Transcript of OA355: Honest Answers to Impeachment Questions

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 355, I’m Thomas Smith, that’s Andrew Torrez!  How’re you doing, Andrew?

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

Thomas:         Ooooh, doing well doing well.

Andrew:         [Laughs]  

Thomas:         It feels like – in fact, you know what?  I take that back.  I’m doing very well because I’m pretty sure we singlehandedly made a difference for the witnesses.  I say we and by that I mean the royal we of the whole audience and the whole show, because it really feels like the noodle got moved a little bit.

Andrew:         It does.  I would say, look, Mitch McConnell is still trying to move the noodle back.

Thomas:         [Laughs]  

Andrew:         Do not let up.  If you have not yet called your Senators, call your Democratic Senators and praise them, call Mitt Romney and praise him, call Republican Senators who have not spoken out and the script, we’ll continue to use the script and have it in the show notes.  This is super easy, hundreds of you have Tweeted in, emailed us, maybe even a thousand.  A lot of you have done this, this is really, really great.  It’s really important.  Keep doing that.  The other side is doing the same thing so it is important to keep that up.  The vote, if it happens, will happen sometime late on Friday so as you’re hearing this you still have time to call your Senators? and make sure they line up for witnesses.

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OA355: Honest Answers to Impeachment Questions

Today’s episode tackles six questions raised during the first day of cross-examination at the impeachment of President Trump and gives you the real answers, from a legal point of view, minus the spin (on both sides)! We tackle the standard for impeachment, past judges who have been impeached, the will of the Framers, and much, much more!


Remember that Alan Dershowitz has challenged Andrew to a debate, and we’ve accepted! Only time will tell if Dersh chickens out.

Also: please do CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They’ll connect you! For the Republicans, make this simple request (and be polite!):

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That’s all! It’s that easy and you can REALLY MAKE A DIFFERENCE. Thank you!


We begin the show with a brief analysis of John Bolton’s forthcoming book and whether the White House can get a judicial injunction to block publication. (Hint: no.) In analyzing the question, we do a mini-deep-dive into prior restraint, what it means, and why it protects Bolton’s right to publish here.

Then it’s time for the question extravaganza, which covers not only the legal standard for impeachment but the arguments raised by both sides, the question of foreign interference in our elections, how one asserts executive privilege, and so much more! You won’t want to miss this!

After all that, it’s time for a brand-new #T3BE about a crazed, icepick-wielding roommate with bad luck. Will Thomas be able to keep his win streak going? There’s only one way to find out! And remember that you too can play along on 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. Don’t let Republicans misrepresent the articles of impeachment. Article I, Abuse of Power contains allegations that satisfy 18 U.S.C. § 201(b)(2) (the crime of bribery) and Art. II, Obstruction of Congress contains allegations that satisfy 18 U.S.C. § 1505 (the crime of obstruction of justice).
  2. We referenced Zephyr Teachout’s seminal 2009 law review article, “The Anti-Corruption Principle” as well as this analysis by Eisen, Painter, and Tribe on emoluments.
  3. Finally, check out Prof. Cunningham’s article on the original meaning of “misdemeanors” here.

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