stark died?”

Andrew:          [Laughs]  Right!

Thomas:          That’s what we’re talking about.

Andrew:          That is an almost impossible position to have to argue in a Court of Law and that’s where this is headed.  Hope Hicks’ lawyer has doubled down and said “nope,” I read you that on page 2, “she learned about Stormy Daniels from press inquiries.”  That, as far as I can tell, all of the evidence suggests that that is 100 percent a false statement, and she’s headed back to Court.  And I can’t wait to see what happens, I continue to believe that the key at the whole of all of this is gonna be Stormy Daniels, so there you go!

Thomas:          But, okay, bottom line it, dumb it down for me here, what’s the best that can happen?  She just says “okay, actually I did know something” and then what?

Andrew:          And then she can be held in contempt of Congress for lying to Congress, she can be charged with perjury, there’s a ton of leverage that Congress will have over Hope Hicks as a result of her having had her lawyers draft this letter that is-

Thomas:          That was obviously a lie.

Andrew:          Very obviously-

Thomas:          But can this get back to Trump, or are we just punishing – are we just getting the people at the fringes here?

Andrew:          Right, well that goes back to where I led off this segment, which is Hope Hicks got the most extensive subpoena.  Hope Hicks, as far as Jerry Nadler is concerned, knows where the bodies are buried.  So, yeah, I believe it can go back to Trump.

Thomas:          Alright.

Andrew:          And, look, we know from the Cohen affidavit here that she was on the ground floor of all of these decisions, so, yeah, I think it’s very, very significant.

Thomas:          She knows where the “pee tapes” are buried, okay.  Alright, well that’s Stormy Daniels!  That’s the update we were all waiting for.  I for one, I feel satisfied, that gives me some hope, a little bit of optimism here!

Andrew:          Good!

Thomas:          Out of this Autobot, we’ll have to see!  When can we expect – what’s the length of time the sternly worded letter process is gonna take in this case?

Andrew:          There will be a lawsuit filed compelling Hope Hicks to testify to resume her testimony before the House Judiciary Committee.

Thomas:          Ya know-

Andrew:          As soon as that is filed we’ll report on it.

Thomas:          We’re obviously at the end of the episode, but I’m just thinking about it.  Why hasn’t there been any sort of hearing or testimony or anything in what feels like a month?  Can’t we get going on this?

Andrew:          Right, because – no, seriously, it’s because they’re on summer vacation.

Thomas:          Oh.

Andrew:          I know that sounds ridiculous, but remember that these folks, particularly in the House of Representatives, they’ve gotta be re-elected every two years.

Thomas:          Yeah.

Andrew:          And so the point of the summer break, it was the leverage that, you know, Republicans had in the Senate cramming through Trump’s judicial nominees is that 8 of the Democratic members of the Senate are on the Presidential campaign trail.  These times are the times in which political officials do political stuff.

Thomas:          Hmm.

Andrew:          And that’s – we can expect them to do that.

Thomas:          That’s fine!  It’s not like the state of our Country’s at stake or anything.

Andrew:          I get it!  Look, like-

Thomas:          Take your vacation.

Andrew:          -it’s why I said it that way-

Thomas:          No, yeah I’m not-

Andrew:          -because the argument of “hey, maybe don’t go to the beach while our country is on fire” is a fair argument.

Thomas:          Yeah.

Andrew:          But, again, ya gotta get re-elected and-

Thomas:          Hey, you know what would be a good re-election ad?  Grilling some Trump crony.

Andrew:          That’s true, that’s a really.  I dunno, Negatron wins again, I have no answer.

Thomas:          Yeah, let’s get on it Democrats!  Come on!  Okay, well, that’s all the time we have, we’ve got to thank our new patrons over at patreon.com/law!

[Patron shout outs]

Thomas:          So it’s time for another iteration of Thomas Loses the Bar Exam, here we go, how’d I do?

[Segment Intro]

Andrew:          Do you want the answer first or you want the analysis first?

Thomas:          I don’t care.

Andrew:          [Laughs]  Okay.

Thomas:          Just get through it.

Andrew:          This is the continuing pattern, you analyzed the question 100% correctly, narrowed it down to the two right choices, and then picked the wrong one.

Thomas:          Alright!

Andrew:          So you lost.  But you lost for awfully good reasons, and let’s kind of go through that.  I love – seriously, I was pumping my fist here thinking you were gonna get it right that you – short question and you were like, “well what’s the deal with the banana peel being fresh and unblemished?”

Thomas:          Yeah.

Andrew:          “I guess that means that it’s just only been on the floor like a few seconds, right?  It’s not all stomped all over.”  It was, indeed, the key fact here.  So let’s kinda breakdown what the potential answers are.  You immediately eliminated A) No, because the customer has an obligation to watch where he stepped.  That’s true, that that’s a very, very good elimination because, you know, hypothetically I guess that could be an issue of comparative negligence but this is just a basic torts question, do we get to go to the jury?  And, you know, “they might have an affirmative defense” is not a reason you don’t get to go to a jury, that was the worst answer, you got rid of that immediately.  You also got rid of “Yes, because the store could foresee that a customer might slip on a banana peel.”  Which, again, good elimination because under a negligence standard just being able to foresee a consequence is not sufficient, that’s not what a plaintiff has to prove, to prove negligence a plaintiff has to prove not only that the defendant could have foreseen the consequences but that the defendant failed to act with the appropriate standard of care.  So then that’s the key question.  When the banana peel is on the floor is that a violation of the duty of care or not?  Is there some reason why it wouldn’t matter?  And so C, for example, would say (your choice) says yes, it’s more likely than not that the peel came from a banana offered for sale by the grocer, and you correctly identified this one too!  You were like, “oh, so that’s like a theory” and you almost said “a theory of products liability.”  Right?

Thomas:          Yeah.  That’s what I was thinking.

Andrew:          Yeah, it’s their product.  Products liability is strict liability.  You do not have to prove negligence, you do not have to prove breach of a duty of care.

Thomas:          Yup.

Andrew:          You just have to prove-

Thomas:          That’s what I was thinking!

Andrew:          -they made the product that injured you.

Thomas:          But I guess it’s not that, yeah.

Andrew:          It’s not because there’s nothing wrong with the product here, right? 

Thomas:          Yeah, yeah, yeah.

Andrew:          It’s not like it was a defective banana. [Chuckles]

Thomas:          [Laughs]  

Andrew:          If it were that would be a really interesting question.

Thomas:          Dangit!  I got one of these peely bananas!  They’re supposed to-

Andrew:          [Laughs] Right!  The banana worked exactly the way the banana was supposed to work, right?

Thomas:          [Laughs] Yeah. Alright.

Andrew:          Three grooves on the outside, two on the inside, perfectly fit for the human hand – sorry, I’m slipping into Ray Comfort!

Thomas:          [Laughs]  

Andrew:          So the fact that the banana was offered for sale is not sufficient, then the question is, it only leaves B so you know that’s the right answer, the reason why it is ordinary negligence and not res ipsa loquitur, “the thing speaks for itself” which we’ve talked about before, where just showing that there’s a banana peel is enough, has to do with the condition of the banana peel, right?

Thomas:          Mm-hmm.  (Affirmative)

Andrew:          The fact that it’s a pristine, fresh, and unblemished banana peel means that it wasn’t on the floor for a long period of time, so there is not enough evidence to suggest, just from that fact, that that would be negligent by the store.  Imagine you have a prankster who put the banana peel on the floor and then the plaintiff slips on it, right?

Thomas:          Yeah.

Andrew:          If the plaintiff – if the defendant uses a reasonable standard of care to keep the floor free of banana peels and somebody else surreptitiously does a “Mario Kart” kind of thing, right?

Thomas:          That would be something that would come out in the trial in front of the jury, I would think.

Andrew:          [Laughs]  But it says, “these are the only facts in evidence,” right?

Thomas:          Yeah.

Andrew:          So, we’ve had our trial and now-

Thomas:          So now you go to – so wait, you have a trial first before the jury and then it would be another trial?  I guess I don’t understand.

Andrew:          No no no no no no no!  The question is – so maybe this is a lack of understanding in the question-

Thomas:          Yeah.

Andrew:          -this is a Motion for a Directed Verdict at the conclusion of the trial.  So all of this evidence – I guess you could interpret it as coming out in Discovery-

Thomas:          Oh.

Andrew:          -but I interpret it as, “you’ve had the trial, the Plaintiff puts on these two pieces of evidence, and then at the end you say, okay” as the defense attorney you always do this in a case at the close of the Plaintiff’s case in chief, it’s almost never granted, you move for a Directed Verdict.  You move to say “okay, even if all that’s true there’s not enough legally speaking to send this to the jury.”

Thomas:          Hmm.

Andrew:          We wanna take this away from the jury because they could find in favor of the Plaintiff, but the only way they could do that would be-

Thomas:          Yeah, I think in my mind I was thinking it was Discovery-

Andrew:          Hmm.

Thomas:          -but I see what you’re saying now, yeah.  Okay.

Andrew:          Yeah.

Thomas:          Well, alright, another question wrong.

Andrew:          But assume it doesn’t, assume that this is a summary judgment motion, a pre-trial summary judgment motion where, at most, to get “these are the only facts in evidence” you would have to have something like a witness saying, “well all I can testify is that there was a banana peel there” you know what I mean?

Thomas:          Mm-hmm.  (Affirmative)

Andrew:          Because now we’re outside of the realm of actual practicing law here while we’re hypothesizing, but if those are the only facts then you don’t have enough, legally speaking, to constitute negligence no matter how the jury weighs the evidence.  So that’s why it’s B, I was – you broke it down, you analyzed it correctly, you spotted the products liability-

Thomas:          Yeah, that’s my shtick!

Andrew:          You know, yeah.

Thomas:          That’s what I do!  I get it almost right until the very end, then I get it wrong.  You know, there’s a certain skill that that takes.  Alright, well… [Sighs] as long as I’m above 50 [Laughs] I won’t be for long.

Andrew:          You are, you are at 53.9%.

Thomas:          Yes.

Andrew:          76 for 141, but-

Thomas:          [Sighs]

Andrew:          -you know, we’ll get – you’ll get back-

Thomas:          Who knows?  Maybe I’ll get back on that horse!

Andrew:          -back on the winning side again!

Thomas:          Alright, well, why doesn’t future Andrew hop in that, well, current Andrew can hop in that time machine, become future Andrew, and tell us who this week’s big winner is!

[Segment Intro]

Andrew:          So, Thomas, this week’s winner is Leo G. on twitter, that’s @captcrax who writes, “Answer B. We probably don’t want it to go to a jury unless the plaintiff has at least made some argument establishing *each* element of the tort. Was there a breach of the duty of care? What *is* the duty of care owed by the grocer? If the lawyer couldn’t be bothered to enter into evidence a clipping from JAFSI (the Journal of the American Fruit Safety Institute) to establish appropriate duty of care, the judge should dismiss the case.”  Now, I should point out, Leo G. cheated here a little bit by spreading this out over two Twitter posts, we probably won’t accept that in the future, but this was such a good, concise, pithy explanation of the proper answer; it’s better than the one I just gave you, so I couldn’t help it, had to award Leo G. the win this week!  But don’t go thinking you can get us like Seth Abramson style, 97 Tweets all in a row, that’s not gonna work, but just this once Leo is the winner, and everyone should give him a follow, that is @captcrax, “Captain Crax,” I suppose, on Twitter.  Congratulations for being this week’s winner!

[Segment Outro]

Thomas:          Well thanks so much for listening, thanks most of all to our patrons at patreon.com/law for making this show happen and enjoying all the bonus goodies and we will see you for a Rapid Response Friday!

Andrew:          See you then!

[Show Closing]

OA309: Can Stormy Daniels Bring Down Hope Hicks?

Today’s episode is one you’ve requested for a while now: revisiting perhaps America’s greatest legal mind, Stormy Daniels. This time, we’ll learn how the Stormy saga has gotten Hope Hicks to (almost certainly) have her lawyers lie to Congress… and we’ll figure out what that means for the future.

First, though, we take a look at some impressive research on the Roberts Court that was put together by Rhode Island Sen. Sheldon Whitehouse — hi, Sen. Whitehouse! We know you’re listening! — and the amicus brief it inspired. You know just how bad this Supreme Court is… but only Sen. Whitehouse has quantified it for you. And yes, that makes it much, much worse.

After that, it’s time for the main segment, in which we head back to Yodel Mountain to examine Hope Hicks’s transparently false statements to Congress. How can we prove they’re false? It’s all thanks to Stormy Daniels, of course! Andrew wades through hundreds of pages of affidavit testimony in connection with the Michael Cohen search warrants to prove that Hicks’s claim that she didn’t know anything about the hush money paid to Stormy Daniels definitely does not hold water.

Then, it’s time for the conclusion to the fabulous Banana Law #T3BE! Did Thomas get it right? Listen and find out!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. You should definitely read the comprehensive Supreme Court report prepared by Sen. Whitehouse for the ACS, and also read the amicus brief he (and others) filed in the New York State Rifle & Pistol Ass’n v. New York case.
  2. As everyone knows, we first broke the Stormy Daniels story in Episode 154, “Stormy Daniels is a Legal Genius.” And she still is!
  3. Then, we told you that Hope Hicks is the key to all of this in Episode 259 when we examined the Congressional investigations. We predicted that she will be compelled to testify in Episode 290.
  4. We covered the release of the Cohen documents in Episode 298.
  5. Finally, click here to read Rep. Nadler’s letter to Hope Hicks, and here to read her (non-truthful) reply.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





Download Link

Transcript of Episode 308 – Faithless Electors

OPENING ARGUMENTS EPISODE # 308

Faithless Electors

[Show Introduction]

Thomas:          Hello and welcome to Opening Arguments, this is episode 308!  I’m your host Thomas Smith, that over there is Andrew Torrez!  How are you doin’, Andrew?

Andrew:          I’m doing fantastic, Thomas!  I am slightly more self-conscious now that I know each and every word I say to you is about to be transcribed.

Thomas:          Oh, yeah!

Andrew:          But, no, I’m super excited, how ‘bout you?

Thomas:          [Laughing] I was I was just instantly thinking of how to prank our transcriber, but then I realized that ultimately that probably gets back to us somehow.

Andrew:          [Laughs]

Thomas:          What’s that villain we always use, Mr. Mxyzptlk or whatever?

Andrew:          [Laughing]

Thomas:          What’s that guy?  How’s Mr. Mxyzptlk doing?

Andrew:          [Laughing]

Thomas:          Mr. Mxyzptlk, Mr. Mxyptlk [Laughing]

Andrew:          Way to get things started on the right foot.

Thomas:          In other news, we are looking for a new transcription service.

Andrew:          [Laughing]

Thomas:          This just in.  Mr. Mxyptlk was the one who did it! [Laughing]

Andrew:          [Laughs]

Thomas:          Heather’s gonna murder me. 

Andrew:          No, serious thank you to Heather Loveridge who has contributed to the OA Wiki in the past and who we have hired to transcribe episodes.  This is something I’ve really wanted-

Thomas:          I think she’s doing a supercalifragilisticexpialidocious job!

Andrew:          [Laughing]

Thomas:          I gotta say, I think she is!

Andrew:          Just remember, Heather, I’m sticking up for you here!  No, this is something I’ve wanted to do for a really, really long time, my cousin is almost entirely deaf so there’s obviously the accessibility goal in terms of being able to reach folks who can’t listen to the show and, you know, look, we’re always trying to balance that bringing you more and more content with folks- not everybody has a 97-minute commute everyday so I’m really, really excited and I think that this is the beginning of, hopefully, some great ways of continuing to reach out and spread OA to everybody who’s not listening to us yet, or not reading us yet, which- what’s wrong with you people?  Get out there, share the show!

Thomas:          Alright, I’m excited too!  Sorry, Heather you can feel free to add a [Clownhorn] or two to the invoice, there.  [Laughing]  Do we have another update from you?

Andrew:          Yeah, a couple more things!  I want to link in the show notes – we don’t have time to break it down, it’s just an interview anyway – but the world’s foremost U.S. Constitutional law expert Laurence Tribe is now firmly on the side of Optimist Prime!  He gave a really interesting interview in the Raw Story in which he describes what he thinks is going to be the inflection point at Yodel Mountain.  He thinks that if the courts move quickly enough so that by this fall formal Whitehouse counsel Don McGhan will have testified to the fact that Donald Trump ordered him to fire Mueller and then ordered him to lie about it, people will wake up to this crisis.  [Chuckles] That’s – I hope.  So add another Optimist to the ranks!

Thomas:          Oh, I see, since you lost so badly last week you’re just trying to-

Andrew:          [Laughs] Yeah.

Thomas:          Gotcha, okay, fair enough, yeah that’s fine!

Andrew:          I’m petitioning for a recount and I’ve hired Laurence Tribe as my attorney.

Thomas:          [Laughs] Well, that’s a strong move!

Andrew:          Yeah!

Thomas:          That may be what does it!

Andrew:          I could do worse!

Thomas:          Awesome!

Andrew:          And then one more, I’m really, really excited about this.  Look, we even have a recurring Patreon name that says “you need to talk about Stormy Daniels again.”

Thomas:          Yeah.

Andrew:          Next week, we’re gonna talk about Stormy Daniels again.

Thomas:          ‘Bout time!

Andrew:          Because there’s another key piece in all of this that relates to Stormy Daniels.  Stay tuned for that.

Thomas:          Oh, so we’re gonna get some news?  It’s not just like “here’s this old thing that should have been impeachable that should have happened” there’s more?  There’s an update?

Andrew:          No, brand new news-

Thomas:          Ooh!

Andrew:          -that still relates to Stormy Daniels, you won’t wanna miss it.

Thomas:          Well, you don’t want to miss Tuesday’s episode, I’m excited for that, I can’t wait!  I get to hear it before you guys, that’s cool! [Laughs] But you all will enjoy Tuesday!

Andrew:          Me too!

Thomas:          [Laughing] Wow, lots of privilege we have here!  Alright, let’s get to our episode.  Wow, lots to cover, this is an ambitious one!  I see everything on the whiteboard here, Andrew, and I think this could be a 90, 100 minute episode.  We’ll see, we’ll see how it goes!

Andrew:          I wanna take the under!

Thomas:          Oh, okay!

Andrew:          You’re saying 90 to 100 minutes and on Price Is Right rules-

Thomas:          That commute just-

Andrew:          I’m gonna go with $1.00.

Thomas:          That commute just keeps getting longer, people are just driving around in circles.  “When is this OA episode gonna be over?”

Andrew:          [Laughing] OA, the good we’re doing for humanity in educating is offset by our carbon footprint!  [Laughs]

Thomas:          By our carbon emissions?  Yeah! [Laughs]

[Segment Intro]

Thomas:          Alright, well, we’ve got a lot on the apportionment episode that we did, that was really, really scary and you shouldn’t have done it ‘cuz now – you put it out in the world and the bad people will capitalize on it.  But that’s okay, we had to do it, someone else was gonna figure it out.  Lots of follow-up questions on that.  Michael on Twitter asks “If the Democrats control the House, have 50 votes, win the Presidency and do away with the filibuster can they legislate their way out of this problem?”

Andrew:          And the answer to that is no.  No, they can’t.

Thomas:          Didn’t you say the date was like the day before inauguration?

Andrew:          Yup, so the transmittal occurs when the House of Representatives, when the 117th House convenes, that will be January 3rd and the new President will not be inaugurated until January 20th, so no. 

Thomas:          There’s no undo?  There’s no takes-backsies?

Andrew:          There’s no undo, yeah.

Thomas:          What about – ‘cuz you were saying that states could maybe make a law that gives time, you know?  Like a review period?  So there’s no Federal equivalent that could be done?

Andrew:          So, right.  There’s no Federal equivalent and I think some of the follow-up questions may touch on that.

Thomas:          Oh, okay.

Andrew:          But the first one, just in terms of if we win big in 2020 does that make this problem go away?  It does not.

Thomas:          Wow.  Okay, so we’ll keep going here.  Ian on Twitter asks, “Could a Democratically-controlled House refuse or delay accepting the census data?”

Andrew:          And the answer to that is also no, and this comes – now we’re gonna kind of delve a little bit more deeply into both the language of 2 U.S.C. § 2a and also Franklin v. Massachusetts, that’s the statute and the case, respectively, that we discussed last episode.  Under Franklin the right attaches when the President transmits the statement, right?  So, here’s the specific language, it says, “In this case the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President’s statement to Congress, not the Secretary’s report to the President,” so as soon as the President transmits it to Congress, that’s when the rights potentially attach at the State level.  Then the question is, could the Democratically controlled House just, you know, delay in terms of accepting the statement?  That’s subsection “b” and subsection “b” says “It shall be the duty of the Clerk of the House of Representatives within fifteen calendar days after the receipt of such statement to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section.”  And, again, do the math, three plus fifteen still gets you to January 18th, it does not get you to a new President.  And then the section specifically says, “In the case of a vacancy in the office of Clerk, or of his absence or inability to discharge this duty, then such duty shall devolve upon the Sergeant at Arms of the House of Representatives.”  So, in other words, Congress very clearly in legislating 2 U.S.C. § 2a contemplated potential delay and said, “no, no, this is it.”

Thomas:          Alright, well we have yet another follow-up for you, Andrew.  Jordan Kahn on Twitter, also – Twitter really went nuts with this one, I guess.

Andrew:          [Laughs]

Thomas:          Sounds like.  That’s good.  Jordan asks, once again [Laughs]

Andrew:          Right, right.

Thomas:          These are all premised on, I guess we all realize that if the Democrats-

Andrew:          Notice this predicate, yeah.

Thomas:          -don’t take the Presidency and the Senate then we’re just going home?  So, once again, “if the Democrats retake the Whitehouse and the Senate, could they amend 2 U.S.C. § 2 after Warren takes office to correct the apportionment?”

Andrew:          Yeah, and this?  I really liked this question because this is Jordan kind of digging into the substance of 2 U.S.C. § 2a subsection “b,” but the answer’s still no.  What Jordan is reading is, that subsection “b” says, “Each State shall be entitled, in the Eighty-third Congress and in each Congress thereafter until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in the statement as required by subsection (a).”  So Jordan read that and said, well it says “subsequent statute,” couldn’t we just pass a subsequent statute and correct it?  The problem is that “subsequent statute” modifies reapportionment.  So in other words, Democrats could absolutely amend or change a new equivalent to replace 2 U.S.C. § 2a but that would apply prospectively to the next census, to the next apportionment in 2030.

Thomas:          Yeah.

Andrew:          It wouldn’t apply retroactively.  So, I get that it says “you can have another statute” but that “have another statute” wouldn’t displace the rights that begin to inhere as soon as that statement is transmitted.

Thomas:          Well this… sucks. [Laughs] So far I’m getting a strong “no” from every “one weird trick” to fix this problem.

Andrew:          Yup!

Thomas:          I guess we’ll try one more time.  We’ll try one more time with another follow-up.  Nick Bogos via email asks- that’s so sophisticated with email instead of Twitter!

Andrew:          Right? [Laughs]

Thomas:          [Laughs] “Could a Democratically controlled House simply refuse to convene until after newly inaugurated President Warren withdraws an apportionment report Trump tries to submit?”  Wow!  That’s – I struggled with that one because I started thinking about it as I was saying it, and that sounds genius!  Is that one weird trick that could work?

Andrew:          It sounds genius, but the answer’s still gonna be no.

Thomas:          Dangit!

Andrew:          Yup, there are two checks here that will come into play.  The first is the 20th Amendment to the Constitution, which amends Article 1 Section 4 which says “Congress shall assemble at least once in every year and such meeting shall be on the 3rd of January unless they shall, by law, appoint a different day.” So, that’s kind of your first check, and, again, in the age of Trump-

Thomas:          Can they by law appoint a different day?!

Andrew:          Well, it would have to be a law, right?

Thomas:          But they could pass it now for – and then not meet until-

Andrew:          Yeah, they could pass it now but then-

Thomas:          Oh!

Andrew:          Trump would veto.

Thomas:          Oh, yeah true.  Ugh.

Andrew:          It’s gotta be a law, right?

Thomas:          Yeah.

Andrew:          So, that’s the first one.  You might say-

Thomas:          I was thinking it was like a House rule or something.

Andrew:          Right, yeah, it’s not a House rule, it must be by law.  Then the second check, even if you could get around – let’s say, okay, you assume (probably fancifully) that the Supreme Court would not issue a Writ of Mandamus or otherwise require the House to convene, that seems to place an awful lot of trust in Chief Justice John Roberts, but hey, maybe you have that.  So, assume that you think you get over that check, then you would have the problem that Article 2 of the Constitution gives the President the power to convene a session of Congress, quote, “in an emergency,” end of quote.  And there is a 70-year old – 72-year old Office of Legal Counsel memo, 1 O.L.C. 140 that Nick sent to us, I wanna give him credit for this, he said, “hey would this apply?” and it absolutely would apply.  In other words, if this were to happen then Bill Barr would advise Donald Trump to just convene a session of Congress and I believe that that session that he would convene would then be recognized by the Supreme Court as a valid exercise of the President’s Article 2 powers to summon congress.  That’s never – sorry, I should not say it’s never happened – the last time that the President convened an emergency session of Congress was Harry Truman in 1948.

Thomas:          Huh.

Andrew:          But, that’s – so those two things are out there, and the way that I put all of this together – and, again, I don’t wanna lead off this section by saying “there’s nothing we can do about apportionment and we’re going to live in an undemocratic Russian puppet state for the rest of our lives,” that’s not what I’m trying to say.  What I’m trying to say is that this will be tied up in litigation in 2021, that I don’t see a way prospectively at the Federal level that we can stop it.  What we can do is have grassroots activism at the State level, right?  Because every predicate answer that I gave to these questions depended upon the fact that the Federal government couldn’t do a thing because the rights to the States attach at the point at which the President transmits the apportionment letter to the House of Representatives.  A State does not have to act on those rights.  A State could very, very well say, “hey, in the interest of prudence, rather than race forward in the next three minutes we’re just gonna wait for the new President to come in and confirm and make sure everything is okay.”

Thomas:          But if that happens on State-by-State basis how would that even be practical?  ‘Cuz if-

Andrew:          Yeah, again, I don’t know because we’re in uncharted territory.

Thomas:          Here, let me finish the question just in case everybody else is not-

Andrew:          I’m sorry.

Thomas:          No, it’s alright!

Andrew:          I didn’t mean to interrupt!

Thomas:          Yeah, I’m tired of you interrupting! [Laughs]  No, I just want to make sure so people know what I think we’re both thinking, or maybe you’ll tell me this is stupid, but assuming the census is figuring out, and apportionment is figuring out how many seats we’re all gonna have, obviously that’s kind of dependent on the whole.  You can’t just be like, “well, uh, California you figure out your seats and then these other States, they’ll figure out their seats.”  The sum total does matter, right?  You can’t just have any State willy-nilly not going along with the whole plan, so how would that work?

Andrew:          And the answer – and that was exactly what I was thinking, and I’m sorry [Laughs] I honestly didn’t mean to cut you off!

Thomas:          No, no! [Laughs]  Just wanted to give Heather more work, that’s all.  Mr. Mxyzptlk.

Andrew:          The answer there is that those elections won’t take place until 2022, right?  So even at the glacial pace at which the U.S. Court system moves it’s – I would be very, very comfortable going in to a Federal Court and saying, “hey, look, okay, we’ve gotta figure this out and it’s going to be confusing, but at least we have time to figure this out.” 

Thomas:          Well, but-

Andrew:          We don’t have an election tomorrow.

Thomas:          Maybe I’m not understanding, ‘cuz it seems to me that it’s either one way or the other, right?  If you’re going to do – if Trump and his cronies, or more like Bill Barr and his cronies Trump, I guess – the people who actually figure stuff out, ‘cuz he can’t-

Andrew:          Right.

Thomas:          If they decide, here’s what we’re doing, we’re taking all these seats from California and other blue states because it looks like the wiggle room within this apportionment thingy lets us do this scheme, so here’s what we’re doing, you hand the report, you’re on your way out of the office but you hand that report, bam, it’s binding!  I don’t get how – you’re saying there’s nothing we can do and despite all of our Twitter and emailers best efforts there’s nothing we can do to save our Democracy, but then if a State says “no” then somehow that’ll be okay?  Then who makes the decision on which methodology?  Because it seems like what we’re gonna argue about is a methodology for how many seats everybody gets, right?

Andrew:          So, yes.  So here’s the answer to that question – it’s a really really really good question.  If the States do nothing then the standard that the Supreme Court is going to use – so let’s see how this is gonna play out, right?  What’s gonna play out is there’s an apportionment letter, it’s going to transfer 5 seats from California to Alabama, and then what will happen is the State of California, its Attorney General, voters in the State of California, will file a Federal lawsuit seeking to invalidate that transfer, and that will be adjudicated under the exact same standards as Franklin v. Massachusetts.  That’s what Massachusetts did after the 1990 census, they said “look, we lost an electoral vote, it’s gonna take away a Congressional district,” they did it for this pretextual reason of trying to give votes to soldiers overseas but they really knew it was gonna take away a vote from, you know, a reliably Democratic State and “we want that vote and we want that district back,” and what the Supreme Court said there was “okay, you have a cognizable claim if the President acts in transmitting the apportionment letter to Congress in a way that violates the Constitution.”

Thomas:          Hmm.

Andrew:          Now, they don’t go exactly through what that is, right?  But we talked about that in broad strokes last episode, right?  Giving 384 Congressional districts to the State of Alabama would obviously trigger, you know, an equal protection violation, even in this Supreme Court.  But it’s crucial to realize that the standard that was applied to the Department of Commerce in the census case was not proving that there’s a Constitutional right, but was in fact a much lower standard of “was this adequately supported by the evidence?  Was there an articulable reason that was given?” and the narrow victory [Laughs] right?  Remember that was a 5-4 even with the Hofeller evidence, the narrow victory we got was not that it’s inappropriate for Commerce to want to know if people are citizens or not, but rather that the answer that they were giving in public seemed to be pretextual and by “seemed to be pretextual” we mean we had overwhelming evidence that it was pretextual.  And the standard is going to be higher than that for proving a Constitutional rights violation, so what I’m trying to do now in terms of spreading this out and getting awareness is to do two things: number one, to tee up for that Supreme Court fight so that we have as much in the record as possible to try and demonstrate that using an apportionment method based on citizenship is a Constitutional rights violation.  That’s gonna be hard.  And then number two, the question is, is there anything we can do to stave off that court fight or otherwise put it in a better position?  And most of the questions that we got that suggested “well hey, maybe there won’t be a court fight if we do X?” I think the answer to that is no.  I mean, you heard that.  I do think the most fruitful area is if you can somehow delay all of the states receiving all of the data, then the scenario you described comes into play, which is there’s no way for Alabama to say “yup, we recognize that we have extra representatives and they come from California” and then three weeks later for California to be like, “okay, well the revised tally came out and we recognize that we didn’t lose any seats.”  You can’t hold those two positions simultaneously, again, that’s gonna go to the Supreme Court, but that adjudication-

Thomas:          Okay, so we just need a State, at least one State to complain about this so the Supreme Court has to decide it, but it’s not like States can just fix it on their own or anything, or “opt out” of the [Laughs]-

Andrew:          Correct, yeah!  That’s right, that’s right.  But, look, the question is on what grounds and with what supporting evidence will a very right-wing Supreme Court take up this case? 

Thomas:          Yeah.

Andrew:          And that’s-

Thomas:          I dunno, it all depends on how far they go, I guess.

Andrew:          That’s exactly right!  And so, you know, maybe I shouldn’t say the truly evil plan out loud, right? [Laughs]

Thomas:          Yeah.  That’s why I was saying, we’d almost be saved if they try to be too evil because it’ll actually be unconstitutional.

Andrew:          Yeah.

Thomas:          But, we’re kinda out of luck.

Andrew:          Because, again, right, that will trigger the “shame John Roberts” right?

Thomas:          Yeah.  [Sighs]  Alright, well on that depressing note I think we all put our heads together and still couldn’t find a way around this mess that Andrew got is into so we’re screwed! [Chuckles]  Some Optimist Prime he is!

[Commercial – netsuite.com/oa for a free guide “Seven Key Strategies to Grow Your Profits”]

Thomas:          [Laughing] Let’s move on to our next segment about the faithless electors decision, I guess, that I’ve just seen fresh-

Andrew:          Yup!

Thomas:          Hot off the presses, so I’ve only seen the headlines, but I’m seeing people buzzing about it, what’s going on with this faithless electors decision?

Andrew:          Okay, so I love the fact that we’re gonna talk about this decision, because this is one of my absolutely favorite things to do!  So let me put you on the spot.  Thomas, should electors be able to be faithless?  And by “faithless” we mean-

Thomas:          Well…

Andrew:          The state comes down, you know, the popular vote in the State is for Donald Trump but one of the electors says “I’m gonna vote for Hillary Clinton instead.”

Thomas:          So, a couple things, first this did happen, I know that there was a faithless elector somewhere that didn’t, that voted for somebody else, because I remember researching Trump’s election victory and the electoral votes are a little off because there was one faithless elector – unless that was like some specific rule to that State that doesn’t apply everywhere.  I mean, obviously there’s two side to every Schwartz as I often say, and on one hand you would think – and this is what everybody talked about going into 2016 after we kinda knew that Trump won – if there was any point to this nonsense electoral college system, if there was any point to it besides keeping slavery going in the 1800s or whatever, it would be to prevent Trump, so you would think, if there’s literally any reason to have it, the slightest reason, it would be to not elect Trump President and therefore you would want them to be able to be faithless electors and just elect whoever.  However, the obvious downside of that is, Elizabeth Warren wins and somehow they decide not to do it, but isn’t it just kinda dependent on partisan lean anyway?  So I dunno.  So that’s my answer, I guess maybe they should be allowed to?  But I don’t know that they’re going to or what, I don’t know.  Go ahead.

Andrew:          I could not have more perfectly scripted that answer, right?

Thomas:          [Laughs]

Andrew:          You don’t know, seriously!  You’ve hit on every single thing that I wanna talk about on this segment.  So let’s start with your dilemma.  Let me give you a more politically expedient answer, and this will be out of my mouth not out of yours-

Thomas:          Okay.

Andrew:          Which is, I would like for there to be a faithless elector provision if Trump wins again but it’s super close and we can keep him from being re-elected, but I would hate for there to be a faithless elector provision-

Thomas:          Yeah.

Andrew:          -if Elizabeth Warren wins and it’s super close.

Thomas:          Right.

Andrew:          And, you know, the Koch Brothers fund a billion-dollar campaign to convince two electors to switch their vote and we get Trump again, right?

Thomas:          Yeah.

Andrew:          So let’s be honest about that.  That position is legal realism, I would like the rule to apply on the basis of the outcome that I want it to reach.  And the problem with this kind of cynical approach to the law is if you feel this way and I feel this way then you can bet that Neil Gorsuch feels this way and you can really bet that Brett Kavanaugh feels this way, right?  We know what will happen if the Supreme Court is tasked to create a rule where one rule leads to Trump being re-elected and the other rule leads to his Democratic opponent being elected.  We know what the Supreme Court will do, because the Supreme Court has already done that.  We started this show, the first four episodes are all about Bush v. Gore and one of the takeaways, one of the reasons we started the show with that episode is there is no principled way to defend Bush v. Gore.

Thomas:          Yeah.

Andrew:          Go back and listen to those first four episodes if you haven’t listened to it, right?  If the rules are not set in advance and this Supreme Court is called upon to decide what the rules are, I’m as big a believer that the rule of law means a “thing” as anyone, there’s no doubt in my mind, they’ll pick the rule that makes Trump President again.  So what I love about this lawsuit is it is an effort to lock in the rules now, in advance.  So let me give you a little bit of background – and if you lock in the rules before you know, are they gonna hurt or help your candidate, then at least we know what the rules are, right?  At least we minimize the chance of another Bush v. Gore coming down that will, in my view, circumvent the Democratic process.

Thomas:          Yeah, this country is, what?  Two-hundred and forty-somethin’ years old?  Why are we just locking down the rules now! [Laughs]  Like, what?

Andrew:          [Chuckles] Yeah.  [Laughs]  Um?  You know, because we haven’t had a President who’s tried to kick in the rules as badly as this one.  So now, with that kind of in the background-

Thomas:          It would be like us playing 480 hours of “Codenames” and then finally being, “alright, Heath, you can’t cheat!  Now we’re telling you, you can’t cheat.”

Andrew:          [Laughing] Yeah, as opposed to game number 1, Heath Enwright!

Thomas:          [Laughs] Exactly!

Andrew:          So I will point out, I have reached back out to our buddy, Professor Lawrence Lessig who represents the Plaintiffs in this case, so I would love to have him back on to kind of do a deep dive on strategy and talk about it, until that happens I wanna break down – because all of the reporting about this decision has been beyond misleading.  So, let’s start with the premise that what we have is, we have two conflicting decisions.  We have a decision out of Washington State, out of a State Supreme Court decision that says that a State may bind its electors to the popular vote, and then we have this decision which came out of the Tenth Circuit that goes the other way, and Professor Lessig’s strategy is to appeal this to the Supreme Court and force the Supreme Court well before 2020 to make a decision and set the rules one way or the other.  Which, again, in my view, is the optimal outcome.  It’s not the end-state optimal outcome ‘cuz they might pick a rule that then winds up hurting Elizabeth Warren, but it’s way better than not having the rules and then having to go to partisan hacks and go, “okay, how are you gonna construe this rule?” because we know how they’re gonna construe the rule!  So let me kinda go through this particular Colorado lawsuit, here was the idea.  And, again, like I said, you hit on literally every single point I wanna make in this segment in your answer, it was fantastic.

Thomas:          Take that, everyone!

Andrew:          [Laughs]

Thomas:          I should get some bar credit for that.

Andrew:          You should!  This was – so at the same time that we were covering Jill Stein’s fraudulent recounts, there was a non-stupid but still super-duper long shot effort to try and make Donald Trump not the President, and that was an effort to find 37 Republican electors, which would take Donald Trump below the 270 threshold, would take him to 269, in order to throw the election into the House of Representatives and the pitch was, let’s get these 37 electors to all write in a moderate Republican candidate, they settled on John Kasich from Ohio.  Under the Constitution, if no Presidential candidate receives an outright majority then the election goes to the House of Representatives, each State delegation gets to cast one vote for one of the top three candidates receiving electoral votes.  So think about how that would play out, if the way it works is you find 37 moderate Republicans, you say “write in John Kasich,” that will throw the election that will give Donald Trump 269 electoral votes, Hillary Clinton what, 240?  And John Kasich 37.  They will be the top three candidates, it will throw the election into the House of Representatives, and the House of Representatives is not – they can’t just pick anybody, right?  They have to choose from among the top three.  They have to choose Trump, Clinton, Kasich.  And, fortunately for you, even if you go by straight numbers or if you go by control of State delegations, either way more than 26 States have – at the time – had majority Republican congressional districts, so they would then get to pick whoever the President would be and then presumably you would lobby Congress, and the 2016 Congress it seems pretty safe to say, as between Donald Trump and John Kasich would go with Kasich.  So that was the plan.

Thomas:          And it worked!

Andrew:          [Laughs]

Thomas:          President Kasich!  Yeah.

Andrew:          Right!  And it worked fantastically well, as we know, as President Kasich has led this country to an unpres- No, of course it didn’t work!  Because a plan that requires 37-

Thomas:          That’s a lot.

Andrew:          Yeah [Laughs] That’s the best way to put it, right?

Thomas:          If it was a handful, maybe.

Andrew:          Yeah!  If it was four, yeah, you probably could’ve done it.  And so that’s why we didn’t go through that process at the time.  Also because our [angry] base wasn’t giving money to the Hamilton elector project! [Laughs] I will point out that this is not an unprecedented thing, historically.  Two elections, 1800 and 1824, have been decided in the House of Representatives and then there’s the weird – we do not have time to talk about the election of Rutherford B. Hayes in 1876, the corrupt bargain and everything else.

Thomas:          [Whining] Awww!

Andrew:          I know!

Thomas:          But you promised!

Andrew:          [Laughs] But yeah, so if we had covered it at the time I would’ve said, “you’re not gonna find 37 people but go ahead,” because historically this is why the electoral college exists, and that takes us to the next part of your answer in which you referenced historically the reason for the electoral college, that is – and I have read parts of this on the show before – the actual place that that’s found is Federalist Papers No. 68, which I would call the saddest Alexander Hamilton, right?  [Chuckles] Hamilton is arguing for passing the Constitution and for it having the electoral college as the mechanism for selecting the President.  So he then describes exactly the way the electoral college works, exactly what I just did, and then he gives his reason, and this is why it’s the saddest.  Hamilton says, “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

Thomas:          [Hoity-Toity Voice] Hmm, yes! Quite! Hmm, yes, uh-huh!

Andrew:          [Chuckles]

Thomas:          Timeless truths, there.

Andrew:          “It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”

Thomas:          Mm-hmm. [Agreement]

Andrew:          So that’s an [Laughing] “Alexander Hamilton Was Wrong” segment that we can run

Thomas:          Yeah.  Take that, Hamilton.

Andrew:          Yeah, that pretty much describes Donald Trump, right?  Like, [Laughing] “talents for low intrigue and the little arts of popularity” that is the old-timey 18th century way of saying “criminally insane gameshow host.”

Thomas:          Yeah, if someone said that about you back then you were required to have a duel with them.  Them’s fightin’ words!

Andrew:          Yup! They were fightin’ words!

Thomas:          Back in 1700 speech.

Andrew:          [Laughs] So, look, it is abundantly clear that the purpose of not having States just, you know, transmit their numbers directly of having electors was to do exactly what Lessig’s group tried to do in 2016.  So what did they try to do?  They got lots of people in lots of different States, this involved the State of Colorado, and it involved three folks: Micheal Baca, Polly Baca (no relation), and Robert Nemanich.  And they were Democrat electors, Colorado won by Hillary Clinton, they were three of the nine electors for Colorado in 2016, and Baca cast his vote for John Kasich – because by this time it was clear that there might be, there were other faithless Republicans but some of them were looking at – one wrote in Collin Powell, so there was a reason to want to take away even some Clinton electoral votes because Clinton was never going to get more out of this process.

Thomas:          So were they just wanting to test the whole theory?

Andrew:          They wanted, A, to test the theory, and B, to make sure – because remember, the House of Representatives gets to pick from the top three candidates – for this to work the third highest candidate has to be Kasich.

Thomas:          Oh, okay.

Andrew:          That’s the only – because it’s a Republican controlled House and if you give them Hillary Clinton, Bernie Sanders and Donald Trump, they’re gonna go with Donald Trump, right?

Thomas:          Right.

Andrew:          So the only way to have the House not pick Trump is to give them a Republican they like better.  So the idea was to coordinate, everybody vote for Kasich.  So Baca came in, cast his vote for Kasich, and in response Colorado’s Secretary of State said “okay, under Colorado State law we are now removing you as an elector and we’re gonna put somebody in there who’s gonna vote for Hillary Clinton” and in fact they did, and they replaced Michael Baca on the electoral slate with somebody else.  Then Polly Baca and Richard Nemanich voted for Clinton.  They protest, they were like “alright, well we don’t wanna be kicked off the slate here, we’ll vote for Clinton, but we’re doing so under protest, we really wanted to vote for Kasich” and that’s what this lawsuit was about.  This lawsuit was the Bacas and Nemanich challenging Colorado, and they raised two separate sets of allegations.  The first was that removing Michael Baca was unconstitutional.

Thomas:          Hmm.

Andrew:          That it prevented him from being able to exercise his right as an elector in the Presidential election.  The second set of claims related to the other two voters and it was for various tort claims and various Section 1983 injuries that says, look, we were intimidated out of being able to vote our conscience.  We really, really wanted to vote for Kasich and we couldn’t because of Colorado law and so we’re suing you for that, and what the Tenth Circuit has said, and all that the Tenth Circuit has said – and again, I’m gonna explain the significance in a minute – that lawsuit was dismissed by the United States District Court in Colorado at the trial court level.  They said “you don’t have standing to bring this lawsuit” and their argument for why they didn’t have standing I’m gonna get into in a second.  The Tenth Circuit has reversed that in part and has said “no, Michael Baca was a Presidential elector and then when he went to vote that vote was taken away from him and that’s a kind of injury that, if he’s really been hurt here, for which you have standing, which the Courts can address.”  So they permit, they remanded back down to the district court and they’re going to permit Baca’s case to go forward.  Now Polly and Nemanich the Court said “your injury is too attenuating, sorry!  I claim I was intimidated by the State, that’s not good enough, you’re gonna have to – you were able to vote and you were able to vote without being removed and you suffered no penalty as a result of your vote, so you have no case.”

Thomas:          Hmm.

Andrew:          So that’s what they decide.  So the first thing to ask is, what would that basis for standing be?  Why is there a right for a Presidential elector to cast a vote?  And that goes to the understanding of a 1939 case, ironically a case we discussed the last time we had Professor Lessig on the show, Coleman v. Miller, and Coleman v. Miller is about – because the last time we had Professor Lessig on the show we were talking about Article 5 conventions, Coleman v. Miller is about a proposed Constitutional Amendment.  In 1924 Congress proposed an Amendment to the Constitution that would prohibit child labor.  Because it was 1924 of course it never passed!

Thomas:          [Chuckles]

Andrew:          But there were disputes over it.  So in 1925 the Kansas State Legislature was considering whether to sign on, ‘cuz it’s gotta pass three-quarters of the States, and so it was split 20 to 20 in the Kansas State Legislature and then the Lieutenant Governor was presiding over the Kansas State Senate, cast his vote in favor of the resolution, it was then adopted by the Kansas House and then signed by the Governor of Kansas.  And so the minority members in the Kansas Senate brought a Writ of Mandamus action to the Kansas State Supreme Court to say “hey, this was nonsense.  The Lieutenant Governor gets to break ties on laws, but he doesn’t get to break ties on Constitutional Amendments, you gotta have a majority and they didn’t have a majority, this should fail.”  And the Kansas State Supreme Court said “no, the resolution duly passed both Houses of Congress, the act of ratification was then final and complete and get out of here.”  So then they appealed up to the Supreme Court and the only issue – and again, I wanna cut to the punchline – the Supreme Court declined to examine the question of whether the Kansas Lieutenant Governor had the right to cast the tiebreaking vote or not.  They did not care [Laughing] about the result, which is the same as endorsing the result.  They said, look, this Court, quote, “is equally divided and therefore the Court expresses no opinion,” end quote, on the actual merits of the case but the significance of the case was a standing question, do you have, as members of the Kansas Legislature, the right to go to the Court for relief in the first place?  And what the Supreme Court said was, quote, “We think that these senators have a plain, direct, and adequate interest in maintaining the effectiveness of their votes.” End of quote.  So, that’s what Coleman stands for.  It stands for the proposition that you have standing when you are entitled under the U.S. or your State Constitution to a vote and you don’t get to cast that vote. 

Thomas:          Why-

Andrew:          Yup.

Thomas:          Why does it have to be that – you know, those lawmakers, why is it never okay… you’re probably gonna – I think I already know the answer to this, but you would think when it’s like “someone thinks a great injustice happened,” you know, one way or the other, this either shouldn’t have passed or should have passed, why is it not some sort of citizen group that’s able to say “this wasn’t right, we’re suing because of this”?

Andrew:          Yeah, that’s a really good question. 

Thomas:          Is it because it’s – is it that normal course of government thing where you can’t sue – haven’t you brought that up before?

Andrew:          Yes, yes.  Yeah.  And so it would be fact-specific, it would depend upon what the thing that the citizens interest group is trying to protect, but you have taxpayer standing and third-party standing.  There are specific areas where the Court has said-

Thomas:          Hmm.

Andrew:          “Yeah, I mean in general, if you’re interested in good governance you have standing because of X, because of how your tax dollars are being spent or whatever,” but they have narrowly constrained that in light of traditional standing principles because what you don’t wanna have happen is what would happen if you loosened the reigns on that.  Imagine-

Thomas:          Yeah.

Andrew:          Every single time the NRA lost, right? [Laughs] That any law got passed you’d be able to immediately go to Court-

Thomas:          [Laughs]

Andrew:          -and enjoin, that’s a terrible-

Thomas:          Every time the law that the NRA didn’t like?

Andrew:          Yeah.

Thomas:          I’ll take that!  I’ll take those-

Andrew:          I was gonna say, maybe I should look for a different example.

Thomas:          -all zero times?  Yeah.  [Laughs]

Andrew:          But, no, you could expand beyond that into just every time the legislature transacts business you have somebody that doesn’t like the end result of the Democratic process.

Thomas:          Right, any time you’re trying to do any sort of environmental regulations every single oil company every time suing, is it that kind of thing?

Andrew:          [Chuckles] Kind of like that thing, yeah.

Thomas:          Yeah.

Andrew:          But at least then those oil companies typically have direct standing, because they’re currently doing a thing and the new law, you know, banning fracking is gonna stop them from doing that thing.  That’s not-

Thomas:          I see.

Andrew:          That’s not third-party standing.  What would be third-party standing would be if, as you could easily imagine happening, in many of these States, the citizens of Florida are as opposed to offshore drilling as Congressional Democrats even though Florida leans Republican, so image that you had a settlement in which – you know, you passed a law and then you have a settlement in which the oil companies in Florida were no longer – the State Legislature bans offshore drilling and then the oil company agrees to shut down, they get some concessions or whatever and then all of a sudden a turf group funded by the Koch Brothers comes in and says “no, no, we have third-party standing, we are the Citizens for Inexpensive Gasoline in Florida and we wanna re-open this,” you could do that on literally every Legislative accomplishment.

Thomas:          Gotcha.

Andrew:          So standing serves and important purpose in my view.

Thomas:          Mm-hmm [Affirmative]

Andrew:          And that’s what the Tenth Circuit kind of did here.  They looked at Coleman and they said “okay, you guys are arguing that Coleman stands for the proposition that everybody always gets to exercise their vote” and then the Tenth Circuit said, “we think you’re probably reading that a little too broadly.”  Coleman stands for the proposition that the Legislature, that the Legislators whose votes would have been sufficient to defeat or enact a specific Legislative act have standing to sue if that act goes into effect or doesn’t go into effect on the grounds that their vote had been nullified.  So, think back to the Coleman case, if you throw out the Lieutenant Governors vote then those 20 Senators voting “no” would have gotten their way, and this overlaps with our discussion of standing from Jill Stein and, in fact, this is what the Tenth Circuit says here.  It says, “here, even if the Petitioners had successfully voted for John Kasich, the winner of the 2016 election would not have changed.  Donald Trump would still have received 304 electoral votes, a number constituting the majority of the whole number of electors appointed.”  So, in other words, that’s confining the standing doctrine.  That’s saying the vote thing has to be a vote that makes a real difference, but then they crafted this exception, and this is pages 86 to 87 of the Opinion, they say, “The only potential for legislative standing is where an individual Legislator suffers a personal injury.  So, for example, if a particular subset of Legislators was barred from exercising their right to vote on bills, such an injury would be sufficient to establish a personal injury.  Here, Mr. Baca has alleged that the Department struck his vote for President and removed him from office thereby preventing him from casting his vote for Vice President.  This is the type of injury that zeroes in on him individually and is thus concrete and particularized and is therefore a personal injury in fact.”  So that’s where they drew the dividing line.  That’s why it is confined to the electors themselves or to the legislators themselves.  Does that make sense?

Thomas:          Yeah, yeah.  I’m just thinking about, remember that one Congressman who got just the tar beaten out him by another one back in the 1800s?

Andrew:          [Laughs]

Thomas:          That guy – talk about suffering a personal injury!  I’m pretty sure he had standing.

Andrew:          [Laughs] Yes, he would!  That would not even be covered by Legislative Immunity!

Thomas:          [Laughs]

Andrew:          So that’s the decision.  There have been crazy headlines written about this.  NBC News headlined this as “The Faithless Elector Court Ruling Just Changed How We’re Going to Pick Our Next President.”  No!  That’s, none of that happened, and what this does is, like I said, this sets up a conflict where you now have two different rulings, one from the State of Washington which goes the other way.  So I suppose I should say the bottom line, here’s what this means: 20 States have no restrictions on their electors.  30 States have laws that bind the electors to vote for the popular vote winner.  Every state uses their criteria to select their slate of electors to try and ensure that the electors vote for the person who wins the popular vote in the state.  If the Baca rule becomes the dominant rule then here’s how I parse it out, States will be able to intimidate, cajole, threaten, do everything in their power short of removing an elector and replacing him with somebody else to vote a different way.  So States will still have the ability to try and clamp down and protect and make sure that its slate of candidates – its slate of electors – vote for Elizabeth Warren if she wins the State, but the thing they can’t do is, at the moment when that elector goes to cast their actual vote, they can’t go “oh, you voted the wrong way, we’re gonna pull you out and replace you with somebody else.”  And, by the way, another Andrew prediction, I think the Supreme Court will take this up and I think they will rule – it’s, again, kind of part of the brilliance of how this was litigated out – so I think Larry Lessig, somebody who was to the left of you and I on this show [Chuckles] the last time he came on the show, I think he’s going to win at the Supreme Court.

Thomas:          Alright!

Andrew:          And I think he’s gonna win because the arguments that I put in front of you are arguments that are likely very, very persuasive to a Supreme Court that professes to an Originalist ideology when kind of taken out of the context of “is this gonna help my guy or hurt my guy.”  To me, and this opinion, this Tenth Circuit opinion is 117 pages long.  It’s super long, it’s very comprehensive, it goes through the history, and not just Federalist 68 but Federalist 60 and Joseph Story’s Commentaries and I have a whole bunch of stuff that I could do on that but we’re over time anyway, but I think that we’re going to get the best possible outcome out of this, which is we’re gonna get a definitive rule and that definitive rule will be made without the knowledge of which party it’s going to benefit and if you can get a better result than that from our Supreme Court then, you know, then give me a call.

Thomas:          [Chuckles]  Alright, well, let’s hope this doesn’t come back to bite us when Trump loses by a handful of electoral votes and the faithless electors give it to him anyway.

Andrew:          Thanks.  Thanks for that.  Appreciate that.

Thomas:          [Chuckles]  Right after the apportionment screws us all out of – just worst possible timeline, just preparing my Negatron, my future Negatron.

Andrew:          Understood, understood.

Thomas:          [Laughs]

[Commercial – vistaprint.com/oa for 500 business cards starting at $9.99]

Thomas:          We’re late and out of time, but do we have a lightening round left in us, here?

Andrew:          Yeah, let’s do a lightening round.

[Segment Intro]

Thomas:          Alright, lightening round Andrew, what’s going on with the emoluments case?  Are we still going with this?  Still with the emoluments?

Andrew:          [Chuckles] Uh, we won’t be going with this much longer.  In Episode 299 I described the last ruling out of the D.C. Circuit Court of Appeals that, while technically denying relief, remanded back down to the D.C. Circuit, this is Judge Sullivan in the D.C. case, with instructions that – particularly if you listened to the Patreon-only bonus deep dive we did on it – said, look, this is really, really clear.  This is going to – any judge on earth is going to take this ruling and issue, certify for interlocutory appeal the President’s request to have the D.C. Circuit decide the legal question of “do individuals have the right to sue for violations of the foreign emoluments clause” and to shut down discovery.  So, way back when we had an unexpected victory in the Maryland case I said, “look, part of the genius here is that the courts refuse to certify an interlocutory appeal and require discovery and discovery orders are not immediately appealable so we’re gonna get documents.”  The Trump lawyers circumvented all that, and we are now in a place where the discovery in the D.C. case has been suspended, there will be no documents produced in that case, it will go back up to the Court of Appeals for the D.C. Circuit, which I think very likely will rule that the contemplated remedy for emoluments clause violations is impeachment.  And, look, I’ve been saying that from the very beginning, right?

Thomas:          Yeah.

Andrew:          I’ve been interested in getting these documents, I think the allegations are substantial and serious and have merit, but they come in a legal framework that when you look at it it’s just very, very clear to me that that Constitutional provision was meant to apply to the House of Representatives and not to individual litigants and, you know, this is a Lessig-heavy episode, so-

Thomas:          [Laughs]

Andrew:          -one of the things he said in our extended interview with him that I took very seriously is at some point it is still a Democracy and [Laughs] you do still have to trust what a majority of the people will do and, you know, it… it sucks in this case, obviously.

Thomas:          Meaning what?  Meaning what, like Congress is-

Andrew:          Yeah, meaning that-

Thomas:          ‘Cuz we can’t do it.  [Laughs]

Andrew:          No, but meaning that-

Thomas:          We just have to hope that Congress does it?

Andrew:          That maybe you shouldn’t vote for-

Thomas:          Yeah, that’s true.

Andrew:          -a corrupt billionaire who refuses to release any information about his personal finances, and refuses to pledge to even divest himself-

Thomas:          Yeah.

Andrew:          -of his financial conflicts of interest.  This is not an unforeseen consequence of electing Donald Trump, this is the reason people elected Donald Trump, and, you know, so…

Thomas:          Yeah, it is true that the rulebook isn’t really gonna save us.  You know, we actually have to not be the worst as a country.  Somehow. 

Andrew:          Yeah.  Yeah.  And, you know, I wish – It’s part of what I think about.  I certainly think – I don’t think “persuade people better” is the answer to everything, but maybe it is part of the answer to some of these Trump issues.  I don’t know.  Look, I would much rather us have these documents.  I think the documents would have been a gateway to show further criminal activity.  But there is a very, very strong argument on the other side that says, “hey look, that’s great and all, but don’t use the civil litigation process as a vehicle for that.  Look, you’ve got the House of Representatives, you have the House Judiciary Committee, you have the House Intelligence Committee, you have the House Oversight Committee, go about getting this information in other ways but private litigants?  Not the way to do it.”  And, um-

Thomas:          This is still an “Andrew Was Right” right?  I mean, you’ve been predicting this the whole time?

Andrew:          Yeah, I think so.  I may have – I’m sure you can find some exuberance that I had when I was surprised by the Maryland decision in which there were probably sub-predictions in which I said – I know I said “we’re gonna get documents” because-

Thomas:          Oh?

Andrew:          -I didn’t anticipate that the Fourth Circuit would, in a ruling on a Writ of Mandamus, which they denied – because Mandamus Relief is not appropriate here, would nevertheless effectively reverse and kind of shut that down.

Thomas:          Wow.

Andrew:          So, yeah.  There have been things that I have been wrong about in this litigation, I don’t wanna not own up to those.

Thomas:          Oh.

Andrew:          Because Seth Barrett Tillman’s listening and he’ll write in if I’ve gotten it wrong.

Thomas:          Yeah.  Yeah, yeah.  Well, on behalf of everybody, how dare you, Andrew?  You got stuff wrong.  I’m so disappointed.  Alright, that was a good lightening round!  Or is there more?

Andrew:          No, that’s it!  We’re done!

Thomas:          Wow, that was maybe your most successful lightening round ever!  It was only five minutes or something.  Three minutes?  [Chuckles]

Andrew:          Yeah, and I had questions from you!  You were not helping me in this!

Thomas:          Yeah, no, I usually am trying to mess with you.  [Laughs] Alright, well it’s time to get to happier things ‘cuz that was depressing, so let’s go on over to patreon.com/law and thank our hall of famers, our all-time greats, who always give us laughs week-in, week-out with their names, time for the shout outs!

[Patron shout outs]

Thomas:          Alright, wow, I thought that would never end, but it’s probably just the shame of me mispronouncing words randomly.

Andrew:          [Laughs]

Thomas:          That’s what happens when you talk all day every day for a living.  Sometimes you get a few things wrong.  Alright-

Andrew:          Well, here’s a thing you won’t get wrong.

Thomas:          I was gonna say!  Speaking of things I get wrong, it’s time for the bar exam.  I’m on a zero, like a ten-question wrong streak, right?  Or did I get one-

Andrew:          Four.  It’s a four-question losing streak.

Thomas:          Okay.

Andrew:          But, you know, I have confidence.

Thomas:          I think in between, sandwiched, I got one right and before that was like a six-question wrong streak.  I’m not doing well.

Andrew:          I feel – I have faith in you and let’s see how you like this one.

[Segment Intro]

Andrew:          This is not real property, this is just torts!  You should be great at this!  Thomas, a customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store.

Thomas:          Ooh!  Banana peel law, my specialty!

Andrew:          Yeah!

Thomas:          [Chuckles]

Andrew:          The banana peel was [Laughing] fresh and unblemished except for a mark made by the heel of the customer’s shoe.

Thomas:          [Laughs] Interesting to see how that factors in?  Okay.

Andrew:          In an action brought by the customer against the store-

Thomas:          Wow.

Andrew:          -these are the only facts in evidence.

Thomas:          Huh.

Andrew:          So, hell of a lawyer that Mr. Banana-Peel-Slipper has, but – these are the only facts in evidence.  Should the trial judge permit the case to go to the jury?

Thomas:          Huh.

Andrew:          A:  No, because the customer had an obligation to watch where he stepped.  B: No, because there is not a reasonable basis for inferring that the store knew or should have known of the banana peel.  C: Yes, because it is more likely than not that the peel came from a banana offered for sale by the grocer.

Thomas:          [Chuckles]

Andrew:          Or, D: Yes, because the store could foresee that a customer might slip on a banana peel.

Thomas:          Aw man!  I don’t know.  This is. [Sighs] Ya’ think you’re gonna get one in your specialty, banana peel law, and then they throw this curveball at you.  So, the banana peel was fresh and unblemished.  I mean, is the point of that to suggest that, like, it just happened, literally just happened?  So maybe the store couldn’t have known about it?  Should the trial judge permit the case to go to jury?  I mean, I always feel like stuff should go to jury, like you should get your day in Court, you know.  Is this enough to?  I’m not gonna know what specific rule – I always hate when you say you have a good feeling about me getting a question because it’s always nonsense.  You’re just saying that to taunt me.  [Sighs] No, because the customer had an obligation to watch where he stepped, well… I don’t think so.  I mean, I don’t think that’s it.  B, no because there’s not a reasonable basis for inferring that the store knew or should have known of the banana peel.  Um.  Yeah, B is – okay, that seems pretty plausible.  That would be under the logic that, look, sure if this was a banana peel that had all kinds of foot marks on it, [Laughs] just fifteen people in a pile, slipping on the same banana peel that’s been there for an hour!

Andrew:          [Laughs]

Thomas:          So, B I’m seeing plausible.

Andrew:          [Laughing] This is the greatest re-write of a bar question, ever!  Anyway, sorry, keep going.

Thomas:          C, yes because it’s more likely than not that the peel came from a banana [Laughing] offered for sale by the grocer.  So I could see that answer being it under the theory that, which may be right, that all you need to show is that they sold a thing and that – or, a product of theirs caused this, even if ultimately maybe they’re not to blame, just to get the case to go to jury, so I could see C being it under that logic.  D, yes because the store could foresee that a customer might slip on a banana peel.  I don’t know, I’m not loving that one very much.  I think I’m between B and C, which is a no and a yes, so I’ve got both options here. [Sighs] An action brought by the customer against the store, these are the only facts.  I feel like they could’ve gone a little harder on the facts.  Should the trial judge [Mumbles] I mean, I feel like – I lean toward yes, so I guess I’ll go with C.  It seems stupid.  Let’s see, B, no there’s not reasonable basis… I dunno.  This is a weird question.  I feel like going to jury should be pretty, a pretty light burden.  You know, I think?  ‘Cuz that’s, you know, you still go to jury, doesn’t mean you win, you know?  Like, you still gotta make the case, so on that logic I’m gonna go C because it’s more likely than not that the peel came from the banana offered for sale by the grocer, or I’m sorry, grocer, is that?  Gotta get my theh-sur-us [Laughs] or thesaurus-

Andrew:          [Laughs] Yeah, I was gonna say it’s pronounced “Al-oo-min-ee-um.”

Thomas:          Grocier?  Yeah.  So, yeah, I’m gonna go with C, I’m not confident because, you know, my confidence has been shattered by just a string of banana peels that I’ve slipped on every question, but there you go!  C, final answer.

Andrew:          Alright, and if you wanna play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, and we will pick a winner and shower that person with never ending fame and fortune! (Fame and fortune not guaranteed).

Thomas:          Alright, thanks so much for listening everybody, I know it was a depressing episode as always, but we live in the worst timeline, so that’s why!  [Laughs] But, make sure to toon in on Tuesday for a Stormy Daniels update, I am just as excited as you are, if not maybe a little more excited.  So up your excitement level and we’ll see you then!

[Show Closing]

OA308: Faithless Electors

Today’s Rapid Response Friday breaks down a just-released decision from the U.S. Court of Appeals for the 10th Circuit that has produced a ton of alarming media. Is that alarm warranted? (No.) What did the court actually decide, and how will it affect the 2020 Presidential Election? And what does any of this have to do with Lawrence Lessig?? Listen and find out!

We begin, however, with a grab-bag of questions arising out of Episode 307 on apportionment and revisit an issue that Andrew predicts will hang over the next Presidency. Are there any “quick fixes” to the problem or are we destined to be hung up in litigation?

Then, it’s time for our deep dive into Baca v. Colorado, understanding (a) how this case came about, (b) what it says, and (c) what the implications are for the 2020 Presidential election. Is it some crazy ruling in favor of Trump? What’s “the saddest Hamilton?” Listen and find out!

After that, it’s time for a quick update on the emoluments clause litigation, this time examining a recent ruling by the U.S. District Court for the District of Columbia. What’s the future for individual lawsuits against the President? (Hint: it’s not good.)

And then it’s time for a brand-new banana law-themed #T3BE! Will this slip-and-fall question be enough to get Thomas back in the win column? Listen, and then play along!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Check out Laurence Tribe’s “Optimist Prime” article in the Raw Story.
  2. For more on apportionment, you can read 2 U.S.C. § 2a and catch up on Franklin v. Massachusetts, 505 U.S. 788 (1992), the controlling Supreme Court precedent.
  3. Click here to read the 10th Circuit’s decision in Baca, and for an example of unwarranted freakout over the Baca decision, check out this wildly-misleading NBC article.
  4. If you love the deep dive, don’t forget to refresh your memory by re-reading Coleman v. Miller, 307 U.S. 433 (1939).
  5. We last updated you on emoluments in Episode 299 and in this fabulous Patreon-only bonus. You can also check out the latest DC ruling.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





Download Link

Transcript of Episode 307 – Apportionment

This is the transcript of OA307: Apportionment – The Census Fight Is Not Over, which you can listen to here. Special thanks to Heather Loveridge, our transcriptionist!

[Show Introduction]

Thomas:          Hello and welcome to Opening Arguments, this is Episode 307 and I am – apparently, should be terrified, so I’ll terrified-edly ask, how are you doing, Andrew?

Andrew:          I am fantastic, Thomas!  But I’m gonna scare the hell out of all of our listeners, so-

Thomas:          Hmm.  Cool.  Well, at least we have a nice fun segment planned for later that I can’t wait to get to.

Andrew:          [Laughing] Me too!

Thomas:          It’ll cheer us all up, that’ll be fun, so we-

Andrew:          Hey!

Thomas:          -You know, a spoon full of sugar, I guess.  [Laughing]

We are going to be talking about the census fight – that was definitely all over and done with and we solved it, so I don’t know why Andrew’s gonna just do some post-mortem, maybe, I dunno.  So, yeah, we’ll see! [Laughing] We’re also gonna talk a little yodeling!  A little bit of yodel on a Tuesday for ya! Yodeling on a Tuesday afternoon.  The McGahn Suit – I saw this – it was like they tried to get it with one judge and it didn’t and – I know a lot of right-wing sources are reporting that like it’s some victory for – who knows?  We’ll see, maybe there’ll be some good news in there.  And then, finally we’ve got a fun little segment planned for later, Optimist Prime v. Negatron!  That’ll be fun, you’re gonna wanna hear that one! 

Okay, are we ready to go?  Any announcements?

Andrew:          Nope, let’s get to it!

Thomas:          Let’s do it!

[Segment Intro – Yodel Mountain]

Thomas:          Alright, we’re here for weird Tuesday yodels, off season!  Off season yodeling!

Andrew:          [Laughing]

Thomas:          There’s not as many cars in Yodel Mountain Valley, you know it’s easy to get up there, so it’s good, that was smart of us.  Why are we yodeling on this particular Tuesday?

Andrew:          Yeah!  So, as you alluded to in the intro segment, the House Judiciary Committee lost a motion in the U.S. District Court for the District of Columbia and I’m here to tell you that – you know, they didn’t lose that, and what it means.  So, here’s that! 

The House Judiciary Committee has filed a number of lawsuits, as we’ve mentioned, and one of the lawsuits that is currently pending before Chief Judge Barrett Howell, whom we have discussed in the past, is a lawsuit to unseal the Mueller Grand Jury materials.  And just last week when the Judiciary Committee also sued for Declaratory and Injunctive Relief requiring Don McGhan to testify, which we’ve covered at some length on the show, they filed that as a “Related Case” in the U.S. District Court for the District of Columbia, so they said, “hey look, this is related, and Judge Howell you should take this case as well.”  The counsel for Don McGhan objected to that, and so Judge Howell had to decide whether she was going to continue to keep those cases together or whether she was gonna throw it back into the total – the overall Judge pool, right?  And that ruling came out, and there are some portions of the ruling that right-wing sources have tried to seize on, in particular Judge Howell said that “the connection between these two cases are too superficial and too attenuated to address them together” and then she also points out that Don McGhan is a crucial witness who has a, quote, “unique position as Whitehouse Counsel, that then raises potential questions of privilege and immunity.” 

I am here to tell you, this is not a setback and that any source that is saying “ha ha, Jerry Nadler lost in Court,” is just somebody who is either willfully misrepresenting this or doesn’t know how to read a Court document.  I think this is almost certainly the correct result.

Thomas:          Hmm.

Andrew:          And what it does is it bulletproofs the consideration on appeal.  This case, the McGhan and Hope Hicks requests, arise out of the same transaction, but other than this all arises out of a generalized impeachment inquiry – and, by the way, that is the justification that was offered by the House Judiciary Committee, right?  We need this to ascertain whether we want to impeach the President.  That is, under the legal standard, more attenuated, and they probably should be addressed separately.  Now the question is, to whom is this case going?  And, look, there are Trump appointments on the U.S. Court of Appeals for the District of Columbia, so, you know, is it going to go to somebody who’s a Trump-Supporting-Hack?  Well, the answer is: yesterday it was assigned to Judge Ketanji Brown Jackson, a 2013 Obama appointee.

Thomas:          Hmm.

Andrew:          Somebody who was a semi-finalist for the Supreme Court nomination that went to Merrick Garland.  She is 48, she is an African-American woman, she is double-barreled Harvard, she was a year ahead of me at Harvard Law School and on Law Review, so – I didn’t know her personally.  In any sane universe she would be on the D.C. Circuit by now, she’s incredibly bright, incredibly ambitious, and I have no doubts whatsoever that she’s gonna rule fairly on the question of whether McGhan can be compelled to testify.  And, by the way, it is correct – I mean, we said this on the show – the fact that McGhan was Whitehouse Counsel does indeed put him in a different position with respect to being able to assert certain kinds of privilege, than Hope Hicks, who was just communications director.  So that’s all correct, and I’m not troubled by this at all, and there you go.

Thomas:          So, when Fox News is reporting it as “the latest impeachment gambit backfires for the Democrats” that’s… not accurate.

Andrew:          Yeah.  That is not.

Thomas:          Would it be fair to say there’s some “spin” in the “no spin zone” happening?

Andrew:          [Laughing]

Thomas:          Perhaps?

Andrew:          [Laughing] I mean – if you think that McGhan’s got a better shot with a 48-year-old solidly liberal African-American woman than he does with the 70-year-old white Chief Justice?  You know, who knows?  But-

Thomas:          But, to be fair, they did try to make this happen and it didn’t, so-

Andrew:          Right.

Thomas:          Yeah, so did they?

Andrew:          Yeah, well, look, because “bird in the hand” right?  Judge Barrett Howell is a very, very well respected judge, not a Trump hack, somebody you knew was gonna be fair.

Thomas:          Okay, so they just didn’t want to roll the dice?

Andrew:          Right.

Thomas:          They’re like, “look, we’re fine with where we are, let’s not risk it” and then we, for once! [Laughs] The universe smiled on us! And was like –

Andrew:          [Laughs] Yeah! 

Thomas:          We rolled a better – I was gonna say “hand” but you don’t really roll a hand…

Andrew:          Yeah, we rolled a 7!

Thomas:          [Laughs] Yeah!

Andrew:          That’s the way it goes.

Thomas:          Okay!  Well, good stuff!  Alright, we’re setting us up for the fall later.  [Laughs]

[Segment Intro]

Thomas:          Now that we took just a little hike up Yodel Mountain – just a brief one – Andrew… [Deep Sigh] give us the bad news.  Why should we be terrified?  I thought this census thing was over?  You promised me.  And, actually, for the record, was this any of our predictions?  Did I predict that this would somehow keep going?  If so I wanna – at least – be right.  That’s my one… condolence, I guess, I dunno what you would say.  Tell us what’s going on.

Andrew:          So here’s what’s going on with the census and what you need to know, what I believe is being planned.  First, a little bit of background.  Just, in a fair counting on the census – we know Republicans want an unfair counting – in a fair counting on the census, I’m just taking this from Wikipedia, multiple forecasters have kinda looked at the demographic shifts and have estimated where seats are going to change as a result of the 2020 census.  Those estimations, the way I break them down, involve a shift of Blue states losing five seats, Blue-leaning battleground states (and by that I mean Michigan and Pennsylvania) losing two seats.  So that’s seven (7) seats that will then be transferred away – five to Red-leaning battleground states and two to deep red states.  So, that’s the map.  It’s a fourteen (14) point swing in the electoral college in favor, in a rightward direction.  That’s what we’re looking at just as a result of a fair count in the census.

                        And, by the way, that comes from retirees moving south, right?  Florida’s likely to gain two seats, Texas three seats.  So, that’s a lot right there.  Of course, just taking advantage of demographic trends is not enough for Republicans.  They would also like to alter the count so that they can take even more advantage.  So, for example (and we’re gonna come back to this) Alabama is one of the states that’s projected to lose a seat because population growth in Alabama has lagged behind the rest of the nation over the last 10 years, for reasons we don’t’ have to speculate on, on this show.  So, I thought it might be useful to take a look at – and this is really how this started out – I looked at the last time we had a significant battle over states losing congressional districts as a result of the census and it takes us back to the House eon days of 1992 and a case called Franklin v. Massachusetts and that case was kind of a microcosm of where we are now.  We had Republicans in power in the 1990 census who were looking for a partisan advantage in how the population was counted and in that case they found it in the personage of “Federal employees including those who were serving in the military who were serving overseas at the time of the census”, right?  So, for most of the 20th century, if you weren’t in the Country at the time of the census you just didn’t count.  

Thomas:          Hmm.

Andrew:          But, in 1970, thanks to friend of the show Richard Nixon –

Thomas:          Yeah!

Andrew:          Yeah! 

Thomas:          Is he a Patron, or, I think he is …

Andrew:          Yeah! [Laughing] Richard Nixon’s head is a Patron!

Thomas:          [Laughing] [Nixon Impersonation: I love your show!] Yeah, no, that’s not good, I gotta work on it!

Andrew:          [Laughing] That wasn’t terrible!

Thomas:          [Nixon Impersonation:  Raawr] you gotta do, like, the … [Nixon Impersonation: I love your show!]

Andrew:          [Laughing]

Thomas:          Yeah! That’s better!

Andrew:          Yeah, the jowl-ey–

Thomas:          [Nixon Impersonation: I’m gonna catch Konrad Michaels!]

Andrew:          [Hearty Laughter] Nice!!  So, but seriously, in 1970 at the height of the Vietnam War the idea that, oh well you don’t count as being in this country ‘cuz you’re dying in Vietnam- 

Thomas:          Yeah.

Andrew:          That was bridge too far for Richard Nixon, right?  So he ordered that the Commerce Department, that the department of the census, count soldiers by their home state of record.

Thomas:          Huh, seems fair to me, right?  I mean-

Andrew:          Totally seems fair!

Thomas:          I agree with Richard Nixon, everybody!

Andrew:          [Laughs] As it turns out, that was a complete and total scam!

Thomas:          Oh.

Andrew:          Because-

Thomas:          I don’t agree with– [Laughs]

Andrew:          [Laughing] I can’t tell-

Thomas:          Let me retract my previous-

Andrew:          I can’t tell from the previous record whether it was an intentional scam or just turned out this way, but here’s what happened.  So the person – when you entered into the military you get to declare your “home state of record” and you just pick it, right?  And so what they determined, after allocating this back to the states in 1970, was that military personnel were disproportionately – because they got shuffled all around – it was an institutional preference in the military to pick and designate as your home state of record a state that had no income tax.

Thomas:          Ooh.  Okay.

Andrew:          Right?  Because then the government wouldn’t withhold state income tax, accruing, while you were in the military.  Even though that didn’t – as it turns out – your actual tax liability was not a function of your home state of record, but this is one of those urban legends that just permeated throughout-

Thomas:          Oh yeah!  So they still ended up having to pay the taxes?

Andrew:          Yes. 

Thomas:          Okay – this happened – when I was payroll manager this kind of crap, all the time, would be like, “Ooh I heard you can change your exemptions to like 20 million and I wanna do that” and I’d have to go along with it be, like “you’re just gonna pay this back, man… sooo… okay, fine, I’ll change your exemptions to 11 on your whatever, W – I don’t remember anymore, okay, fine.”

Andrew:          [Laughs] Yeah!

Thomas:          So it’s like that, where people are trying to game it but it doesn’t work.

Andrew:          That’s exactly right.

Thomas:          Okay.

Andrew:          But as a result that means that everybody realized that the counts were sort of wildly inaccurate and so on the 1980 census they took that back off, and they were like, “okay, that was stupid, our bad, let’s not do that again.”  The 1980 census, of course, the administration of which was under the Democratic president, Jimmy Carter.  Just in case you’re looking to allocate political blame.

Thomas:          Sure.

Andrew:          You could say that.  Right?  It would surprise me if the Carter administration was not aware of the fact that taking that off would have a potential benefit to Blue states, although the map was very different back then, too.  But, in any event, by 1990 the political map looks a lot closer to what it does now, and Republicans decided to revisit the motion of counting soldiers by their home state of record because, Republicans, right?  And, in fact, they did that.  They changed the rules back, they counted U.S. federal government employees serving overseas including servicemembers and as a result Massachusetts lost a seat. 

Thomas:          Hmm.

Andrew:          They went down from eleven to ten.

Thomas:          You know, I’ll be honest though, it seams reasonable to me.  It doesn’t seem like Constitutional Hardball to be counting people who do live there, am I wrong?  What do you think?

Andrew:          I don’t think you’re wrong!  So, Massachusetts sued to get their seat back and they lost in the Supreme Court on a fractured, but 9-0 decision.  So this is one of these that has a bunch of concurrences –

Thomas:          Right.

Andrew:          But no dissents.  So, put a pin in that for now.  And let me talk about the current lawsuit which is pending in the U.S. District Court for the Northern District Court of Alabama, and has been brought by Republican Congressman Mo Brooks (Morris Brooks Jr.) against the Department of Commerce Wilbur Ross in his official capacity as Secretary of Commerce and the bureau of the census and the director of the census.  Alabama and Mo have sued the Department of Commerce and the census to say that including illegal aliens in the census count will cost Alabama a congressional seat, and therefore an electoral vote, and their argument is that the framers did not intend for aliens to be part of the enumeration and so counting aliens as, quote, “persons in each state violates the administrative procedures act and the constitution.”

Thomas:          But they so clearly did intend, to, right?

Andrew:          Yeah!! This argument is crazy!  This is bananas in pajamas level insane.  But we just had a motion – well, we had two weird developments.  First, the government moved to dismiss on the lack of standing and, secondly, groups moved to intervene on behalf of the Defendants in this case, specifically two groups – one, a group of voters in California, Florida, Arizona, and Texas along with a Latino Voting Rights group, and the second bucket of intervenor defendants were the City of San Jose, California, and the counties of Santa Clara, California and King County, Washington.  The individuals are there as members of states that stand to gain electoral votes and congressional districts as a result of the census and the municipalities are in there as representatives as municipalities with large populations of undocumented persons.  So, on face, I don’t know if, objectively, you need to allow these folks to intervene in the case.  In the governments position, and Mo Brooks – the government’s position is “we take no positon.”

Thomas:          Hmm.

Andrew:          But the State of Alabama, and Mo Brooks’ position was, let them be amicus, right?  Let them submit amicus briefs-

Thomas:          Is that like “let them eat cake?”  Is that? [Laughs]

Andrew:          [Laughing]

Thomas:          Let them be Amicus!

Andrew:          Remember the difference, right? 

Thomas:          Yeah, you’re not actually part of the thing.

Andrew:          Yeah.

Thomas:          But it is kinda like “let them eat cake!” [Laughs]

Andrew:          [Laughs] Yeah, wait, I guess!  [Laughs]

Thomas:          Yeah!

Andrew:          He says, look, if they have an interesting position they can raise it in Amicus Briefs, but, you know, the government can adequately defend their interests.  And the government said, “yeah, well, it’s up to you.”  And I want to explain that I have never seen this before, okay, I’ve only been practicing law for 22 & ½ years, but literally I have never seen this, I’m going to link it in the show notes.

Thomas:          Let’s cliffhanger that and take a quick beak.

[Advertisement Break: brooklinen.com get 10% off and free shipping when you use promo code OA]  

Thomas:          Alright, we’re all on edge, Andrew, what have you never seen before that Mr. Court did?

Andrew:          So!  In the Court’s adjudication of the Motion to Intervene, this is Judge R. David Proctor, U.S. District Judge for the Northern District of Alabama, he says, you know, “I think that the Court is going to benefit from having these voices.  The defenses that the proposed Defendant intervenors intend to submit share identical questions of fact and law with the main action, and so they are entitled to a secondary voice in the action in order to protect their specific interests.”  Okay!  I’ve seen language like that before.  The footnote supporting that says, and I’m gonna read this directly, “the decision to permit intervention in this case is particularly significant in light of Defendants” (that’s the government, that’s the Commerce Department and the Department of the Cencus) “rather halfhearted motion to dismiss for lack of jurisdiction.  This Court is concerned that Defendants have overlooked a key argument as to why plaintiffs lack Article 3 Standing, allowing intervention or increase the prospect that the Court will be more fully informed of the best arguments that support Defendants position.”

Thomas:          Hmm?

Andrew:          I don’t think I gave enough of how shocking that is.

Thomas:          I don’t really understand that.

Andrew:          [Laughing] Yeah.

Thomas:          Break it down for me?

Andrew:          Yean, so that is the Court saying “you know, maybe I shouldn’t allow these parties to intervene here because their interests overlap 100% with the interests of the government.”  But the government has done the worst job-

Thomas:          Oh!

Andrew:          -in this case that I could possibly imagine!

Thomas:          Wow!

Andrew:          They have, quote, “rather half-heartedly” (endquote)

Thomas:          [Laughing] Wow!

Andrew:          “Moved to dismiss their motion to dismiss” and, again, omits the best argument you could make, and, by the way, it’s this argument right here, and then-

Thomas:          And so! … Go ahead, sorry-

Andrew:          it says, “if I allow these parties to intervene” and, again, let me read the exact words, “ the court will be more fully informed of the best arguments that support Defendants position” (end of quote). 

Thomas:          Is it the job of Mr. Court to, like, help the government?  In this way?  This is … This is like the WWE (or whatever it is nowadays, is it “F”? “E”? I can’t remember)

Andrew:          [Laughs] It is “E”!

Thomas:          And then, it’s like the tag team thing, where they’re like “well, Mr. Undertaker, you were just gonna be an amicus” (whatever) “wrestler, but the current wrestler in there is terrible.” The government’s like… or the referee is like helping them tag in!  He’s like, “you need to tag in, no stop everything, let’s bring the undertaker in”  Was that all … good?  I don’t watch wrestling, was that all accurate?

Andrew:          [Laughs]

Thomas:          -a good comparison?

Andrew:          Well, there are two ways to read this.  You can read this as sort of dogpiling in favor of the government, but remember that the underlying supposition that’s being made here is one that we have dismissed as crazy conspiracy theory in other cases, right?  So you remember the dual-severance doctrine case, right?  Where everybody was saying, “oh we’re gonna get Brett Kavanaugh”-

Thomas:          -This?  Yeah, yeah.

Andrew:          Yeah, and the reason is because they’re gonna overturn dual sovereigns and then Donald Trump will be safe and we pointed out, the Government was arguing the other side of the dual sovereigns case, right?

Thomas:          Mm-Hmm (agreement)

Andrew:          Here, Alabama is arguing that the census department needs to not count illegal aliens.  The supposition that this judge has made is, the government isn’t really fighting that that hard.  The government’s kinda like “oh no, we should . count . everyone . there . are . lots . of . good reasons.” And that they’re, to continue your wrestling analogy, that they’re getting ready to, you know, theatrically take a dive and, you know, recoil in horror when the guy lands five feet away from them on the springy mat.

Thomas:          [Laughs]

Andrew:          And so, to ensure that there’s somebody in this case that actually cares about conducting an actual enumeration of the census – ‘cuz we can’t trust the Department of the Census to do that –

Thomas:          [Laughing] Oh, wow!

Andrew:          We’re going to bring in these additional municipalities and outside interests.  That’s why I say I have never seen a Court say, in a case in which – I mean, right, because the lawyers here – this is why the Court threw that inference, right? – I have seen courts when you have people who are represented pro se, Courts all the time will step in and go, “Okay, Mr. Smith, wouldn’t you really” – and they’re kind of nodding up and down at you, “wouldn’t you really rather move to dismiss right here?” Right?! [Laughing] and the Court will guide you if it thinks you don’t’ know the law.  And in cases where the lawyer is bad, sometimes the Court will jump in and go, “are you sure that’s the objection you want, counselor?”

Thomas:          [Laughing]

Andrew:          And I’ve heard that!  But I’ve never seen a Court say, “well, these are career Department of Justice attorneys, these are smart lawyers who know what they’re doing, their failure to include the best argument for their brief suggests that they don’t care about winning this case.”

Thomas:          Mm-hmm.

Andrew:          “- and we’re gonna get somebody in who does care about winning the case.”

Thomas:          By the way!

Andrew:          Yeah!

Thomas:          How must they feel right now?  Where they’re so bad that the judge is, like, trying to help them out?  Just – you know, like – what if they actually think they are giving the best argument? 

Andrew:          [Laughs]

Thomas:          Why wouldn’t they? 

Andrew:          Well, they wouldn’t be if what they want is to lose and to be ordered to exclude.

Thomas:          Oh!  So they actually, ‘cuz this is a whole mess that really you shouldn’t do, so you think there’s some conscience there?

Andrew:          I dunno.  I don’t know on that.  But I do know, that’s what the Court did in terms of permitting intervention and just a few weeks ago the Court ruled on the Motion to Dismiss and held, very clearly, that without addressing the merits that if the allegations are what Alabama says, that they can sue the Department of Commerce, so they denied the Motion to Dismiss, they allowed Alabama’s Moe Brookes’ lawsuit to go forward.  Here’s  what we know since then, and I’m gonna bring together a couple of different things and then we’re gonna go back to that Franklin case.  So, on the day on which we did an “Andrew Was Wrong” that was, “Donald Trump and Bill Barr headed to the Rose Garden to Talk About The Citizenship Questions” and I said, well obviously they’re gonna try and do some kind of appeal or new lawsuit or new executive order, or something, right!  And instead, they wen to the Rose Garden and said, “okay, we give up, the census will be printed without the citizenship question on it” but Trump promulgated an Executive Order that same day ordering other governmental departments to collect data on illegal immigration and, when asked at that White House press conference, Trump said the very phrase “we need to know citizenship for a lot of things,” and the very first word that left his lips was “apportionment.”

Thomas:          Hmm.

Andrew:          Setting out the congressional districts.  Bill Barr agreed and, here, I have a direct quote (I couldn’t get a direct quote from Donald Trump because

[insert your own reason here]

) but, Bill Barr said, for example, “there is a current dispute over whether illegal aliens can be included for apportionment purposes.  Depending on the resolution of that dispute, this data may be relevant to those considerations, we will be studying this issue.” (End of quote).  That is referring to this lawsuit.  Now, add to that, last month representative Ayanna Pressley, Democrat from Massachusetts, pressured the Deputy Director of the Census about the executive order, and what Pressley said was, “can you confirm for us today that the citizenship data collected pursuant to the executive order will not be used in the bureaus apportionment counts?”  and the witness said “I don’t have any answer, I don’t’ have any belief, I just need to know the mechanics.”  Which is not answer t to the question.  He said “I will give you a written answer within ten (10) days”.  Sixteen days latter [Laughs]

Thomas:          [Laughs]

Andrew:          -the census bureau provided a reply that said, “ the issue you’ve asked about is currently in litigation and we do not comment on ongoing litigation, but the census bureau will fulfill its constitutional mandate to conduct a complete  and accurate 2020 census and enumerate all persons living in the United State of American.” 

                        Now, that is a non-answer because this lawsuit says “persons living in the United States of American should not include illegal aliens.”  It absolutely preserves the right to take that position.  So, you may be thinking, we’re going to fight about the Department of Commerce artificially reducing the census in order to produce its numbers after it tallies.  I don’t think that we’re going to have that fight.  I think we’re going to have a way worse fight.

Thomas:          Oh, cool!

Andrew:          Yeah.  And for that … Some people have already – the Pressley thing has gotten some press, there have been some articles, there’s an NPR article I’m gonna link in the show notes, nobody has gone back to the Franklin case to kind of put this together and so I did!  So here’s what happens when there are two relevant laws with respect to apportionment.  One is 13 U.S.C. § 141.  That, by the way, is what the lawsuit that went all the way up to the Supreme Court that resulted in our narrow victory was over, how the Department of Commerce is to conduct the census, and we got relief, we can continue to get relief, the Department of the Census will not be ordered to weight the census data so as to exclude illegal aliens, they won’t.  That position is “Bananas in Pajamas” level crazy, it has zero chance of this judge ordering it as a matter of law.  So the Department of Commerce is going to prepare, subject to whatever bad actors are there, and accurate count reflecting the census, but then there’s what happens next, and this is a question no one has asked.  The laws is 2 U.S.C. § 2 and, as you might think about from – it’s book number two.

Thomas:          Hmm.

Andrew:          This law goes back to the 18th century.  It’s been amended a couple of times.  And it says, subsection “a” says “on the first day, or within one week thereafter of the first regular session of …” and then there’s the, you know, “the 82nd Congress and each 5th Congress thereafter,” and all of that is just a way of saying we do the census every ten years.

Thomas:          Right, yeah.

Andrew:          So the calculation will be the 117th Congress, so we can just insert that in brackets.  So, within one week of the first regular session of the 117th Congress, the president shall transmit to the Congress a statement showing the whole number of persons in each state excluding Indians not taxed as ascertained under the 17th and each subsequent decennial census of the population, and the number of representatives to which each state would be entitled to under an apportionment of the then existing number of representatives by the method known as the method of equal proportions, no state to receive less than one member.  Let’s parse that out.  The 117th Congress will convene on January 3rd, 2021.  Donald Trump will not leave office until January 20th, 2021-

Thomas:          Ah.

Andrew:          -even if he loses.  So even if Elizabeth Warren is president elect, right?  Even if Trump loses in 2020 it is Donald Trump who, quote, “shall transmit to the Congress” (end of quote) the results of the census, which are directed to then be, quote, “as ascertained under the census.”

Thomas:          Oh.

Andrew:          So then the question is, what does that mean?  And what it means is – this is subsection “b” – as soon as the President transmits the statement each state shall then be entitled to the number of representatives shown on that statement, and then there are provisions within b and c that says, “well if they have more they apportion more this way, if they have fewer they apportion fewer in this way” according, basically, to state law.  So now I wanna talk about the kind of nightmare scenario that I would have Laughed about in 2017.

Thomas:          [Groans]

Andrew:          I think you know where I’m going.  Suppose the census transmits an accurate count to the Whitehouse and then Donald Trump on January 3rd, 2021 decides as an “F You” on his way out to base the calculations on citizenship data and not actual data, what can we do?

Thomas:          Well, the first thing that comes to my mind is, if he can do that why stop there?  Can’t he just get rid of all the representatives from Blue States? [Chuckles]

Andrew:          That is the right answer.  So, you’ve actually seized upon the correct answer because at the extremes, we know there are things the President can’t do, he couldn’t come out and say–

Thomas:          [Laughing] Hold on!  Do we?  Do we know that?!

Andrew:          [Laughs]

Thomas:          How do we know that?!

Andrew:          I feel very confident that the Supreme Court would strike down, for reasons that I’m about to explain, if the President came out and said, “as a result of the next census, Alabama has 400 congressional-

Thomas:          Yeah.

Andrew:          -or 387 congressional districts, and every other state gets 1.” If he were to say that I think that that would rise to the level that I’m about to explain from the Franklin case.  So our task – we have a bunch of different tasks here – but our task is to know and to demonstrate that when the President comes out with an alternative calculation on January 3rd, 2021, that it is the equivalent of doing that.

Thomas:          Yeah.

Andrew:          That it is an equal violation of constitutional rights, and we need to start laying the groundwork and building the record now.  And keep in mind that the results of the apportionment do not take effect until the 2022 Congressional elections, right?

Thomas:          Hmm.

Andrew:          And they’re subject to state laws, so one of the things right now that a state can do, that I really think we need to do is to have, to pass state level laws that say “what we’re gonna do is get a confirmation of the Presidential statement within 30 days after it is transmitted to Congress.”

Thomas:          [Laughs] Yeah, smart.

Andrew:          And, literally build in and be like, “We’re not gonna do anything until a grownup takes office.”  I think that law would be perfectly Constitutional.

Thomas:          Interesting.

Andrew:          It would absolutely pass muster under rational basis, you’d be like “look, all we just wanna do is – historically the census has sometimes had errors or double counting or, you know, has revisited results and we just wanna give him a thirty-day cooling off period to check the numbers and make sure it’s fine.”  I would encourage us to begin getting those laws on the books in various states.  We could also get that kind of injunctive relief in the sanctions cases related to the Department of Commerce that are still pending before the courts in Maryland and in New York and that relief would then basically prevent the Department of Commerce from transmitting any citizenship data over to the Whitehouse so that then – because here’s where the game is gonna be, I’m gonna weave this in with the discussion of the Franklin case – here’s what the Court said in Franklin – so now we go back to the case that you said, “seems okay that Massachusetts lost.” As is often the case, what’s important is not the result but why.  So, the Court said “unlike other statutes that expressly require the President to transmit an agencies report directly to Congress, this law – 2 U.S.C. § 2(a) – does not.”  And then it lists – there are bunch that say “the President shall transmit a report directly” but this doesn’t do that, instead it does not expressly require the President to use the data in the secretaries report, but rather the data from the decennial census.  There is no statute forbidding amendment of the decennial census itself after the secretary submits the report to the President.  Do you need me to read that again?

Thomas:          I – I’m not totally sure – I was trying to puzzle it out.

Andrew:          Yeah.

Thomas:          But I don’t know.

Andrew:          It says “the President’s transmittal to the Congress of the number of seats to be apportioned in Congress is not expressly required to be based upon the Secretary of Commerce’s report.”

Thomas:          Okay, that’s what I thought you said.  Why would it be that way?

Andrew:          Yeah.  Because 1793-

Thomas:          So did the Constitution want … ? Yeah.

Andrew:          Seriously, because no one ever thought that we would have a criminally insane gameshow host as President who would take the census numbers and then manipulate them to –

Thomas:          I don’t know, is that so hard to believe even back then, though?  I mean, that’s weird.

Andrew:          All I know is that is a fair reading of the wording of the statute.  This is not a hack writing a memo.

Thomas:          Yeah.

Andrew:          This is a unanimous opinion of the Supreme Court of the United States.  There is no statute that prevents amending the census itself even after the Secretary transmits his report. 

Thomas:          Hmm.

Andrew:          So what that means is – and again, I’m gonna read more from the opinion – “it is not until the President submits the information to Congress that the target stops moving because only then are the states entitled by that second section to a particular number of representatives.”  Then there’s a little bit of legislative history, apparently Congress originally considered as part of this requiring the Secretary to report the apportionment calculation directly to Congress and instead they said, “no no no no, we want Commerce to go to the President to then go to Congress.”  So, again, legislative history very, very clear that this is the right reading of the statute.  Here’s the truly terrifying part.  As enacted, section 2(a) provides that the Secretary cannot act alone, she sends her results to the President who makes the calculation, sends the final apportionment to Congress, that the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties – that is the President’s duties – are not merely ceremonial or ministerial.  That sentence does not seem ominous to a non-lawyer.

Thomas:          No, I get it.  So it’s not just that he’s like presenting – he’s wrapping up the census report and putting a li’l bow on it and delivering it, it’s that he substantively can affect it and change what’s going in.

Andrew:          Right!  And even though presidents never have, saying that it is not ministerial has two important – it means exactly what you’ve said it does – and it has two important implications for the law.  Number one, it means that the Administrative Procedure Act does not apply to the President, so the standard that was articulated in the Ross Decision with respect to the use of the citizenship question, does not apply to the President.  There is no requirement that he engage in reasonable fact finding.  And, second, because it is not ministerial, because there is the use of some discretion involved, that means you can’t get mandamus.  You can’t require – right?

Thomas:          Hmm.

Andrew:          Like, when the President “shall” do a thing-

Thomas:          Yeah.

Andrew:          -over which he has no discretion, then you can say you could get a writ of mandamus.  You could say, “look, you’ve got the numbers, you must report these numbers on the basis of the numbers and not change or add them” and the Supreme Court, twenty-seven years ago, said “no that lawsuit is going to fail.”  It gets worse.

Thomas:          Alright, well I think we should pause here and then you can tell us how worse-er it gets worse.

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Thomas:          Alright, once again we’re waiting to hear the disappointment.  How does it get worse, Andrew?

Andrew:          So although the President – so we just ascertained in the last segment that if the President manipulates the census findings that is not subject to an APA challenge.  Now, the Supreme Court notes “it may still be reviewed for Constitutionality.”  So, in other words, what stops the President from doing the “Alabama gets 390 Congressional seats” is the fact that that would be blatantly non-constitutional.  The question is, A, whether this Supreme Court would hold that making the apportionment decision on the basis of citizenship is unconstitutional and (we’ll talk about that in a minute) and B, whether there’s anything we can do about it. 

Thomas:          [Sighs]

Andrew:          Let me explain, this is the question of reviewability.  I’m gonna read a little bit more from the Franklin decision.  That Supreme Court overturned the District Court’s opinion, and the District Court awarded Massachusetts the relief, right?  It said, “yeah, you know what?  They definitely shouldn’t have done this thing with the soldiers, Massachusetts should have an additional Congressional seat and we enjoin the President to re-issue his transmittal to Congress based on the actual numbers and give Massachusetts back its Congressional seat.”  Here’s what the Supreme Court said to that:  “the District Court’s grant of injunctive relief against the President himself is extraordinary and should have raised judicial eyebrows” [Chuckles]

Thomas:          [Laughs] You got a pair of judicial eyebrows, Andrew?  You put ‘em on when you’re-

Andrew:          [Laughs] Bill Barr has some impressively bushy eyebrows, but-

Thomas:          But are they judicial

Andrew:          Yeah, no! [Laughs] They’re criminal! 

Thomas:          [Laughs]

Andrew:          We’ve left open the question of whether the President might be subject to a judicial injunction requiring the performance of a purely ministerial duty.  So, okay, maybe if this were just a ministerial thing you could get an injunction, right?  “And we have held that a President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution” and this was before Clinton v. Jones but if this case were to come up today they would add “and we’ve held that a President may be compelled to sit for a civil deposition for conduct unrelated to the performance of his office” so you could bracket and insert that, that’s all true.  But, this is also true, “this Court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.  At the threshold, the District Court should have evaluated whether injunctive relief against the President was available and, if not, whether appellees injuries were nonetheless redressable.”  So here’s what that means.  I think it will be very, very difficult-to-impossible to get injunctive relief preventing the President from altering the results of the census in his apportionment statement.  Now, this does not mean that we should not do that, right?  We absolutely should wage that fight, but I think it is very, very likely that we will not be able to stop it, that any lawsuit to enjoin the President from doing so – and there are none right now – I’m going to talk to lawyers when this episode is over, I’m going to talk to some public interest groups because I think we need to bring this lawsuit – but I think, ultimately, it is a doomed lawsuit based on the language from Franklin.  I think the President will be able to convey his apportionment to the Congress in the last week and a half of his Presidency, and then we will be stuck in litigation for years trying to undo that damage and the standard will be “did that transmittal violate the Constitution?”  Not “was it not based on appropriate evidence.”  Did it violate constitutional rights?  And this past Supreme Court has not been super keen on your individual rights to a vote.

Thomas:          Obviously.  But I guess I don’t understand – how in the world would you find the line between “well, clearly giving Alabama every single seat violates the Constitution” but doing this other thing that’s based on nothing doesn’t violate? 

Andrew:          So that’s why – that’s the exact right question and here’s the answer:  Section 2(a), 2 U.S.C. § 2(a) says that the President –

Thomas:          You can do a certain amount of crime and it’s fine.

Andrew:          [Laughs]

Thomas:          Just not too much.

Andrew:          Not quite!  It says “the President shall transmit a statement showing the whole number of persons in each state as ascertained under the census.”  That’s the relevant language.  So the question is, what counts as “as ascertained under the census.”

Thomas:          Well, I would think it would be whatever was ascertained under the census but that’s just my non-lawyer brain.

Andrew:          But what Trump’s lawyers are going to say is “well if it’s just the number than this is a ministerial exercise” the Supreme Court precedent is very, very clear that there is play in the joints and that you can ascertain – that you can know something – but the statement that you put together, as long as it is rationally based on those numbers, and this is rationally based on those numbers, it’s just those numbers with an adjustment.

Thomas:          Well, yeah, also my Alabama plan is, too!  See, it’s rationally based on those numbers but we rationally subtract all the representatives from every state that’s not Alabama.

Andrew:          [Chuckles]

Thomas:          No, I’m not – seriously!  Like, what’s the difference in logic there?  Just because it’s a “little bit”?  Like, you’re allowed to screw people a little

Andrew:          So the answer is, there is no case law as to what “ascertained” under 2 U.S.C. § 2(a) means, right?  Because the last time this came up the controlling law on this point involved, not a correction to the Presidential statement, involved a President who accurately transmitted the data that was transmitted to him by the Department of Commerce and by the census.  So what the Supreme Court was looking at was, is a statement against – is injunctive relief against the Department of Commerce sufficient to provide the kind of relief that you need?  And the pending lawsuit in Alabama isonly against the Department of Commerce.  It all avoided the Trump problem because nobody thought about there being a disconnect between the information transmitted to the President and the President’s transmission back to the Congress.

Thomas:          I didn’t understand that.  All I heard was “you can get away with a little bit of crime and it’s fine.”  I seriously don’t understand it.

Andrew:          So it’s a question of to whom the relief is awarded.  So the Supreme Court has said “you can get an injunction against the Department of Commerce” but they have effectively said “you can’t get that injunction” or, at least –

Thomas:          Against the President?

Andrew:          – it raises judicial eyebrows, against the President.  So the problem is that there is nothing on that disconnect between handing over the data from Commerce to the President and the President turning around and making the statement to Congress.

Thomas:          [Sighs] Yup! 

Andrew:          There’s no law!  It’s a black box!

Thomas:          I get it.  And I don’t mean to take out my ire on you, I think – yeah, what you’re saying and how you’re presenting it seems like the right analysis, I’m just frustrated that that would – honestly it should just be ministerial!  Like, it sounds like that’s what it should be.   What else would be the point of the whole thing, you know?

Andrew:          It absolutely should be ministerial.

Thomas:          Or if you weren’t going to make that be ministerial, as in if you were going to intend for the President to have some hand in it, you better make explicit what that is and what the limits of it are!  That seems like something our “genius founding fathers who knew everything” should have done?  Right?  Or maybe people in the 18th Century who, uh, owned humans as slaves maybe didn’t know every single possible correct thing to put in our founding documents is that, it could maybe be?

Andrew:          Yeah!  And, again, this is not in our founding documents but –

Thomas:          But I thought it was based off of the – so where is that original thing?  So it’s from the law that was written in 17- something, that’s what you’re saying?

Andrew:          Yup.

Thomas:          Okay, I thought it was from the census in the consti –

Andrew:          2 U.S.C. § 2

Thomas:          Okay. 

Andrew:          And by the way, we should go back – I can’t go back and correct the whole thing – I looked down and I guess this is just because of the way in which tabulation – 2 U.S.C. § 2 was enacted in 1929.  So I’ve been saying 17 –

Thomas:          Well, so this whole thing.

Andrew:          Yeah.

Thomas:          Whoops!

Andrew:          Well, nevertheless it’s still a hundred years old.

Thomas:          Okay, so that does change some of what I just said, but that’s –

Andrew:          It changes some of what you said and I’ll buy the – I misled you, I was wrong.

Thomas:          Andrew was wrong everybody!  Augh, I’m tired of this!  You’re so wrong!

Andrew:          [Chuckles]

Thomas:          Well, this is scary and I predict a doomsday scenario, what about you?

Andrew:          I think it is – I think we need to predict the doomsday scenario.  It is very – look, if I have figured this out, Bill Barr has figured this out, right?

Thomas:          Yeah.

Andrew:          We know that they went and they researched and they came up with stuff and, you know, Franklin is the leading case on this.  There are a couple of other cases that I’ve read that I’m parsing through, we’re gonna continue to talk about this, I am 95% confident that Bill Barr knows about this.

Thomas:          Well, and because Bill Barr is a perfect evil walrus he won’t try to go too far.  Because we would be saved by someone trying to go too far and taking all of the seats from, you know, Blue states, but just doing it enough might survive and therefore that’s the way he’ll do it because he’s good at –

Andrew:          Because it has to rise to the level of a Constitutional violation, not just a violation of the APA, that’s what I keep going back to.

Thomas:          Hmm.

Andrew:          Remember, we won on the Ross case with respect to the census, we did not win on the constitutional claim on that, we won on the Administrative Procedure Act claim, we won that there were insufficient and pretextual reasons being offered for including the citizenship question on the census, but that in the abstract it’s perfectly fine to do that.  That will not be the inquiry with respect to what Trump does in January of 2021.  So to put it all together, here’s what we need to do.  Obviously there’s nothing that we can do if Trump is re-elected.

Thomas:          Yeah.

Andrew:          That is the highest priority.  At the same time, we need to move forward with legal action challenging, seeking relief that prevents the various governmental agencies from transmitting data to the President in connection with apportionment, okay?  That won’t stop the President from doing stuff, right?  But if you can shut off the pipeline that then gives strong evidence to the idea that what the President will do will not be based on the census data.  Remember that’s the key word, is it “ascertained under the census” right?  And if he doesn’t have additional data then it’s hard to say that it’s “ascertained under the census.”

Thomas:          Hmm.

Andrew:          So we need to get relief in that way, and we need to be talking about this.  We need to be asking questions, we need to be following up on the notion of – what are you doing with this?  You said “apportionment,” are you planning to use citizenship data to apportion congressional seats?  And build that record.  We have had, again, mixed success but not zero in terms of building the record where the President – and the Commerce Clause case is a good example of this.  It was, in many ways, the President’s, the Department of Commerce’s, own words that came back to bite them in the ass in that case.  So we need to be building that record.  And Donald Trump is more than happy to talk about it! 

Thomas:          [Sighs]

Andrew:          So that’s what’s coming.  I, again, hey!  This would be the happiest “Andrew Was Wrong” ever!  We get there and it’s just – it’s a fair calculation by the Department of Commerce and a fair transmittal to Congress –

Thomas:          We’ll see, it could be.

Andrew:          – by the outgoing President.  It could be!  But, you know…

Thomas:          Well, now that we’re all suitably scared and angered and depressed, it’s time to go to a nice fun segment!  Let’s have some fun, everybody!  Optimist Prime v. Negatron!

[Segment Intro]

Thomas:          Alright, time to have a little fun because we all know how badly we need it these days!  It’s time for Optimist Prime versus Negatron.  Alright, what’s our topic for debate here today!

Andrew:          We could do it as a formal debate topic, resolved, “The United States Congress Will Impeach Donald Trump”

Thomas:          Oooh!  Well, okay!  Optimist Prime, you have the floor!

Andrew:          Alright, so, Thomas –

Thomas:          Negatron. 

Andrew:          [Laughs] Oh, Negatron!  [Optimist Prime Voice: It is I, Optimist Prime!]  Defender of Freedom and the Rights of All Sentient Beings and I’m here to tell you that the United States Congress is moving towards impeachment.  Everything we said in our episode related to the Mueller, to Robert Mueller’s testimony before the House Judiciary Committee and the House Intelligence Committee, I think has turned out exactly the way we said it did, right?  Which is, okay, this did not necessarily provide a “gotcha” moment, it didn’t provide a great soundbite, in fact the only marginally good soundbite was the answer to Ted Lieu’s question, which Robert Mueller walked back right before his House Intelligence testimony.  That being said, I told you at the time, focus on the underlying dynamics.  Focus on the fact that the House of Representatives got together, they read the report, they got the testimony from Robert Mueller that enabled them to put together the specifics of very clear obstruction by this President, so two weeks ago there were only 107 House Democrats on the record as being pro-impeachment, and as of this record, I’ll link it in the show notes because I bet by the time you listen to this it’ll be even more!  There are 123 House Democrats that support impeachment!  That is more than half, that is significant momentum in the right direction.  And, let’s be clear, the fact that there are 112 remaining House Democrats who have not signed on, that doesn’t mean that they oppose impeachment, right?  That just means that they’re Nancy Pelosi levels of non-committal, right?  So the breakdown on that, this is from two weeks ago because nobody else has continued to move, this is from a Washington Post article, when there were only 107 pro-impeachment that was 121 continue existing investigations and 7 under the category of “haven’t said/unclear” so that is 0 Democrats who’ve said, “oh, yeah, well obviously Donald Trump is an upstanding individual and fine human being and impeachment’s ridiculous.”  Zero are on that!  Very few have said “no comment.”  Almost all of those who are not there yet have said, “I’m not there yet.  I want us to continue to gather information,” and I believe, as we talked about in the introductory segment on this episode, that the House is going to continue to get information, crucial information, from folks like Don McGhan and Hope Hicks and I think we’re moving to impeachment, so, there you go.

Thomas:          [Evil Robot Voice: Is it my turn?]

Andrew:          It’s your turn, Mr. Negatron.

Thomas:          [Evil Robot Voice: Evil Laugh That was so rich!  It is I, Negatron, from the planet – I wanna say … Krypton?]

Andrew:          Oh come on!  You know it’s Cybertron, it is– [Sighs]

Thomas:          [Evil Robot Voice:  Nerd! Nerd alert!! Nerd alert!!  Anyway, Optimist wants to convince you that we’re going to impeach my personal friend and golf partner, Donald Trump.  This, coming from the autobot who tried to tell you Bill Barr had “principle” and “dignity”! Ha ha ha ha ha ha!  That’s rich.  So, a hundred or so Democrats support impeachment and therefore it will happen, huh?  You know what else a hundred Democrats support?  Universal healthcare and a living wage!  You think we’re getting those anytime soon?  Ha ha ha ha ha!  You fool!  Oh, you absolute fool!  Ha ha ha ha!  No, this is all going exactly according to my plan!  You see, it was I who made the Mueller report so long, Bob Mueller was going to make it ten, easy-to-read, straight-to-the-point, pages!  But I said, “No! Make it at least 400 pages!”  Tell me, Optimist, do you really think any American has read your precious Mueller report?  Americans don’t read!  Ha ha ha ha!  Sure, you’ve got a few superstars, your “Elizabeth Warrens’,” your “Andrew Torrez’s” but no one else really knows what is in the report.  They are perfectly content to accept what Fox News feeds them.  No obstruction, no collusion, no impeachment.  Sure, some Democrats might get there but let me remind you of another promise your foolish Optimist Prime made to you rubes!  Remember when we thought the Mueller report was going to sway Republican leaders?  Oh ha ha ha!  I can’t even finish, it’s too funny!  It’s too funny!  There was exactly one Republican who dared have a spine!  You know his name?  Justin Amash.  You know where he is now?  He was blasted out of the Republican party in one of those space rectangles from Superman II!  He and General Zod are caucusing for the independent party now.  There’s no resisting Trump as a Republican, it can’t be done!  Ha ha ha ha!  Side note, though, those space rectangles are terrifying for someone like me.  A lot of my friends have gone that way it’s, uh, a recurring nightmare of mine.  But anyway, I think you all know impeachment is never going to happen and that evil will always triumph over good, and above all else Americans don’t read!  Evil Laughter]

Andrew:          I think we’re gonna get universal healthcare and a living wage in 2021 with President Elizabeth Warren!  So there you go.

Thomas:          [Evil Robot Voice:  Oh, well maybe that’s when you can impeach Trump. Evil Laughter]

Andrew:          So, if we’re done on the debate segment, Negatron, you guys really play golf together?

Thomas:          [Evil Robot Voice:  Yeah, all the time.  Well, I mean, he makes me be the golf cart but it still counts.]

Andrew:          Wait, you mean, he’s sitting on his large sweaty [clownhorn] on you for 18 holes?  Isn’t that, uh, disgusting?

Thomas:          [Evil Robot Voice: Yeah, well, I mean … Oh I know, it is!  Oh, god!  Oh god it’s so gross!  What have I become?!  Cut the mics, turn it off!]

[Segment Outro]

Thomas:          Alright, well now it is time to thank our new patrons on patreon.com/law!

[Patron shout outs]

Thomas:          Alright, now T3BE, can I get back on the saddle, get going in a good direction?  Let’s find out what happened!

[Segment Intro]

Andrew:          Alright, so this was the dreaded real property question, but I have to tell you, I think this is the kind of property question – and maybe it makes it harder that you can sort of piece your way through-

Thomas:          Hmm.

Andrew:          -just from common sense –

Thomas:          And I still got it wrong, awesome! [Laughs]

Andrew:          -trying to do what’s right.

Thomas:          Okay, we’ll see.

Andrew:          Alright, well, let’s look at it!  So what happens?  You’ve got the uncle who owns a piece of property, he tells his nephew, “hey, when I die you get the property.”  The nephew, then, is the bad guy in this, right?

Thomas:          Yeah.

Andrew:          So, before the uncle’s death he goes out and finds a woman and says “I own this piece of property and I’ll sell it to you for $10,000.”  The woman, maybe incautiously, does not conduct a title search of the land, that’s a thing – by the way, that’s just a thing you pay a third party to do, to go down to the Court records to see if there are any encumbrances on the property, I guess to see, apparently, if there’s –

Thomas:          If maybe someone else owns… ?

Andrew:          -a hobbyist industry of people selling stuff they don’t own.

Thomas:          Yeah.

Andrew:          But she didn’t do that.  She says, “okay, here’s my ten grand, I get the deed” and then she went down to the recordation office and recorded the deed.  And, again, you can do that, a title search would then show that you don’t have good title, but the recordation office, they’re not gonna stop you.

Thomas:          How?  I don’t understand, yeah I just-

Andrew:          ‘Cuz they don’t do a search, right?

Thomas:          [Sighs] So then what do they do?  [Laughing] They just record anything anyone wants to do and then later on you’re like “yeah, turns out Thomas doesn’t own Trump Tower, weird!”

Andrew:          [Laughing]

Thomas:          “Well, he recorded it, though, so if there’s any bar questions where you need that, we’re here for you!”

Andrew:          [Laughs]  I mean, we could go down that rabbit trail, but I’m not going there now.

Thomas:          Okay. 

Andrew:          So, she goes down, records the deed, then the uncle finally does die and-

Thomas:          Finally!

Andrew:          -he does, in fact, do what he’s promised.

Thomas:          [Laughing] Jeeze!  Needless cruelty to the uncle there, Andrew!  He finally died already, jeeze!

Andrew:          And now the question is, who owns the land?  You eliminated B and D, which I will tell you are two good eliminations.

Thomas:          Yeah!  I bet!  I bet those are great!

Andrew:          Yeah, so B, “the nephew because the woman did not conduct a title search” um, no, that’s not the requirement here because what the title search would have shown was that the uncle was the owner of the property, but his ownership is only relevant to a dispute between the woman and the uncle, right?  It’s not relevant to the dispute with the nephew.  So her failure to conduct a title search, not relevant here, “the woman, because she recorded her deed prior to the uncle’s death,” you eliminated that, that’s, you know, the “you own Trump Tower.”  The woman may be an innocent victim here, but you don’t get a piece of property just because you’re the innocent victim.  So then the question is, you left A and C, and, again – and you know this, right?  Obviously the answer is C.

Thomas:          Of course!  Yeah, that’s why I chose A!

Andrew:          [Laughing] Right!

Thomas:          [Chuckles]

Andrew:          But the reason is, again just sort of think about it on a merit basis, right?  The nephew’s the guy who’s been the jerk in all this, right?

Thomas:          Yeah, but the law doesn’t – isn’t just, “who’s the jerk they lose,” that’s not how these bar questions –

Andrew:          It’s not always!  But it is in this case!  And when you see-

Thomas:          But I – okay, but what I figured was you would do a separate suit to get back the $10,000 plus, you know, damages or something.  The law could still allow for that, but I just didn’t think the law would allow for, “someone can sell you something they don’t own and then if later on they accidentally own it then you get it” or something.  I don’t know.

Andrew:          So let’s kind of go through all of this, right?  Whenever you see the word “estoppel,” although it’s a goofball legal word, it actual – it’s a “true” cognate.  It means “to stop you”!  [Laughs] And estoppel typically comes up as an equitable doctrine, right?  So it’s to stop you from doing a thing that you otherwise legally might be able to do.  Estoppel by deed in this case applies that when you have a deed that was executed, delivered by a grantor who had no title to the land at that time but represented that they had title and thereafter acquired the title, which is precisely the scenario here.

Thomas:          That’s what happened, yeah.

Andrew:          Now, this scenario is not the scenario whereby that – that gave rise to this doctrine.  This doctrine came about because – not for, like, scumbags like this nephew – but came about because for a very, very long time in an era before computers and in an era before the simplification of U.S. laws, there was genuine confusion as to who owned a piece of property or what.  There would be these complex reversionary interests, and somebody would say “oh, you know, this is supposed to go back to me on the anniversary of the seventh year after the death of my third nephew” and they would think that they owned a piece of property.

Thomas:          Mm-hmm.

Andrew:          But they really didn’t and they would, in good faith, sell it and then at some point in between they would acquire Title to the property and basically all of estoppel by deed is just a “no takesies backsies,” right?

Thomas:          Yeah.

Andrew:          It’s like if you thought you conveyed it, and you didn’t have Title, and then you get Title-

Thomas:          [Sighs]

Andrew:          -we’re just gonna bridge that over.  You conveyed it, too bad!  And that’s what applies here, so…

Thomas:          Yeah, no, that makes sense.

Andrew:          Sorry!

Thomas:          I’m flirtin’ with 50%, I gotta be.  I’m on a bad streak.

Andrew:          54.8%, but only because you were penalized for the-

Thomas:          Impossible question on the live show! 

Andrew:          Yeah.

Thomas:          That one was really hard!

Andrew:          It was not only difficult, but also, you know, the bright lights?

Thomas:          No, look, I gotta be able to perform!

Andrew:          I think you should have a mulligan there.

Thomas:          I need to be able to perform my craft in any circumstances!

Andrew:          Well-

Thomas:          I’ll take it, I’m just-

Andrew:          The biggest stars shine brightly on the brightest stage, right?

Thomas:          Yeah, I thought I nailed that one, I really did.  I was pretty excited about it because I was like, “Ah!  I got this!” and then you’re like, “no, there’s some stupid weird subpoint to a thing that says you’re wrong just ‘cuz we don’t like Thomas”

Andrew:          [Chuckles]

Thomas:          And I was like, “okay.”

Andrew:          I will point out, we had an audience of a hundred people and literally not one person-

Thomas:          Got the right answer, yeah!

Andrew:          -counting the lawyers and law students in the audience –

Thomas:          Yeah!  Yup, yup!

Andrew:          So.

Thomas:          Thank you for making me feel better, I appreciate it.

[Segment Intro]

Andrew:          Alright Thomas, this week’s winner has a strategic tip for you, and that winner is @gangxisiyu who writes “Going with answer C, it has the most real property nonsense nouns in it so must be right.”  Well, @gangxisiyu, congratulations, that is correct and maybe it’s good advice for Thomas to take going forward!  So congratulations for winning this week’s T3BE!

[Segment Outro]

Thomas:          Well, I suck at the bar but, who knows?  Maybe it’ll get back to it.  Thanks for listening, thanks for pledging everybody, and I hope you enjoyed a little good cheer in the Optimist Prime versus Negatron, that was a lot of fun.  Thanks to Negatron for stopping by, I appreciate it, from the planet Krypton.

Andrew:          [Chuckles]  It’s Cybertron!

Thomas:          [Laughs] And we’ll see you – Andrew will we see them “next” Friday?  Or is it?

Andrew:          [Laughs]

Thomas:          It’ll be this Friday, I guess!  We’ll see you this Friday!

Andrew:          It’s the same week, it should be this Friday –

Thomas:          Oh, okay.

Andrew:          But it’s “next” Tuesday.

Thomas:          [Laughing] Okay, we’ll see you then!

[Show Closing]

OA307: Apportionment – The Census Fight Is Not Over

Today’s episode, sadly, reminds you of an entirely new way that you should be terrified. In a “please, tell me that Donald Trump’s lawyers aren’t listening to this” episode, Andrew breaks down a 1990s court decision surrounding a 1920s law to talk about the ultimate endgame for Trump and the census. Is it horrible? Yes. Are you better off being prepared? Absolutely.

We begin, however, with a quick trip up a rare Tuesday Yodel Mountain by examining the transfer of the House Judiciary Committee’s lawsuit seeking injunctive relief against Don McGahn. Was it a “huge victory” for the President that Chief Judge Beryl Howell transferred the case? (No.)

Then, it’s time for a deep dive into the Presidential powers of apportionment and how Donald Trump can potentially do a court-clogging end-run around the Supreme Court’s census decision even if he loses the 2020 election.

After that, it’s time to check out a new segment from Cybertron — the official “Optimist Prime” versus “Negatron” segment on impeachment. Who will stand victorious? Hint: he’s got the energon axe.

Then, it’s time for the answer to #T3BE 139, a dreaded real property question. Did Thomas manage to get it right? Listen and find out!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. You can read Judge Howell’s order in the McGahn litigation here.
  2. If you want to see a sitting federal judge call a DOJ lawyer’s papers “halfhearted,” check out this ruling, and turn to footnote 2 on page 6.
  3. This is the Census Bureau’s non-answer to Congresswoman Pressley, and this is the NPR story confirming that the White House won’t commit on apportionment.
  4. The transmittal law is 2 U.S.C. § 2.
  5. Good news! Here’s the latest tally on impeachment.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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OA306: From Gavin Grimm to Jeffrey Epstein

Today’s episode combines some very, very good news regarding young trans advocate Gavin Grimm… to some rather less good news regarding a proposed rule at the Department of Labor… to some truly bizarre news and a plea for sanity given the ever-changing circumstances surrounding Jeffrey Epstein.

We begin with what looks like the close of a saga that began more than five years ago, when a Virginia public school board — at the instigation of bigots in the larger community — forced Gavin Grimm into “separate but hardly equal” accomodations in his high school. Today, at least, it looks like Grimm has finally won, as we break down a truly monumental decision from the Eastern District of Columbia.

Then, it’s time to look at proposed rulemaking from the Department of Labor that would modify one of the most important Executive Orders of all time: EO 11246, in which Lyndon Johnson required government contractors not to discriminate in their hiring practices. What does Trump propose to do to this EO? Listen and find out… and maybe someday you’ll worship at the Church of Chick-Fil-A. (Seriously!)

After that, it’s time to check in with the conspiracy theories that abound in the world of Jeffrey Epstein. Is there really a sinister motive to think that someone had Epstein killed? Will documents continue to come out that will shed light on what really happened? (Yes.)

We end, as always, with a brand new #T3BE… and yes, it’s another dreaded real property question. If you sell property you don’t own, and later come to own it, have you merely foolishly squandered your tomato juice? Listen and find out!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Click here to read the Gavin Grimm opinion, and here to read Title IX, 20 U.S.C. § 1681.
  2. YOU SHOULD READ THE PROPOSED DOL RULE AND COMMENT HERE.
  3. You can also read the latest Washington Post story suggesting that Epstein’s suicide may have not been.
  4. We’ve uploaded ALL the Epstein docs! You can check out the legal documents: Part 1, Part 2, Part 3, Part 5, Part 6, Part 7, Part 8, Part 10, Part 11, Part 12, and Part 13.
  5. Wait, where are Parts 4 and 9? Oh, they’re over here!

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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OA305: Live From New York!

Please enjoy the audio from our live show at the People’s Improv Theater in New York City, New York!

In addition to #T3BE, we have a deep dive on gun control and the recent Remington cert petition. Then, we have a lot of fun and we have nearly an hour of Q&A! Enjoy.. and come out and see us next time!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

None!

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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