OPENING ARGUMENTS 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 you?
Andrew: Yeah, I think that Thomas, you and I are gonna have to do another music episode soon. We still get like three to four Katy Perry comments per week, everybody is just – everybody has an opinion on that. And as of today I got the news that Eminem is suing Spotify, although-
Thomas: Except not, yeah.
Andrew: Yeah, it was later walked back that it was his record label and not him.
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 Football team!
Thomas: Yeah, I was gonna say, add on our Democrat Nomination Fantasy Team and then we’ve got a sure hit! Can’t wait!
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 even know-
Andrew: Yeah, yeah.
Thomas: -that someone was suing on his behalf. But anyway, okay! With that said, we need to get to the Sheldon Whitehouse talk that we’re all promised.
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 Whitehouse?
Andrew: So Sheldon Whitehouse is a Democratic Senator from Rhode Island and he has done a couple of things that I really, really want to shout out here on the show! First, in April of this year he put together a briefing paper, 31 page briefing paper, for the American Constitution Society. That was the group that co-sponsored my debate with Justin Walker in Louisville, they are attempting to sort of carve out a space as the counterweight to the Federalist Society. That briefing paper is entitled “A Right Wing Route, What the Roberts Five Decisions Tell Us About the Integrity of Today’s Supreme Court.” And what he does is go through, his methodology is to look through the past 12 years of Supreme Court decisions beginning with – all on the Roberts Court. So from 2005 through the end of the 2017-2018 term, so it does not count this last Supreme Court’s decisions, which were, as we’ve covered on the show, egregious. The top line finding that Senator Whitehouse documents is – why don’t I throw it this way – if I were to tell you that there were several hundred decisions – 212 to be precise – 5-4 decisions-
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?
Andrew: Yeah! 73! [Laughs]
Thomas: I was pretty close!
Andrew: Yeah, so there were a handful of them. In those 73 cases which Whitehouse divides into four categories: One, controlling the political process to benefit conservative candidates; Two, protecting corporations from liability and letting polluters pollute; Three, restricting civil rights and rolling back anti-discrimination laws; and Four, advancing a far-right social agenda. That is, I think, pretty narrow. You could certainly argue other things have political implications, but those are things that the average person would look at and go, “okay, these are unquestionably political cases that you know what the Democratic result is and what the Republican result is.” You know what the – when it’s gay marriage you know who’s on what side for pro-gay marriage, who’s anti-gay-marriage. Who’s pro-civil rights, who’s anti-civil rights? Of those 73 cases that fit into – So, number one it is remarkable that of those 78 cases that split on ideological lines they split over ideological cases. I would expect a greater number than that just from sheer chance. That’s a mathematician’s write-in, maybe we can get another combinatorics of 212 decisions, what’s the likelihood that you’re gonna get a 5-4 ideological split on a non-ideological decision? I would think it would be greater than 5 out of 212, but maybe I’m wrong. Of those 73 cases, which there’s an ideological split along ideological lines for political issues, the conservative block ruled in an unpredictable way how many times?
Thomas: Unpredictable way?
Thomas: Zero times.
Andrew: Zero! Zero times! And, again, that’s – on the one hand, we’re all kind of cynical, especially show listeners, maybe it’s a “duh” moment. I don’t believe this would be true for any other period in American history.
Thomas: Can you remind me the period again? What years is this?
Andrew: 2005 to the end of the 2017 term, which is Summer 2018.
Andrew: So it does not include the last 2018-2019 term, which of course-
Thomas: As you said, yeah, would be even worse.
Andrew: Yeah. Which would make these numbers way-
Thomas: But I guess I’m saving my reaction for – it seems like you’re starting with one side of the data, so are we gonna find out when it was Democratically decided 5-4 is there some comparable numbers or no?
Andrew: Oh, no no no!
Thomas: Sounds good.
Andrew: I’m not trying to set you up in that way whatsoever. I’m telling you, on face value – and this is worth, I’m gonna link the brief in the show notes, because it contains in the appendix, it’s a 15-page appendix, each and every one of these 73 opinions and these are, again, the kinds of decisions that garner headlines. The kind that you look through and you say, “oh unambiguously, yeah, these are political questions that came up before the Roberts Court and every single time the Roberts Court split 5-4 or 5-3 on ideological grounds in favor of the conservative position.” Okay, so great! Good on Sheldon Whitehouse for doing this, for documenting! And the reason, by the way, for 5-3 is that Elena Kagan, because she was Solicitor General, had to recuse herself-
Thomas: Had to recuse, yeah.
Andrew: -from a disproportionately large number of cases. So as you go through, these are the kinds of cases that we’ve talked about on the show. Town of Greece v. Galloway, Burwell v. Hobby Lobby, Janus v. AFSCME, [Chuckles], Husted v. Randolph Institute, you know a bunch of EPA cases, a bunch of FEC cases, Shelby County v. Holder, that was the voting rights act case, Citizens United, I mean, these are the notorious, topline decisions, and this report continues to point out in each of these cases, in a box on the side, the judicial principle that ostensibly right-wing judges are supposed to have that were disregarded in this case. So Federalism, Originalism, Stare Decisis – it’s a great read. But I wouldn’t be talking about this if this were just a speech that Sheldon Whitehouse gave to the American Constitution Society. Instead, he did something really, really clever, and I want to call it out here. So, put a pin in that report.
Andrew: And now I wanna tell you about a case that is pending for which the Supreme Court has granted Cert. So, because the Supreme Court has been crazily activist on guns there will be a change that was signed into law by Governor Andrew Cuomo on July 16th that changes the State Law that then supersedes the New York City Ordinance. So the New York City Ordinance was about carrying firearms within the New York City limits, it was prohibited, there was a lawsuit brought by gun owners who wanted to transport their guns from a home to a second home, to a shooting range, and they were like, “but to drive there I have to drive on 95, I have to drive through New York City, and I’m gonna be subject to this law.” And so the State of New York said, “you know what, you’re just doing this to try and get another gun case before the Supreme Court, so you know what? We’re gonna change the rule. Fine. You wanna drive with a gun in your car in New York City, have at it, go crazy. “ And that’s in fact what they did.
Thomas: I mean, who’s the joke on, though?
Andrew: Yeah, right.
Thomas: Fine, have all your guns! Are you happy? Yes, actually.
Andrew: Yeah, yeah. I mean, look, it has to be unloaded and locked and separate from the ammunition.
Thomas: Okay, alright, that’s fine!
Andrew: Because that was the procedural posture that this case was brought in.
Thomas: Mm-hmm (affirmative).
Andrew: It was “look at how they’re infringing on our 2nd Amendment, I can’t even carry an unloaded firearm through!” And so Cuomo was like, “you know what? Fine. We’re gonna change the law, we’re gonna supersede the New York City Ordinance and drive to your gun range.”
Thomas: And then conservatives were like, “but we still wanna be mad at you, so…”
Andrew: Yes! That is 100 percent, that is the procedural posture of this case! And I will read you the Petitioners in this case, the New York State Rifle and Pistol Association, their “we just wanna be mad at you even if there is no underlying city Ordinance anymore.” Because the city goes and says, “look, Supreme Court, you ought to dismiss this case as moot now because there’s no law, the Petitioners have no rights to protect,” and this is a splinter group of the NRA, because of course it is. They say, “this Court should thoroughly reject the city’s remarkable request to dismiss this case even if it’s not moot!” [Chuckles] “Throughout this litigation, the city has shown nothing short of contempt for the notion, seemingly settled by D.C. v. Heller and McDonald v. The City of Chicago that the 2nd Amendment protects and individual right to keep and bear arms, not a mere privilege that municipal office officials may deny as they see fit.” Again, this is all from a Supreme Court Cert Petition, mind you. “The city has consistently taken the position that its transport ban does not even meaningfully impact the right to possess a handgun in the home for the purpose of self-defense, which is the only 2nd Amendment right that the city will even (begrudgingly) acknowledge exists.” It goes on like this. So this brief is the NRA speaking to the Supreme Court in a way that I would be somewhat embarrassed to speak in a public, you know, at an Opening Arguments Live show, right? [Chuckles] Basically cheerleading and saying, “hey look, you guys love guns, we love guns, and so even if this isn’t a live case or controversy anymore, I mean New York is pretty anti-gun let’s stick it to ‘em!” That is a fair interpretation of this response back to the City’s request to dismiss out the Cert as being improvidently granted because there’s no more City Ordinance anymore.
So Sheldon Whitehouse, along with Mazie Hirono, Richard Blumehtal, Dick Durbin, Kirsten Gillibrand, filed an amazing Amicus Brief in this case! And the Amicus Brief says, here, I’ll quote it directly. “The judiciary was not intended to settle hypothetical disagreements.”
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.” Is that?
Andrew: Yeah! Yeah! No, that’s a great – look, what this is, this is the partnership between right-wing political activism and a re-shaped right-wing activist conservative Supreme Court and, as we have said, the game going forward in terms of Judicial Minimalism is “embarrass John Roberts.” This brief is the best shot-
Thomas: Ba-dum-tss (joke drum sound) Oh, alright.
Andrew: that I can see, and I mean that from an argumentative standpoint – Right? You know, it’s a gun case.
Andrew: To try and –
Thomas: [Laughing] To take aim at John Roberts!
Andrew: To say, “hey look”
Thomas: Put him right in the sights!
Andrew: [Laughs] Let’s not go “Sarah Palin” here!
Thomas: Fire away. Yeah.
Andrew: But to say, look, if you truly are – if the institutional thesis is correct, if you truly care about the legacy of the Supreme Court you need to know that we’re going to be continuing to make this in the public eye and that we’re going to expand and draw attention and join cases and point out when political groups are seeking to use this Court as a vehicle for activism. I’m very excited about it.
Thomas: Okay, a couple questions.
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.
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Thomas: Alright, my dumb question is this.
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 – okay, gotcha.
Andrew: Yup, so this is why Sheldon Whitehouse is a better human being than I am, he didn’t just give a firebrand speech and document painstakingly the 73, 5-4 cases on political grounds that are indefensible, he then said, “hey look I’ve got this evidence and I’m going to continue to bludgeon John Roberts with this until I shame him into doing the right thing or until we lose” but either way, he’s doing something when I didn’t, so good on Sheldon Whitehouse!
Thomas: I will not let you demean yourself in that way! Does he have a Podcast? No.
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 which-
Thomas: I guess.
Andrew: -he does not want to try and get away with.
Thomas: I mean, he might not be a howler monkey but he’s a zookeeper that’s pretty cool with everything they’re doing.
Andrew: [Laughs] Yeah, that’s exactly!
Thomas: There they go, throwing their feces! That’s their right in this animal kingdom!
Andrew: Yup. And look, right, it’s like having another monkey zookeep, right?
Thomas: He’s just a quieter monkey.
Andrew: Yeah! [Laughs] Exactly! He’s the-
Thomas: [Chuckles] Still in with the monkey agenda.
Andrew: -silverback gorilla zookeeper if we’re stretching this analogy too far, which we have.
Thomas: [Chuckles] Yes.
Andrew: Yeah, I do not put a lot of stock in John Roberts, and I will continue to push back on the, you know, idiotic puff pieces, but I do believe that the best strategy on a macro level going forward-
Thomas: But at least he’s one of those gorillas that can do sign language so we might be able to reach him, is what you’re saying?
Andrew: [Laughs] Right.
Thomas: You can’t reach the other ones, but, yeah.
Andrew: Right. It’s the institutional thesis, right? And, again I’ll just summarize that. It is the idea that John Roberts, while remaining firmly committed to conservative principles and conservative political outcomes – read his dissent in Obergefell, he is no moderate, he is no main-stream Republican, he is firmly committed to right-wing political outcomes – but he does not want his grandkids to read in their AP U.S. History textbook in 2050 that the Roberts Court was, you know, “the demise of the Supreme Court as an independent body.” That’s what I mean by the institutional thesis.
Thomas: But how old are these grandkids gonna be?
Thomas: I feel like, are they finally cracking open a textbook in their thirties?
Andrew: [Laughing] 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?
Andrew: Yeah! This is the connection between Stormy Daniels and Hope Hicks. So. Let’s set a little bit of the timeline, here. We first covered Stormy Daniels March 7th, 2018, that was episode 154. A month later, April 8th, is when the Southern District of New York, supported by the – in the Southern District of New York, the FBI filed for a search warrant for Michael Cohen’s office, home, safe deposit box, hotel room, and two iPhones. That search warrant application would stay sealed until July of 2019. Now, June of 2019, June 19th, 2019, Hope Hicks testified before Congress. As we discussed, this is episode 259, she is absolutely the key person in the Congressional investigations. We broke down all of the letters and subpoenas that were sent out and Hope Hicks had the super set of all of them. Every question that was asked of any of the 73 witnesses that Jerry Nadler was interested in interviewing was asked of Hope Hicks. So she voluntarily agreed to appear before Congress subject to and accompanied by White House lawyers and under an admonition not to reveal Executive Privilege, which she doesn’t have, and at that hearing – we didn’t even cover her hearing on the show ‘cuz she lied, she wouldn’t answer questions, she’s just the worst, right? But as we’ve described in the Yodel Mountain process, there’s so many interlocking things, a month later, July 18th, 2019 is when the Southern District of New York, taking a look at the conclusion of the Mueller Report said, “okay, well, since the Mueller Report is concluded and since the Attorney General’s office has said there are no further outstanding investigations, there’s nobody to prejudice so we’re gonna unseal these files.” They unsealed the Cohen documents that same day, we covered that on this show, that was episode 298, and also the same day Congressmen Nadler wrote a letter to Hope Hicks, to her counsel, that said, “we just got a whole bunch of documents released in the Michael Cohen litigation that appears to be inconsistent with your testimony before the House Judiciary Committee a month ago. As I reminded you” (this is directly quoting from the letter) “As I reminded you at the outset of your interview, anything less than complete candor can have very serious consequences,” it’s a crime.
Thomas: Hold on, hold on, let me just make sure. Is this a sternly worded letter?
Andrew: This is a sternly worded letter.
Thomas: Okay, good! (Sarcastically) Saved! We’re all saved, everybody!
Andrew: Yeah. “I would expect you to clarify this matter before the Committee in very short order, no later than August 15th of 2019.”
Thomas: Or else! [Laughs]
Andrew: Right. So, letter goes through and says “hey, there are massive inconsistencies between the Cohen documents and your lying lies, we’ll give you to August 15th and,” (quote) “I would like to give you an opportunity to clarify your testimony on a voluntary basis prior to our considering compulsory process” (end of quote). So August 15th has come and gone and Hope Hicks’ lawyers wrote a letter that purports to respond and address the inconsistencies. Her lawyer is Robert P. Trout in D.C., not somebody I know. This letter is… amazing. It, [Laughing] I will read parts of this letter to you. Spoiler alert! It does not clarify [Laughs] Hope Hicks’ obviously lying testimony. It does not address any of the major concerns raised by Congressman Nadler, except one that I’m gonna talk about that is truly mind-bendingly bizarre, that I’m kind of shocked has gone unreported in the news. And it doubles down. So I’m going to read, this is from page 2, this is Hope Hicks’ official position, through her lawyers, to the House Judiciary Committee. “Hope Hicks testified truthfully to the best of her knowledge regarding Stormy Daniels and Karen McDougal, she knows precisely when and how she first learned about Karen McDougal, Ms. McDougal’s agreement with American Media and hush-money payments to Stormy Daniels (Stephanie Clifford) it was all from press inquiries.” That’s her position. That position, I am here to tell you, is not remotely tenable in light of the Cohen evidence and I’m gonna put everything together-
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 world-
Thomas: -because it’s Donald Trump, but, like personally I’ve never been banking on that being true. Like, I’ve never been like “alright, there’s definitely a pee tape” or something.
Andrew: That’s a good way of putting it! Right, yeah.
Thomas: Like if I found out tomorrow there is a “pee tape” I wouldn’t be like “Ah! I’m dying of surprise!” I’d be like, “oh, wow, okay.”
Andrew: [Laughs] Right! It wouldn’t be like if there was an Elizabeth Warren tape, right?
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.
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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.
Andrew: Right? And the only reason for Hope Hicks to think that that’s a real thing is because she talks to the President, and so maybe – what’s the best case scenario for the President here? Well, you know, there was no peeing, but – I don’t even know! But you don’t call-
Thomas: Would it be like, Hope Hicks just assumes there’s a tape because it’s Trump? [Laughs]
Thomas: Would the best case just be, well, it’s not based on anything but just because she knows what everybody else knows, that this person is awful?
Andrew: I suppose you could take that position. I do not know why you would need to call the President’s fixer if there’s nothing to fix.
Thomas: Hmm. Good point.
Andrew: So, then, again, this is her defense! This is her lawyer: “She believes that her calls with Mr. Cohen that day would have been about reaching out to Harvey Levin to see if there was more information about the rumored videotape. Whatever else Mr. Cohen was dealing with that day, his conversations with Ms. Hicks were not about Stormy Daniels or any agreement relating to ‘hush money.’” Okay. There is other – and I don’t have the time to go point-by-point with – I would just encourage our listeners to put side-by-side the bullet points raised in Nadler’s letter with the non-responsive, non-answers in the Hope Hicks letter, but I do want to deconstruct this point on October 8th, 2016, because I’ve read the Michael Cohen documents and they flatly contradict – you cannot read the search warrant affidavit signed by – and this part is still redacted, we don’t know the FBI operative, but this is a 269 page search warrant affidavit, I’m going to upload it to the show notes, it includes all of the exhibits, it is lightly redacted to protect certain individuals, but it’s not redacted for Trump, it is not redacted for Hicks, it’s not redacted for Michael Cohen, it’s not redacted for any ongoing matters. Beginning at page 40 is where this flatly contradicts – and, again, this is a signed affidavit submitted under penalty of perjury by an agent of the FBI in support of a search warrant for the President’s lawyer. Beginning on page 40 it sort of sets up, “my review of public sources that led me to confirm independently that Stormy Daniels was being shut up in October of 2016” then, page 41, “from my review of telephone toll records and information produced pursuant to a previous warrant, I have learned that in the days following the Access Hollywood video Michael Cohen exchanged a series of calls, text messages, and emails with Keith Davidson” who was then Stormy Daniels’ lawyer, that’s the patsy lawyer that-
Thomas: Oh, yeah, I forgot about that!
Andrew: That Cohen and AMI arranged-
Thomas: She sure can choose ‘em, by the way! Because it was him then it was Avenatti, ooph!
Andrew: Well, Davidson was sort of forced on her, so-
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 transcribe that.
Andrew: So next, based on our call records, this was the first call Cohen had received or made to Hicks in at least multiple weeks. And, in fact, Cohen and Trump spoke about once a month prior to this date, specifically prior to this call on October 8th, Cohen and Trump had spoken once in May, once in June, once in July, zero times in August, and twice in September. So, again, that’s really, really important for understanding the background, too. It’s not as though Michael Cohen had – it’s not like the SNL sketches where Ben Stiller can call up-
Thomas: [Impersonating] Oh, please Mr. Trump! Ah!
Andrew: [Chuckles] Those are so great! But they don’t talk every day, they talk once a month, and he talks to Hicks never, so that’s a pretty big coincidence, but let’s keep going through the affidavit. Ten minutes after the call ended, Hicks and Cohen spoke again for about two minutes. So, get Trump on the line, is there a pee tape, yeah there is-
Thomas: [Laughs] [Disgusted noises]
Andrew: -we’ve gotta silence Stormy Daniels here, don’t we? Yeah, do whatever you can, okay, I’m getting’ off now, then Hicks and Cohen – alright, what are we gonna do about this? Next paragraph, “At 7:39 pm, immediately after the second call with Hicks ended, Cohen called Pecker” (President of American Media) “and they connected for 30 seconds. Four minutes later Cohen called Pecker again and they spoke for more than a minute. Three minutes after ending his call with Pecker, Cohen received a call from Dylan Howard, noted above, the Chief Content Officer of AMI, and they spoke for a minute. According to toll records it does not appear that Cohen and Howard spoke regularly prior to October 8th, 2016, it had been over a month since they had called each other.” Okay. Then, as soon as that ends, a few minute later, “7:56 pm, Cohen calls Hicks and they talk for two minutes. At the same time this call ended, Cohen receives a call from Pecker, they spoke for two minutes. At 8:03 pm, three minutes after ending his call with Pecker, Cohen calls Trump and they speak for 8 minutes.” So we can just stop there. There’s a little bit more that I wanna get through, but it is not – and, again, remember when you are talking about proving perjury you are talking about proving the existence of a fact that exists in someone’s head, right?
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 opportunity.”
Andrew: That’s pretty gross. “Spoke to the client this AM and they’re confirmed to proceed with the opportunity. Thanks Dylan, over to you two.” And then at 12:30 in the afternoon, Davidson sends Michael Cohen a text message that says “Michael, if we’re ever gonna close this deal in my opinion it needs to be today, -Keith” and in fact, that deal was signed on October 10th, 2016. That is when they signed the (quote) “Side Letter Agreement” that contained the confidential settlement agreement and mutual release between Peggy Peterson and David Dennison. Oh, and as a slight sidebar there, the FBI agent here correctly refers to the Stormy Daniels, Peggy Peterson David Dennison agreement as a settlement agreement! And not as a nondisclosure agreement. So, I dunno if the FBI listens to the show, I would really love to think that.
Thomas: Maybe other people just know law stuff?
Andrew: Maybe they do, that would be nice!
Thomas: Did ya ever consider… No, they probably listen!
Andrew: I would, that’s obviously the most parsimonious explanation.
Andrew: So it is not credible, and this letter is not credible, that – no, I just happened, I am named in emails, I am listed as participating in resolving this process, but no, nobody absolutely on October 8th when Michael Cohen’s hair is on fire and he is staying up until 3:30 in the morning trying, in a panic – it’s not hard to imagine what’s going through Michael Cohen’s mind, right? The Access Hollywood tape is out, all of a sudden Stormy Daniels is gonna break, how do I shut that up? I’m up for 20 consecutive hours, I finally think I’ve reached some kind of agreement and I’ve talked to Hope Hicks four times over this time frame, but, definitely, oh no! We talked about a totally unrelated-
Thomas: “Can you believe Ned Stark died?”
Andrew: [Laughs] Right!
Thomas: That’s what we’re talking about.
Andrew: That is an almost impossible position to have to argue in a Court of Law and that’s where this is headed. Hope Hicks’ lawyer has doubled down and said “nope,” I read you that on page 2, “she learned about Stormy Daniels from press inquiries.” That, as far as I can tell, all of the evidence suggests that that is 100 percent a false statement, and she’s headed back to Court. And I can’t wait to see what happens, I continue to believe that the key at the whole of all of this is gonna be Stormy Daniels, so there you go!
Thomas: But, okay, bottom line it, dumb it down for me here, what’s the best that can happen? She just says “okay, actually I did know something” and then what?
Andrew: And then she can be held in contempt of Congress for lying to Congress, she can be charged with perjury, there’s a ton of leverage that Congress will have over Hope Hicks as a result of her having had her lawyers draft this letter that is-
Thomas: That was obviously a lie.
Andrew: Very obviously-
Thomas: But can this get back to Trump, or are we just punishing – are we just getting the people at the fringes here?
Andrew: Right, well that goes back to where I led off this segment, which is Hope Hicks got the most extensive subpoena. Hope Hicks, as far as Jerry Nadler is concerned, knows where the bodies are buried. So, yeah, I believe it can go back to Trump.
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 Judiciary Committee.
Thomas: Ya know-
Andrew: As soon as that is filed we’ll report on it.
Thomas: We’re obviously at the end of the episode, but I’m just thinking about it. Why hasn’t there been any sort of hearing or testimony or anything in what feels like a month? Can’t we get going on this?
Andrew: Right, because – no, seriously, it’s because they’re on summer vacation.
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 stuff.
Andrew: And that’s – we can expect them to do that.
Thomas: That’s fine! It’s not like the state of our Country’s at stake or anything.
Andrew: I get it! Look, like-
Thomas: Take your vacation.
Andrew: -it’s why I said it that way-
Thomas: No, yeah I’m not-
Andrew: -because the argument of “hey, maybe don’t go to the beach while our country is on fire” is a fair argument.
Andrew: But, again, ya gotta get re-elected and-
Thomas: Hey, you know what would be a good re-election ad? Grilling some Trump crony.
Andrew: That’s true, that’s a really. I dunno, Negatron wins again, I have no answer.
Thomas: Yeah, let’s get on it Democrats! Come on! Okay, well, that’s all the time we have, we’ve got to thank our new patrons over at patreon.com/law!
[Patron shout outs]
Thomas: So it’s time for another iteration of Thomas Loses the Bar Exam, here we go, how’d I do?
Andrew: Do you want the answer first or you want the analysis first?
Thomas: I don’t care.
Andrew: [Laughs] Okay.
Thomas: Just get through it.
Andrew: This is the continuing pattern, you analyzed the question 100% correctly, narrowed it down to the two right choices, and then picked the wrong one.
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?
Thomas: Yeah. That’s what I was thinking.
Andrew: Yeah, it’s their product. Products liability is strict liability. You do not have to prove negligence, you do not have to prove breach of a duty of care.
Andrew: You just have to prove-
Thomas: That’s what I was thinking!
Andrew: -they made the product that injured you.
Thomas: But I guess it’s not that, yeah.
Andrew: It’s not because there’s nothing wrong with the product here, right?
Thomas: Yeah, yeah, yeah.
Andrew: It’s not like it was a defective banana. [Chuckles]
Andrew: If it were that would be a really interesting question.
Thomas: Dangit! I got one of these peely bananas! They’re supposed to-
Andrew: [Laughs] Right! The banana worked exactly the way the banana was supposed to work, right?
Thomas: [Laughs] Yeah. Alright.
Andrew: Three grooves on the outside, two on the inside, perfectly fit for the human hand – sorry, I’m slipping into Ray Comfort!
Andrew: So the fact that the banana was offered for sale is not sufficient, then the question is, it only leaves B so you know that’s the right answer, the reason why it is ordinary negligence and not res ipsa loquitur, “the thing speaks for itself” which we’ve talked about before, where just showing that there’s a banana peel is enough, has to do with the condition of the banana peel, right?
Thomas: Mm-hmm. (Affirmative)
Andrew: The fact that it’s a pristine, fresh, and unblemished banana peel means that it wasn’t on the floor for a long period of time, so there is not enough evidence to suggest, just from that fact, that that would be negligent by the store. Imagine you have a prankster who put the banana peel on the floor and then the plaintiff slips on it, right?
Andrew: If the plaintiff – if the defendant uses a reasonable standard of care to keep the floor free of banana peels and somebody else surreptitiously does a “Mario Kart” kind of thing, right?
Thomas: That would be something that would come out in the trial in front of the jury, I would think.
Andrew: [Laughs] But it says, “these are the only facts in evidence,” right?
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 in Discovery-
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, yeah. Okay.
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 back-
Thomas: Who knows? Maybe I’ll get back on that horse!
Andrew: -back on the winning side again!
Thomas: Alright, well, why doesn’t future Andrew hop in that, well, current Andrew can hop in that time machine, become future Andrew, and tell us who this week’s big winner is!
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 Response Friday!
Andrew: See you then!