EPISODE # 309
Can Stormy Daniels Bring Down Hope Hicks?
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-
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
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.
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?
Andrew: I dunno, but yeah.
Thomas: That way no one can listen!
Andrew: Then we can talk about our Fantasy
Thomas: Yeah, I was gonna say, add on our
Democrat Nomination Fantasy Team and then we’ve got a sure hit! Can’t wait!
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.
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
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.
Thomas: Everybody’s chanting “Shel-don
White-house! Shel-don White-house!”
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?”
Thomas: So, Andrew, who is The Sheldon
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-
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!”
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.
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.
Andrew: Of those 78 cases, how many do you
think had clear political implications?
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?
Thomas: Zero times.
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.
Andrew: So it does not include the last
2018-2019 term, which of course-
Thomas: As you said, yeah, would be even
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
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.
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…”
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
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-
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.
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.”
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.
Andrew: To try and –
To take aim at John Roberts!
Andrew: To say, “hey look”
Thomas: Put him right in the sights!
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
Thomas: Okay, a couple questions.
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.
Andrew: And then, I discussed the procedural
history. The State signed a bill into
law that supersedes the City Ordinance.
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-
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.
[Commercial – free trial to Beach Body on Demand when you text “OA” to 303030]
Thomas: Alright, my dumb question is
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.
Thomas: I didn’t realize he actually also –
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.
Thomas: I don’t think.
Andrew: There we go! We’ll team up, so…
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.”
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.
Andrew: But he has some sense of things beyond
Thomas: I guess.
Andrew: -he does not want to try and get away
Thomas: I mean, he might not be a howler
monkey but he’s a zookeeper that’s pretty cool with everything they’re doing.
Yeah, that’s exactly!
Thomas: There they go, throwing their
feces! That’s their right in this animal
And look, right, it’s like having another monkey zookeep, right?
Thomas: He’s just a quieter monkey.
[Laughs] Exactly! He’s the-
Still in with the monkey agenda.
Andrew: -silverback gorilla zookeeper if we’re
stretching this analogy too far, which we have.
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
Thomas: You can’t reach the other ones, but,
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
Thomas: I feel like, are they finally cracking
open a textbook in their thirties?
Yeah, well… you know, whatever.
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.”
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!
Thomas: Alright, I’ve been waiting so
long! What’s the update, what’s going on
with the Stormy Daniels stuff?
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!
“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]
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-
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?
Andrew: All of those allegations struck me as
just not …
Thomas: Well …
Thomas: Not, yeah.
Andrew: Go ahead.
Thomas: They’re not the craziest thing in the
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.”
Right! It wouldn’t be like if there was
an Elizabeth Warren tape, right?
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?
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.
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?
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.
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
Andrew: Well, Davidson was sort of forced on
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.
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.
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)
Thomas: Yeah, just barfing noises and –
Andrew: [Laughs] I would not want Heather Loveridge to have to
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-
Oh, please Mr. Trump! Ah!
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-
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?
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”
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.
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.
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
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
Thomas: Maybe other people just know law
Andrew: Maybe they do, that would be nice!
Thomas: Did ya ever consider… No, they
Andrew: I would, that’s obviously the most
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?”
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.
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!
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
Thomas: Ya know-
Andrew: As soon as that is filed we’ll report
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.
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.
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
Andrew: And that’s – we can expect them to do
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.
Andrew: But, again, ya gotta get re-elected
Thomas: Hey, you know what would be a good
re-election ad? Grilling some Trump
Andrew: That’s true, that’s a really. I dunno, Negatron wins again, I have no
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?
Andrew: Do you want the answer first or you
want the analysis first?
Thomas: I don’t care.
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.
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?”
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?
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.
Andrew: You just have to prove-
Thomas: That’s what I was thinking!
Andrew: -they made the product that injured
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
Andrew: If it were that would be a really
Thomas: Dangit! I got one of these peely bananas! They’re supposed to-
Right! The banana worked exactly the way
the banana was supposed to work, right?
Andrew: Three grooves on the outside, two on
the inside, perfectly fit for the human hand – sorry, I’m slipping into Ray
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
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?
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.
But it says, “these are the only facts
in evidence,” right?
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-
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
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.”
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-
Thomas: -but I see what you’re saying now,
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%.
Andrew: 76 for 141, but-
Andrew: -you know, we’ll get – you’ll get
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!
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!
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
Andrew: See you then!