Transcript of OA366: Your Guide to the Coronavirus!

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 366.  I’m Thomas Smith, and, uh, we can’t have nice things Andrew.  How’re you doing?

Andrew:         [Sighs] Ahhh, yeah.  It’s not a great day for me, although I am wearing a full gas mask so that will prevent me from-

Continue reading “Transcript of OA366: Your Guide to the Coronavirus!”

OA366: Your Guide to the Coronavirus!

Today’s episode breaks down force majeure clauses in contracts and takes a look at what might happen in the next few weeks as the world prepares to deal with COVID-19 coronavirus. Along the way we also tackle the news of the week, including the baffling decision out of the DC Circuit not to require Don McGahn to testify. You won’t want to miss this episode!

We begin, however, with some recurring Vice Presidential/line of succession questions and take a mini-deep-dive into the absolutely bonkers elections of 1796 and 1800 that produced the 12th Amendment, and what it says about vice-presidential qualifications.

After that, it’s time for our main segment on coronavirus, which includes a deep dive into various cases where contracts have been broken due to “acts of god.” Is a global pandemic an “act of god?” Listen, find out, and you’ll soon be able to whip out four-part tests if your hotel tries to cancel your room due to coronavirus scares.

Then, it’s time to pick apart the D.C. Circuit’s 2-1 baffling opinion that the House Oversight Committee lacks standing to go to a court to enforce its subpoena over Don McGahn. This is technically an “Andrew Was Wrong,” because Andrew did not imagine that any judges with functioning brain cells could have authored an opinion this bad. Find out what’s next!

After all that, it’s time for a brand new Thomas Takes the Bar Exam involving a tainted witness identification. And remember that you too can play along by sharing out this episode on social media and using the hashtag #T3BE.


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

Show Notes & Links

  1. For all your Vice Presidential qualification questions, check out the 12th Amendment!
  2. Here’s the D.C. Circuit’s decision in McGahn, and we also referenced Raines v. Byrd, 521 U.S. 811 (1997) and, of course, Opening Arguments’s good friend Richard Nixon in United States v. Nixon, 418 U.S. 683, 696-97 (1974).
  3. Finally, you can read Josh Chafetz’s law review article, “Executive Branch Contempt of Congress.”

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-Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials!

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Transcript of OA347: Pennhurst and the Voter Purge in Georgia

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 347, I’m Thomas, that’s Andrew.  How’re you doin’ Andrew?

Andrew:         I am fantastic, Thomas, how are you?  Did you have a good holiday?

Thomas:         Okay, I’ll bite.  What day is it?

Andrew:         [Laughs]  

Thomas:         I don’t – I have no idea.  We’re recording so I guess we both must think it’s Thursday to some extent, right?  But is it Thursday?

Andrew:         [Laughs]  

Thomas:         My kids were home yesterday, doesn’t that mean it’s Monday?  I don’t [Sighs]

Andrew:         I think “what day of the week is it?” is gonna replace “I keep writing 2019 on my checks”

Thomas:         [Laughs]  

Andrew:         Because nobody writes any checks anymore.

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OA347: Pennhurst and the Voter Purge in Georgia

Today’s episode tackles a bunch of important developments in the new year — and not all of them are even Trump-related! Our main segment features a deep dive into the recent voter purge decision in Georgia and what that has to do with the Eleventh Amendment and the Pennhurst doctrine. We also tackle the latest scare meme regarding 2020 and update you on all the developments in pending litigation regarding Donald Trump. Buckle up, it’s going to be a fun ride!

We begin with a quick off-the-white-board note about the “$100,000 verdict” in the Alex Jones defamation lawsuit that isn’t what it appears to be.

After that, we take a look at a recent meme that’s circulating regarding 2020. Should you be concerned about the legal implications of writing 1/1/20 on your documents?? Why or why not?

Then it’s time to check in on the status of several pending cases involving Congressional subpoenas, including a decision that’s being mischaracterized as a setback for impeachment (it isn’t), and a bunch of irons that are still in the fire.

Then it’s time for our deep dive into Pennhurst and the recent denial of injunctive relief to Stacey Abrams’s organization dedicated to restoring the voter rolls in 2020 in Georgia. Find out what happened & what’s going to happen next.

After all that, it’s time for a brand-new #T3BE in the New Year: can a bakery tell a flaky flour supplier to go clownhorn itself? Don’t forget to play along via social media!


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

Show Notes & Links

  1. Click here to read the New York Times article about Alex Jones’s lawsuit.
  2. The article we referenced on FOIA documents connected to OMB from Kate Brannen at Just Security is here.
  3. Filings: click here to read the Order of Dismissal in the Kupperman lawsuit, and here to read the Court’s Order denying injunctive relief in the voter registration lawsuit.
  4. Oh, and feel free to brush up on your Supreme Court decisions by reading Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).

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Transcript of Opening Arguments Episode 312 – Gerrymandering in North Carolina

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Topics of Discussion:

[Show Introduction]

Thomas:         Hello and welcome to Opening Arguments!  This is episode 312, I’m Thomas Smith, that over there is Andrew Torrez.  How ya doin’ Andrew?

Andrew:         I am doing fantastic.  We just finished up our OA Fantasy Football draft, I figured I’d mention that now so that we would lose several thousand listeners who are like “I don’t want to hear about your fantasy football team” But-

Thomas:         Well the other ones are just sad that they couldn’t get in.

Andrew:         That’s right. [Laughs]

Continue reading “Transcript of Opening Arguments Episode 312 – Gerrymandering in North Carolina”

OA312: Gerrymandering in North Carolina

This week’s episode breaks down the 357-page state court gerrymandering decision in North Carolina striking down that state’s legislative districts. We explain in depth exactly what happened — and exactly why cases like there are the future for political gerrymandering claims in light of the Supreme Court’s decision in Rucho v. Common Cause.

We begin, however, with a couple of Andrew Was Wrong segments, including a sad update on Gavin Grimm as well as feedback from the entire state of Idaho!

Then, it’s time for a deep dive into the recent ruling in North Carolina, which includes an analysis of both the facts — featuring “Republicans and Non-Hispanic Whites” Dr. Evil stand-in Thomas Hofeller — and the law. If political gerrymandering is now perfectly okay by the U.S. Supreme Court, what can we do? Listen and find out!

After that, it’s time for a brief Yodel Mountain update regarding Don McGahn, as well as a Jeffrey Epstein update.

And then it’s time for #T3BE on the formation of contract: when, exactly, does a contract to buy a truck get made? You won’t want to miss this one.


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

Show Notes & Links

  1. We last discussed Gavin Grimm’s case in Episode 306.
  2. Click here to check out the populations of the various states, including Idaho.
  3. This is the North Carolina gerrymandering opinion.

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-And finally, remember that you can email us at!

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.

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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.

[Advertisement – to get a trial month for $5.00]

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!

[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!


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

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:

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-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!

Download Link

OA290: Executive Privilege, Hope Hicks & Don McGahn

Today’s episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are — spoiler: some aren’t terrible! — and what’s next for the Congressional Democrats.

First, though, we begin with coverage of the American Legion v. American Humanist Ass’n decision from last week; that’s the Bladensburg Cross case that we’ve discussed at some length on this show. How bad is this decision? (Bad.)

Then, it’s time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration’s claims regarding executive privilege “over the last five decades.” As you’ve come to expect from OA, we tell you what the administration got right… and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful testimony out of Hope Hicks or Don McGahn, you need to listen to this show.

Then, it’s time for the answer to TTTBE #131 about the propriety of a specific question during cross-examination of a witness who testified as to the defendant’s “reputation for honesty.” If you love the Federal Rules of Evidence — and really, who doesn’t? — you’ll love this segment.


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

Show Notes & Links

  1. We first discussed the Bladensburg Cross case in Episode 256 with Sarah Henry of the AHA, and then got first-hand testimony about the oral argument in Episode 274 with Monica Miller.
  2. Click here to read the full Supreme Court opinion in American Legion v. American Humanist Ass’n. If you missed our coverage of Masterpiece Cakeshop, check out Episode 180.
  3. We first broke down the importance of Hope Hicks to the Congressional investigations in Episode 259; and you can click here to read the letter and subpoena she received from Rep. Nadler.
  4. NPR confirmed that Hicks’s testimony was carefully managed by White House lawyers (and was therefore worthless).
  5. Click here to read Rehnquist’s 1971 memorandum on executive privilege, and click here to read how President Clinton’s OLC cited that memo 25 years later.
  6. Finally, this is Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (2008), the district court opinion Andrew breaks down on the show.

-Support us on Patreon at:

-Follow us on Twitter:  @Openargs

-Facebook:, 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!

Download Link