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Topics of Discussion
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 318. I’m Thomas, that’s Andrew. How’re you doin’ Andrew?
Andrew: [Chuckles] I am doing fantastic, Thomas! I think I said earlier on Twitter, I’ve had some good days in my life, you know? The birth of my child, my honeymoon, the trip we took to Australia … today is way up there with those days! [Laughs] How are you doing?
Thomas: Because we are finally going to be doing the eminent domain deep dive!
Andrew: That’s right!
Thomas: Yes!
Andrew: Oh, and I’ve got a long segment on baseball law! No. [Laughs]
Thomas: Yeah! [Laughs] Oh this – hold on! I just checked, Andrew. The news, it says – all the news. Maximum news. Actually Google News just says “maximum.” It’s full.
Andrew: [Chuckles] Yeah, my Google alerts just decided to merge into one á la the Constructicons forming Devestator-
Thomas: [Laughs]
Andrew: -and then they shot me with the eye lasers. Literally I wish I could show you, I have this, like 17 oz, in addition to my delightful Opening Arguments mug which I use when I need regular coffee, I also have a – it’s basically an oil drum with a handle on it and I have been mainlining coffee trying to keep up with everything.
Thomas: You are Optimist Prime, so you do just drink oil out of it, actually.
Andrew: Yes! [Laughs] Well that too!
Thomas: Wow! Lots to get to!
Andrew: Yeah, today’s a pretty big deal! [Chuckles]
Thomas: Lots to get too.
Announcements
A little housekeeping, we’re probably going to go long on this one because there’s so much to get to. Andrew sent me a manifesto that he wrote of his notes and [Laughs] it’s long. So here’s what we’re gonna do. We’re gonna give you all the good stuff we can in this episode and then we’ll probably end up going extra for patrons because we love our patrons and it’ll be a chance to get our patrons some extra good stuff.
So if you wanna take part in that you know how to do it, go to patreon.com/law, pledge as little as $1 and you get all the bonus extras. We’re truly are not going to be able to fit it all in. But! Just wait, there’s more! That’s not all, we’re also going – we’re not gonna “try” we’re 100% getting patrons Tuesday’s show early because we also plan on doing an impeachment guide, an impeachment deep dive that we need right now to inform us about what’s going on now and we will get that out to patrons early.
We love our patrons so much that in this great time of need, [Chuckles] in this time when all the Trump news is happening we are gonna get ya a bunch of extra stuff and we’re gonna get you that stuff early! So that’s our thanks to you and, yeah, I think that’s the agenda.
Did I miss anything on the housekeeping?
Andrew: No, the only thing I would add is I also want to share out, we do this, we have a newsletter level of patrons where from time to time I’ll put up my show notes or other direct communications. I have [Laughing] 13 single-spaced pages of research here that I do want to share with everybody, so all of our patrons at any level will also get my show notes from this episode which are [Laughing] uncensored, which don’t have clownhorns in them, which document everything that went into this episode.
Thomas: Would you say they’re a transcript or would you say they are a memorandum-
Andrew: [Laughs]
Thomas: -of your…
Andrew: Well that is gonna be issue number one! So, why don’t we-
Thomas: Alright. But before we get to that I do just – apologies, gotta do a little live show update. Live show in L.A., October 12th.
A couple things, we keep getting a bunch of questions I think it would be worth answering. If you were thinking about buying tickets but maybe you’re just by yourself, we got a lot of messages from people who are like “hey, I’m by myself, I don’t know if for the VIP or for the platinum, how weird is it to just come by myself?” Totally fine! It is absolutely a welcoming fun place.
A lot of people are talking about, who maybe have a little social anxiety, from my understanding of how everything has gone in the past and how the last event went I think everybody was more than welcome, we had a good time, it’s a low-pressure fun environment that you can kinda participate and talk with us as much or as little as you want so absolutely do not worry if that is you, feel free to come along. It’ll be a ton of fun I promise.
Then the one other note I’ll say is, there’s currently only one platinum ticket left. If there is a couple out there who was planning to come to platinum but it was like “oh no there’s only one left now,” feel free to message me and we can free one up for you if that’s gonna be the make or break because an odd number of people bought tickets, so we just want to make sure that if there’s a couple that was gonna come that now can’t because there’s only one ticket, we don’t want that to stop you. We can make room at the table for one more person. It might be [Laughs] one of those awkward chairs and a weird leaf of the table, but we’ll figure it out.
Andrew: Sure, I can cook more! Why not? Just add another 5 courses onto what I’ve gotta do!
Thomas: [Laughs]
Andrew: No, no, no! I would love that.
Thomas: I absolutely made this decision unilaterally but I stand by it! [Laughs]
Andrew: [Laughs] I will be the one who’s a mess in the kitchen trying to get everything together! But no, I’m very excited about it.
Thomas: Okay, so that’s a little announcement, that’s almost sold out, but by the way VIP tickets, still plenty of those available and that was a ton of fun last time. A hangout with us after the show for hours we talked, we hung out, we had fun.
So L.A. folks and anybody conceivably in the near [Chuckles] area because we’re not coming back to this area for who knows when. Come to the show October 12th! Okay! That said, it’s time to get to the show of all shows, approaching the upper stratosphere of Yodel Mountain, possibly with a view of the peak of Yodel Mountain. Brian, hit it with the Yodel Mountain!
Yodel Mountain
[Segment Intro]
Thomas: Okay Andrew, you just go.
Andrew: [Laughs]
Thomas: I don’t wanna – there’s so much, just go!
Andrew: Yeah. Let me give you the topline summary first because I don’t want us to get so caught up in the details that we’re not giving people the digestible 30-seconds. Out of everything we know as of 1:30 pm Eastern Standard Time on Thursday, September 26, 2019, here’s what we know and here’s the big deal. Acting Director of National Intelligence Joseph Maguire – [Laughing] I keep wanting to call him Tobey Maguire, if I do that in this show forgive me! Spiderman testified today.
Thomas: I’m pretty surprised you didn’t go Mark McGwire given your baseball law.
Andrew: Yeah, ‘cuz it’s not spelled like Mark McGwire, so-
Thomas: Oh, okay.
Andrew: It’s spelled exactly like Tobey Maguire.
Thomas: [Laughs]
Andrew: [Laughs] So Spiderman today 100% changed his story. Nobody in the news media is really carrying it this way. I had a little bit of a back and forth with Tarn Summerville on Twitter who engaged in good faith. So I want to explain this as clearly as I can, because it’s really, really obvious to me, I don’t wanna oversell it.
In our bonus episode we included the transcripts to council for Acting Director of National Intelligence who wrote the excuses back to Adam Schiff as to why the whistleblower Complaint was not being forwarded to Congress and why Maguire was not planning to testify before the House Intelligence Committee, which they eventually worked out would be this morning. Those letters are unambiguous in my view. So I’m gonna read you, for example, from page 3 of the September 13th letter, which says “We do not understand the statute to require the Director of National Intelligence automatically to forward every Complaint to Congress even where the Complaint falls outside the plain terms of the underlying statutory procedures. We do not understand the statute to foreclose the DNI from reviewing information in such Complaints and withholding confidential executive branch information.”
That is the only reference, put a pin in that, that is the only reference in both letters to the executive branch and to confidential information. Instead, what these letters say – and I’m gonna read the most recent, which was the September 17th letter which purports to summarize the reasons for not disclosing the initial letter, purports to summarize the findings of the September 13th letter.
So it says, “We re-iterate the full explanation provided in our September 13th letter which I attach hereto. The Complaint” (this is from page 2 of the September 17th letter) “The Complaint forwarded to the ICIG,” the Intelligence Community Inspector General, “does not meet the definition of urgent concern under the statute. That definition concerns serious allegations related to (quote) ‘the funding administration or operation of an intelligence activity within the responsibility and authority’ (end quote) of the DNI.
This Complaint, however, concerned conduct by someone outside the intelligence community and did not relate to any (quote) ‘intelligence activity’ under the DNI’s supervision. Because the Complaint was determined not to be a (quote) ‘urgent concern’ the law did not require the DNI forward the Complaint to the intelligence committees.” So that was their excuse last week. DNI gets to review, he reviewed, determined that this was outside the scope and therefore not an urgent concern, that’s why we didn’t give it to you.
Thomas: Which was all BS, by the way, and you covered that.
Andrew: Right. And we covered in our bonus episode, 316 and-a-half, that that’s not the law. So that excuse is nonsense to begin with. Today we learned that excuse is not true. Today – and I said “recant,” and I take TODO Tarn’s position, I want to be clear here [Laughs] ‘cuz I like being clear-
Thomas: I’m gonna allow you to be clear.
Andrew: Thank you!
Thomas: I’m gonna go ahead and make an exception just this once, go ahead and be clear.
Andrew: I appreciate that.
Thomas: Be, actually, totally clear.
Andrew: To me, the primary excuse given today by Acting DNI Maguire was executive privilege. We’re going to break that down. In my view, I read you the only sentence that obliquely referenced executive privilege and then I just read you the excuse given by Maguire’s lawyer on September 17. That does not say – it would have been very easy to say “we did not forward this Complaint because it contained matters that were subject to executive privilege.” If they had said that, the letter would have been received [Laughing] very differently. They didn’t say that. They are advancing that position, Maguire is advancing that position, for the first time in the hearing today. Now, that position is also nonsense, you need to know that.
Thomas: But is it the kind of nonsense where they can get away with it for a few more minutes?
Andrew: Nope.
Thomas: Oh! Okay. Well it sounds like it’s a better excuse in some ways ‘cuz they’ve changed their story to it, right? Or do you not think so?
Andrew: I don’t know if it’s a better excuse.
Thomas: Oh.
Andrew: If you go to the statute, and we will include that link in the show notes, that is 50 U.S.C. § 3033, it’s subsection (k)(5), and we talked about this in the bonus episode. It describes in subsections (k)(5)(A), (B), and (C) exactly what happened, which is an employee whistleblower who intends to report to Congress a Complaint or Information with respect to an urgent concern may report such Complaint to the Inspector General, then the Inspector General has 14 days, shall determine whether the Complaint or Information appears credible. Upon making such a determination he shall transmit to the Director of National Intelligence a notice of that determination together with the Complaint, and then (C), upon receipt from such a transmittal the Inspector General shall within 7 days forward that transmittal to the intelligence committees together with any comments the Director considers appropriate.
So you get to annotate, but you shall pass it along. That contains zero exceptions for matters that are attorney-client privileged or covered by executive privilege or covered by urgent aspects of national security, contain confidential information, all of that because they are being transmitted confidentially-
Thomas: To Congress behind closed doors, right?
Andrew: Exactly right! So those are precisely the people that are entitled to hear matters of confidential national intelligence, that are entitled to hear matters of executive privilege. It does not – the whole point of this statute is to circumvent the whistleblower going directly to the press. So 100% of this excuse not only is pretextual, not only was it not advanced a week ago, but not covered by the statute. That’s the takeaway, that’s what you need to be saying back to Aunt Cathy and your Fox News watching uncle. We’re gonna go through-
Thomas: I can’t wait to try to explain this to Aunt Cathy. No, you need to see, it’s going to behind a closed door – oh, never mind, you just hate liberals.
Andrew: [Laughs] Well we are triggered!
Thomas: Yeah.
Andrew: But, no, look, that’s the takeaway that the excuses for failure to transmit this Complaint have crumbled, the Complaint is now – the unredacted Complaint – Acting DNI Maguire confirmed that the unredacted Complaint is in the possession of the House and Senate Intelligence Committees. The redacted Complaint, which is – [Excited] oh my gosh we’re gonna get through how bad this is! Is in our hands. We know this information, and this is, as you are going to hear, a blueprint for impeaching the President of the United States.
Thomas: So, just to make sure I have this all, we have access to the redacted Complaint, Congress has the unredacted Complaint, hopefully we’ll hear more later? Or is it just there are secrets involved or something so we won’t ever-
Andrew: Yeah, no. This Complaint – the ICIG, again, a Trump appointee, was super smart here. The narrative portion-
Thomas: Wait, the guy who held it back?
Andrew: No, no, no, no, no!
Thomas: Oh, the guy who forwarded it to the-
Andrew: DNI, right. Yeah.
Thomas: Right.
Andrew: The Acting DNI Maguire held it back, the ICIG, also a Trump appointee, super smart here.
Thomas: So he was smart enough to be like “this is bad.”
Andrew: Yeah.
Thomas: “And I’m going to make sure that I cover my butt.”
Andrew: Yes, and we’re gonna go through that.
Thomas: Okay.
Andrew: The Complaint is 7 pages long in narrative form and we’re gonna talk about the highlights and lowlights. It segregates out anything that relies on potentially classified information-
Thomas: Mmm.
Andrew: -into a classified appendix. So it says upfront-
Thomas: I see.
Andrew: -hey, I’ve segregated out all the classified information so-
Thomas: Ha ha!
Andrew: -if Bill Barr goes through and redacts this-
Thomas: Yeah, I was gonna say, I remember when Bill Barr did some selective editing. Not today, not gonna let that happen!
Andrew: And lest you think I am being facetious here, I’m gonna read – this is the top of page 2, we’ve already uploaded it to our site, you can read it. Read along with us! (Quote) “To the bet of my knowledge the entirety of this statement is unclassified when separated from the classified enclosure.”
Thomas: [Laughs]
Andrew: “I have endeavored to apply the classification standards outlined in Executive Order 13526 and to separate information that I know or have reason to believe is classified for national security purposes,” and so as a result the entire 7 page narrative here is unredacted.
Thomas: Wow!
Andrew: The portions in the – it’s brilliant! The portions in the attachment that are redacted – again, I don’t know what they contain ‘cuz they’re redacted, but I have every reason to believe that these redactions are legitimate.
Thomas: Yeah.
Andrew: Look, again, [Excited] I want our intelligence community to be able to redact sensitive information! That’s kind of an important thing no matter how important transparency in good government is, I don’t want military secrets-
Thomas: We also don’t have to worry about harm to ongoing matter either.
Andrew: [Laughs] Right!
Thomas: ‘Cuz there’s no – ‘cuz it-
Andrew: Yup! Yup!
Thomas: -shouldn’t involve any of that.
Andrew: Yup.
Thomas: Oh my gosh this is – I see why this is a good day for you. [Laughs]
Andrew: Yeah!
Thomas: When you see Trump appointees acting like this you’re like “oh, yeah!”
Andrew: Yeah! One more [Laughing] and this is all – I have 7 items to cover, this is all not enumerated.
Thomas: This is all small “i” or whatever.
Andrew: [Laughs] One more important thing here, if they’re pinning their hopes on executive privilege, as we will soon find out, the linchpin, the king actor in all of this, is insane person Rudy Giuliani, who is not an executive branch employee. He is not acting at the bequest of the United States government.
He is the President’s personal lawyer and fixer… and nightmare fuel. He’s not covered by executive privilege, 100%, absolutely not. And on top of it, anything that relates to the crime/fraud exception, he’s not covered by attorney-client privilege either. That’s what brought down Michael Cohen.
Advancing the Presidents electoral political interests around the world is not something for which you get to claim attorney-client privilege. So they’ve morphed their argument to privilege and their privilege argument sucks. That’s your top line.
Thomas: Awesome. Quick thing, and I hope you can answer this in a couple words or less ‘cuz we haven’t gotten to item one on your agenda. [Chuckles]
Andrew: [Laughs]
Thomas: So this guy who held back this thing, it’s totally bogus reasons and we all know that because we all listen to Opening Arguments, but he has released it so there’s no consequences for that? Is it the kind of thing where, “okay, yes he held onto it for however long it was, a week or something, and it was totally bogus, his reasons were totally bogus but he did it so now there’s no punishment or consequences or anything.” Is that how it works?
Andrew: Yeah, and let me say this. You saw the treatment of Maguire – and, to be honest, my views on Maguire morph over the course of his three hours of testimony before the House Intelligence Committee today.
When it began I wasn’t sure – we said in our bonus episode that he was a complete cipher, that remains the case, but I’m convinced he’s not a Trump hack. He’s a career Navy guy. Is he a lifelong Republican? Yeah. Did he run to the President when this Complaint came before his office? He did. So, again, I’m not endorsing his behavior in holding it back, neither is Adam Schiff, neither are the House Democrat on the Intelligence Committee. But he’s not Bill Barr. That came out loud and clear and we’re gonna talk about that.
Thomas: Okay.
Andrew: I think this is somebody who was on the job literally for like a week when this came [Laughs]
Thomas: Yeah.
Andrew: -to his desk and was sort of like “okay, I don’t know what to do, I’m a career Navy intelligence guy.”
Thomas: Well, did you catch, though, there was Washington Post reporting that was like he was gonna resign over being forced to keep this quiet, and then Trump in his rambling speech that I can’t believe that I watched a lot of, about the UN General Assembly. [Laughs] He said, like, “oh that was totally fake news, I have a quote here, this guy said no I wasn’t ever gonna resign, I don’t ever quit anything.” So did you catch any of that?
Andrew: Yeah, he was asked that today and confirmed the Trump interpretation of that.
Thomas: Okay.
Andrew: Said, “no, I never threatened to resign over this.” Would be interesting if we find evidence to the contrary, but again, I found Maguire credible. And we’re gonna talk about that.
Thomas: Alright.
Andrew: So there we go, that’s your answer on that question.
Thomas: Okay, that’s our pre-show announcement! [Laughs] Come to the live show, link in the show notes, now let’s get to [Laughing] item one on your agenda!
Andrew: Yup.
Thomas: And that item is regarding transcripts. Of course, Andrew Torrez would lead us off with a fascinating [Laughs] diatribe-
Andrew: [Laughs]
Thomas: -about what is technically a transcript or not. There’s a lot of argument about this, I know you on Twitter were talking about and you were making use of our wonderful transcriptionist, to talk about whether it made sense if the transcript would only be however many pages it was because it should have been longer based on the call times.
Tell us about TELCON and what it actually was, whether this was a transcript or a memorandum or neither? [Laughs]
Andrew: [Laughs]
Thomas: I guess it has to be one.
Andrew: Yeah, look, the Whitehouse referred to this as a transcript. I adopted their language and, you know, 87,000 people said “hey, not so fast! This is a summary and it could be ‘Bill Barr-ed.’” Ordinarily I would say, “oh, come on.” And let me be clear, a TELCON, T-E-L-C-O-N, capital letters, that just stands for “telephone conversation,” and it is an abbreviation used in the intelligence community for these sorts of transcripts.
It has a disclaimer on it that says “look, this might not be verbatim but these are contemporaneous notes made of a phone call.” In any normal situation you would have no reason to doubt that that was 99% plus percent of a transcript. We are not in a normal situation. So let me kind of talk about that a little bit. I asked our transcriptionist, Heather Loveridge, our ace transcriptionist who puts up transcriptions of this show, head on over to openargs.com and you can read that. And I said “look, this transcript is five pages long? That doesn’t look like-“ and it says “this was a half an hour conversation, that kind of feels like it is not complete,” and the transcript internally has several ellipses in it, and, again-
Thomas: Yeah.
Andrew: -as we know from Bill Barr, ellipses can mean-
Thomas: [Laughs]
Andrew: -I’m emitting all the good stuff.
Thomas: However, we are talking about Donald Trump, and I guess I’ll ask the question, could these ellipses be, “and remember when I won the electoral college? It was a total blowout, they never said anyone else could win that many votes and it was the most votes” and the transcriptionist people or whoever’s listening is just like-
Andrew: [Laughs]
Thomas: “Alright, usual diatribe about how I’m so great, blah blah blah blah blah.”
Andrew: It absolutely could. And, look, I don’t want – again, I referred to the thing as a transcript, I accepted the Whitehouse language – I think until proven otherwise we ought to assume that it fairly reflects the content of the phone call because it’s really bad by itself.
Thomas: [Laughs]
Andrew: This is not like the Barr letter.
Thomas: Yeah.
Andrew: The transcript is real bad!
And now that we have the whistleblower’s Complaint we can line those two up and on page 3 the whistleblower says, (quote) “Based on my understanding there were approximately a dozen White House officials who listened to that July 25th call, a mixture of policy officials and duty officers in the White House situation room as is customary. The officials I spoke with told me that participation in the call had [Laughing] not been restricted in advance because everyone expected it would be a (quote) ‘routine call with a foreign leader.’”
Think about what that means. It means that Trump is so used to his mafia way of conducting business that as he’s about to bribe a foreign leader-
Thomas: Yup.
Andrew: -he doesn’t think “oh man, I should probably do this without people around.”
Thomas: Yup! I have said this from the beginning, I never thought that Trump was a Putin spy, but I do think that he has no sense of the law and doesn’t care about the law and just by – just odds wise, the odds were there was gonna be enough in the Mueller report of him just not even knowing or caring and just doing what he wants to do and breaking the law because there are some restrictions on [Laughing] what a President can and can’t do, and he has had no restrictions or consequences placed on him his entire life, so he has complete disregard for anything like the law and just doesn’t care.
Andrew: Yup.
Thomas: So naturally it would just be like, “yeah everyone listen in, I’m about to break the law, it’s cool.”
Andrew: Yup.
Thomas: [Laughs] Check this out!
Andrew: And as you read the transcript, and I had some portions I was gonna read to you, we’re already a half hour in so I’m gonna alight over it, you can read the transcript. What this instantly reminded me of was James Comey’s testimony-
Thomas: Yeah.
Andrew: -when he was fired. That was, we got that – the idiotic spectacle of Republicans in Congress going, [Sarcastically] what, he just said “I hope!” “I hope” doesn’t mean that he was threatening! And you read it and it read like a mob boss saying, [Mob Boss Impersonation] “I hope you can see your way clear to lettin’ this go, to lettin’ Flynn go, he’s a good guy, I sure hope you can let that go!” That’s a direct quote. We all knew what that meant when he fired Comey and the proof was that he fired Comey [Laughing] when Comey didn’t let it go, right?
Thomas: Yeah.
Andrew: So we know how this person talks.
Thomas: Well, no. He was just very disappointed in how Comey handled Hillary’s – or what was it? What excuse?
Andrew: Whatever after-
Thomas: I don’t even remember the BS excuse, but it was stupid.
Andrew: Well, but remember, he first conceded to-
Thomas: Hmm.
Andrew: -to Don Lemmon on CNN?
Thomas: He first declared, “yes, I fired him because of Russia, it was Russia, I did it, impeach me,” and then everyone’s like “[Laughs] He’s joking though.”
Andrew: Right. So you read this conversation that the President of the United States has with the just-elected President of Ukraine, a world leader [Chuckles] necessary to – that is at war with a hostile foreign power to the United States. And we’re gonna talk more about Ukraine on our Tuesday episode, it is really, really important that everybody understand just how gross a dereliction of duty this is, just how treasonous in the small “t,” not the criminal offense of treason, but how colloquially treasonous this is.
You read this conversation, it is gross and disgusting. It is a world leader asking the President of the United States and the President being like, [Mob Boss Impersonation] “Yeah, that’s great, but you gotta do me a favor, first.”
Thomas: Oh, I’d love to free up these $320 million dollars that I’ve – oh, I guess there’s a problem in transmitting that to you. I’d love to free it up for you.
Andrew: Yeah.
Thomas: Definitely gonna do that.
Andrew: Yeah, you just gotta talk to my people.
Thomas: Could ya do me a favor?
Andrew: Yeah.
Thomas: Like, literally.
Andrew: It’s gross. And that will be evidence of corrupt intent. Those are the same line of cases that we talked about with Comey. U.S. v. Bedoy and-
Thomas: [Laughs]
Andrew: U.S. v. McDonald–
Thomas: Sorry, I just! I cannot take that any other way, this is so obvious that this is a lawyer joke. Yeah! It’s from the case U.S. versusb’doy!
Andrew: [Laughs]
Thomas: Of course this is corrupt intent! [Laughs]
Andrew: [Laughs] Yeah! The case of the Universe versus duh! Yeah! [Laughs]
Thomas: [Laughs]
Andrew: Oh man! I am gonna look through to see if-
Thomas: I thought that was one of those lawyer jokes that like lawyers think is hilarious!
Andrew: -Arthur Duh was ever arrested. [Laughs]
Thomas: [Laughs]
Andrew: So, uh-
Thomas: [Laughs]
Andrew: -there we go. That’s the difference between TELCON and a transcript, I think we should give the Whitehouse the benefit of the doubt on this until proven otherwise, and if there is an otherwise, if this has been “Bill Barr-ed,” there are a dozen people out there that will be able to contradict it.
Thomas: Well you talk about those dozen people-
Andrew: Plus there’s additional information.
Thomas: Oh, I’m sorry.
Andrew: Go ahead.
Thomas: You talk about those dozen people but it just occurs to me, let’s say that we go through all this and it’s widely established, which we all know but whatever, it’s widely established that this was horrible, unethical, like you said small “t” treasonous, impeachable behavior. Is there any implication on the twelve people who heard it and were like “okay!” and then the one whistleblower was like, “hey this is not okay.”
I mean, are they guilty of anything? Do they have the right to just be like “well we all heard that and it was crimey, it was definitely full of crime, but we’re gonna not tell anybody.” You know, is that okay? Can they just…
Andrew: That’s a super complicated question and it turns on exactly what they heard-
Thomas: Oh.
Andrew: -and whether they could be charged as co-conspirators in the crime. Because, certainly, when you get to the law of conspiracy you can be a conspirator before the fact, you’re somebody that got together with the President and said “okay, we’re gonna do this.” Bill Barr, conspirator before the fact.
Thomas: Wait, but hold on, let me just pause you right there.
Andrew: Go ahead.
Thomas: That’s all under the understanding that this would be an actual crime and not just an impeachable offense, right?
Andrew: Right. And we’re gonna talk about what actual crimes were committed here.
Thomas: Oh, okay.
Andrew: You can also be a conspirator after the fact.
So your buddy is in a gang but you’re not in the gang, the gang decides to pull off a bank robbery and then your buddy unbeknownst to you, pulp fiction, right? Jewels and Vincent show up at your valley apartment and are like “uh, hey Quentin Tarantino I need you to put us up and help us clean the car.” You weren’t a part of the initial conspiracy, but you’re now a conspirator after the fact. Y
ou recognize when somebody shows up with a car full of blood and asks you to help clean and hide them out for a little bit that you are participating in the criminal enterprise after the fact. I doubt, by the way, that there will be an affirmative obligation on these 12 folks.
Thomas: Okay.
Andrew: But that’s the analysis that you would use. Do you wanna-
Thomas: But I mean-
Andrew: -take an ad – oh, go ahead.
Thomas: -you would hope that professionally everybody would be like “oh, these are garbage people who don’t care or report it when the President does an impeachable thing, so their career should be over” but we know that won’t happen.
Andrew: And look, let’s add – I want one more defense of these folks, and I reserve the right to take the garbage person approach later on. We saw the direct aftermath, literally five minutes before we started recording the President gave a speech in which he attacked the whistleblower himself, called him a spy and said “well, you know, we used to have ways of dealing with spies.” So, look, this is a thug in office and I get the idea that people around him, particularly people who are-
Thomas: Yeah, but if that were the excuse I’d agree with you but it’s not. They’re protecting him because they wanna be in power and he’s the ticket to power.
Andrew: I hear ya, I hear ya! But when you have that level of corruption at the top, of [Mob Boss Impersonation] “I’d sure hate to have something happen to you” I have some sympathy. We’ll know more as things unfold.
Thomas: Yeah.
I’m keeping an eye on news alerts just in case anything drops just while we’re talking about that whistleblower, New York Times alert here, “Whistleblower is said to be a CIA officer who was assigned to work at the White House, his Complaint suggests he is a trained analyst.” Interesting. That’s what we have on him so far. Alright, with that said we’ve gotta take a quick break and we will be right back with item two of seven! [Laughs]
[Commercial – getquip.com/oa for first refill free]
Thomas: Here we go with item two! Apparently item two is, are we at peak Yodel Mountain? I think peak Yodel Mountain is Trump’s been impeached and actually convicted, right?
Andrew: To me peak Yodel Mountain is career Republican breaks with Donald Trump.
I’ve pegged that on a couple of different people, Bill [Richard] Burr from North Carolina in the Senate, we’ll have to look. We’re not there yet, but there are some really, really positive signs of where we are. Obviously Nancy Pelosi immediately doing an about-face. The report was that she did that pending receipt of information from Democrats in Republican districts saying, “my constituents are not on board with this. Now, I’m in an R +10 district, I’m in an R +15 district and people care about this and I’m willing to go out and say I support impeachment inquiry.”
The number, as of right now counting Justin Amash is 222. So 221 Democrats, more than a majority (you need 218), plus Justin Amash as of this record, support an impeachment inquiry. That’s significant.
Thomas: Yeah.
Andrew: Those are Democrats in red districts. Ben Sasse yesterday, Republican Senator from Nebraska, again, a Republican Senator from Nebraska! Not a liberal guy and not a Trump gadfly guy either, just a career Republican said “these allegations are troubling.” Now, again, there’s a long way between “these allegations are troubling”-
Thomas: Yeah there’s a lot of people who are deeply troubled. We’re on, like, level 7 of- we’re now double secret ultra troubled.
Andrew: I get that Jeff Flake was troubled a lot, didn’t-
Thomas: Yeah. Mitt Romney, oh! Deeply, deeply troubled!
Andrew: Yup.
Thomas: They’re not just troubled, they’re deeply troubled, folks!
Andrew: I agree, I agree, but you’re asking for signs and these are some of the signs.
Thomas: Oh no, I wasn’t arguing against you-
Andrew: Yeah.
Thomas: -I’m just noting the cowardice of conserva-
Andrew: No, I-
Thomas: -there are some Republicans, they’re gonna say as much as they can to be able to point back to after this is all blown up and this mob boss is out of office. “Oh, no, all along I was deeply troubled, don’t you see? I contributed so much to the ouster of Donald Trump by my deeply troublededness.”
Andrew: We had a 100 to 0 vote by the Senate, authorized by Mitch McConnell, who we know is perfectly comfortable bottling up anything that he doesn’t like including efforts to increase U.S. cyber security to prevent Russia from interfering with our elections, he’s okay not having that come to a vote. Allowed to come to a vote and joined in a unanimous Senate in saying that the whistleblower complaint should be released to the House and Senate Intelligence Committees knowing that we would be where we are today.
The only explanation for that is that Mitch McConnell, looking at Kentucky as a Republican +16½ State, as somebody who had trouble in 2014 against a candidate who made a lot of missteps in Alison Lundergan Grimes, is looking at his 2020 reelection and going, “alright.” There’s a bridge too far for Mitch McConnell in Kentucky.
Thomas: Well, I’ll give you a different interpretation. I think he knows what he can and can’t do, he knows that sitting on this very obviously illegal thing of sitting on this Complaint, he knows that that is just harder than letting it come out and then saying “oh this is nothing,” which is what he’ll do. I don’t think it’s some, like, “oh, he’s worried,” he just knows that that’s the way he can play it better, I think.
Andrew: Yeah. I don’t think that that’s an implausible reading, but you know, again the question is where are we in terms of-
Thomas: [Chuckles] He knows he can be like Lindsey Graham and call it a no quid-pro-quo burger? [Laughs]
Andrew: Look, Lindsey Graham – I was gonna start with Lindsey Graham. Lindsey Graham has already made his political calculation, and this is, remember, this is the other definition of the apex of Yodel Mountain. It’s the point at which Republicans are more afraid of losing in the general election than they are of being Primaried by a pro-Trump Matt Gaetz-type person.
Lindsey Graham made that calculation in 2018. He said, “I’m in South Carolina, South Carolina’s gonna be a Republican +9 State, I stand much more to lose by being Primaried, so time to get down on my knees for Donald Trump,” and he has. It’s too late. I haven’t used that formulation because, right, it’s really too late to Primary these folks, but it’s the same calculus. It is, at what point are Republicans in safe Republican districts gonna look at it and go, “oh man, there’s a limit to how much water I can carry here.”
It is figuring out what percentage of Republicans are, particularly in their districts, are Republicans but not “I watch 4 hours of Sean Hannity every day and have Fox News carved into the inside of my eyelids” versus “yeah, I’m a Republican, but I’m not quite that.” Those are the folks that we can reach. But that [Laughs] today is as optimistic a day as I’ve been in a long time in terms of where we are Yodel Mountainwise.
Thomas: [Sighs] Okay. Yeah. We’re somewhere. We’re definitely a higher – we know this, we’re higher than we were a week ago on Yodel Mountain. So [Laughs] next item, this is great! This is a next item entitled “Boomers Trying to Use Email.” [Laughs]
Andrew: [Laughs]
Thomas: Sorry, Boomers! Is it true, Andrew, as was reported – and it seems to be true, I saw it and it looks legitimate, but I always wanna get Andrew’s opinion. Seems as though the President’s people sent their talking points to Nancy Pelosi?
Andrew: They did indeed!
Thomas: Okay. Just making sure that wasn’t an “Occupy Democrats.”
Andrew: Oh, it’s even better than that! Not only did they send their two-page talking points to Nancy Pelosi because a staffer hit “Reply All.”
Thomas: [Chuckles]
Andrew: But then [Laughs] the staffer sent out, and various reporters have leaked, the-
Thomas: “Please disregard” [Laughs]
Andrew: No, no! “The sender has tried to recall this message from Gmail.”
Thomas: Oh, right, right.
Andrew: [Laughing] As if recalling an email means that you unsee it if you’ve opened it!
Thomas: Yeah.
Andrew: This is super important, we’re gonna link the ridiculous talking points in the show notes, because you saw them on display in the Maguire hearing. It is – and when a right wing hack is repeating these talking points they should be called out as, “great, so you’re not actually gonna analyze this, you’re just repeating what the Whitehouse literally told you to say” and those people should be shamed.
I also want you to put a pin this, because this is the most damning evidence of corrupt intent that we have so far in connection with the Maguire hearings. Multiple place in the talking points we have, I’m gonna read the first one – bullet point, “Myth, the President urged President Zelensky to work with Rudy Giuliani to investigate Biden’s involvement in securing the firing of a Ukrainian prosecutor eight times” (and “eight times” is italicized). “Fact” and this is spin, not fact, but it’s labeled “fact.”
“The President mentioned Rudy Giuliani only after Zelensky mentioned him first and referred to Biden in only one exchange.” Okay, so put a pin in that. And, again, that appears all over these talking points. Put a pin in that one, I’ll tell you when we pull it out.
Thomas: Alright, keeping an eye on that pin and next, we’re gonna finally get to Maguire’s testimony. This was a bad day to be on the west coast-
Andrew: [Laughs]
Thomas: -and to also go to bed late and wake up late ‘cuz by the time I woke up this whole thing had happened. I didn’t even know this was going to happen, so fill me in.
Andrew: Yeah, so I’m gonna get to exactly how devastating this was.
Adam Schiff was really, really good today. Lots of Congressional Democrats were really good today, and part of the reason for that isn’t that these guys have gotten any smarter since the Mueller hearings, it’s that this case is such a slam dunk. It is so easy that even when you’re politically grandstanding you can’t screw it up.
Now, that is not meant to undercut, and I called out on Twitter, Adam Schiff did a masterful job. Other members of Congress did a really, really good job, and some of them were willing to do, you know, the hard work of laying foundational questions and so I don’t mean for that aside to impugn any of the Democrats on the Committee, but I do wanna draw the contrast.
This was – if you’re just an average person, if you’re that hypothetical middle of the road voter – I dunno if that person exists or not. Like I said, I usually use my dad as the [Laughs] stand in for that. My dad texted me halfway through and was, like, “are you watching these hearings ‘cuz they’re really bad.”
Thomas: [Chuckles] Yeah.
Andrew: My dad’s a registered Republican, but a never-Trump Republican. Anyone could look at this and know that they’re really, really bad. So we’re gonna talk about how bad it is.
I want to flag the five arguments that the right wing is making and that were on display at the Maguire hearing. They’re gonna go nowhere but you need to know that they’re being made.
So, point one, the Democrats are being mean to you – and this is all political hackery – that, I think, was effectively exploded by the Democrats during the hearing who changed their tone. In much the same way that I change my evaluation of Maguire, when it began I wasn’t sure where he was, by the end of the hearing, like I said, this is not a Bill Barr-level guy who’s willing to take a bullet for Donald Trump. He’s made some poor judgments here, and that’s precisely the tone that Schiff and the Democrats on the Committee took. It’s gonna neutralize that, I think, as an attack.
Number two is the argument that the whistleblower Complaint itself is hearsay. That’s true. 100% true.
Thomas: But it might fall within an exception? [Laughs]
Andrew: [Chuckles] Well it’s even better than that.
Hearsay governs what testimony is admissible at trial. Lots of Complaints are hearsay, particularly whistleblower Complaints. So it begins, “In the course of my official duties I have received information from multiple U.S. government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” It is responsible to say “I didn’t witness all of this behavior myself. I have talked to others with knowledge.” T
he instant counterargument that the House Judiciary Committee is going to make is, “yeah, this absolutely is hearsay, so after we talk to the whistleblower we’re gonna want to talk to each and every one of those sources,” and the Republicans are gonna say “oh, god, we didn’t think of that.” This is such an own goal.
Thomas: [Chuckles]
Andrew: It is the just – and seriously, that’s why I’m flagging it because I want us to remember and throw it back in their faces when they argue “Witch hunt! Distraction! Oh we’ve spent blah-blah millions of dollars!” No, no, guys! You told us the Complaint was hearsay, the way to make it not hearsay is to talk to everybody involved and for the whistleblower, who I believe 100% in closed-door testimony to the House Intelligence Committee is going to reveal his sources, that will then provide the reason to go talk to each and every one of those sources. So that was pretty stupid on their part. [Chuckles]
Thomas: [Chuckles] I’m so surprised.
Andrew: Yeah, me too.
Next was the executive privilege argument, we covered that already. I could get into that in more detail, but we covered it. They were basically like “oh, well, it was perfectly legitimate for you to go to the President and Bill Barr and ask if it was okay for you to release this Complaint.” That’s nonsense.
The argument, I said five, I think I’ve condensed down. The argument that didn’t come up today that is in the TELCON, the not-quite-a-transcript transcript, this took me down a total rabbit trail, and I don’t know if you knew – you’re more connected in with Q Anon level clownhornery than I am-
Thomas: Oh, am I? I dunno.
Andrew: I dunno, I was asking, that was a question. Do you know – ‘cuz the President, to the Head of State, to the President of Ukraine, mentioned a thing that would strike any outside observer – at least me –as completely insane. Which is, “congratulations on winning,” and then let’s talk about the testimony, he says, “yeah, congratulations on winning,”
President Zelensky says, “thanks for that, I would like to thank you for your great support in the area of national defense, we are ready to continue to cooperate for the next step, specifically we are almost ready to buy more Javelins” (those are surface-to-air missiles) “from the United States for defense purposes.” Then the President, and again, I’m reading this directly. T
he response to “we’d like to buy more weapons for defense from you is”-
Thomas: Mm-hmm.
Andrew: “Yeah, I would like you to [Mob Boss Impersonation] do us a favor, though, because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike. I guess you have one of your wealthy people, the server, they say Ukraine has it” and I could go through that. I had no idea what the hell this was referring to.
Thomas: They have Hillary Clinton’s server or something? [Laughs]
Andrew: It relates to – and I am not making this up – a QAnon level of just complete clownhorn insanity that says the Democrats manufactured the entire email [Stammers] it’s just – and Crowdstrike was their third-party consultant.
I’m gonna link an article in the Daily Beast, but this kind of – when I say QAnon level I mean that seriously. This is Pizzagate levels of conspiracy theory and you have the President of the United States babbling about it to a just elected foreign leader who has to be sitting here thinking “I’m talking to a crazy person.” I’m gonna include the Daily Beast article that I read – and I was gonna say so you don’t have to, but now you do have to-
Thomas: Yeah, I wanna read that. I’m actually interested.
Andrew: It’s bonkers. It is – I have run out-
Thomas: So it sounds like Trump actually believes, or wants to believe, this stuff?
Andrew: Yeah. Because he’s asked them, “can you produce the server?”
Thomas: This is a phone call that he doesn’t think is going out to the public or anything.
Andrew: Right.
Thomas: He’s not like, “oh he’s tryin’ to stir up whatever.” No, he’s genuinely asking “do you know, Mr. President of Ukraine, do you know the pizza parlor where Hillary has all the kids? Can you tell us?” Like that level of thing?
Andrew: Yup. That’s exactly right.
Thomas: Wow.
Andrew: Then that’s where he says “I would like to have the Attorney General call you or your people and I would like to get to the bottom of it.” Whatever you do it’s very important that you do it if that’s possible. That is the leaning on President Zelensky. So those are the arguments.
Now, what happened with Maguire – and, again, at the start of the show I read use the statute. The statute absolutely does not give Maguire the discretion to do what he did in this instance. So what Maguire did was, looked at the Complaint, said “this appears to involve executive privilege so I’m going to go to the White House.” He did not quite admit that because he invoked executive privilege and then Adam Schiff said, “are you telling me you had a conversation with the President of the United States relating to this Complaint?” And he said, “I talk to the President all the time, three times a week, I am not gonna divulge the substance of those conversations.”
Adam Schiff correctly stated the law of privilege, and I really, really wanna emphasize this. You can claim privilege related to the subject matter of a conversation, but you cannot claim privilege as to whether that conversation happened in the first place. In other words you have to say “yes, I had a conversation with the President about this Complaint and I will not discuss the substance of that conversation.” Maguire would not answer that question, but can be compelled to answer.
Doesn’t really matter, he’s not gonna be compelled because we know – I mean, it was clear from his – you know, it was like “so, are you saying you talked to the President?” and then he looked up at the screen with that, like, “oh I’m trying to swallow my tongue here” look! [Laughs] It’s 100% clear that he had a conversation with the President.
He conceded that he called Attorney General Bill Barr, that he went to the Department of Justice and asked the Office of Legal Counsel, “hey, can I turn this over?” and shockingly the Office of Legal Counsel, appointed by Donald Trump, under the supervision of Attorney General Bill Barr, said “no, no, absolutely not.”
That is now their sole excuse for not turning over the Complaint. That is not a valid excuse. As we said at the start, it’s not the excuse they were giving a week ago. Adam Schiff was exceptional in this hearing, he got a [Laughing] series of admissions, each more admitt-y than the last.
Thomas: [Laughs]
Andrew: I love the question, again to which Maguire answered “yes.” “So what you’re telling me is you went to the subject of a Complaint to ask him if we should release the Complaint?”
Thomas: Wow.
Andrew: He was like, “well, yeah, but this is unprec” – I mean, he kept going back to “this is unprecedented,” and you could just see Adam Schiff being like “right, we’ve never had a President this corrupt before.” [Chuckles]
Thomas: Yeah, but also, like, just because it’s unprecedented doesn’t mean it’s that hard to puzzle out, “hmm, should I take this Complaint to the person it’s about and ask them if it’s okay to do stuff with it?”
Andrew: Yup!
Thomas: I’m pretty sure I could figure out the answer to that despite it not having happened before. [Laughs]
Andrew: Yup, yup! And so he said, “you’re aware that the practice is to forward these Complaints to us, right?” “Yes.” “And, in fact, every previous ICIG Complaint that has come through the Office of National Intelligence since its inception, since it’s post” (because this is a recent creation, Director of National Intelligence was a position created post-9/11) “in the 15 years that your office has been in existence you always forward them to Congress, don’t you?” and he said, “yeah, but this is different.” So that’s real bad! [Chuckles]
Thomas: Yeah.
Andrew: So it was – and, again, there was nothing. You could see – the way in which it works in Congressional Hearings is you give everybody the same amount of time. Adam Schiff delegated to the ranking member of the Committee of Intelligence, the House Committee on Intelligence is Devin Nunes, who, boy! Watching him just try not to explode was amazing. He just had this look of “I’ve gotta continue to keep up the fight here but it’s all crashing down around me.”
Thomas: Well I didn’t get to see it, I mean I think their faux outrage has to go in proportion with how screwed they are. Did he do the Lindsey Graham “oh, you people! I hope you never get power!” Did he do one of that?
Andrew: He – [Laughs] He did, in my view, even better, which was – Schiff went first and got 20 minutes of damning concessions and then Nunes got up and read his pre-written “I just want to warn you, Acting Director Maguire, they’re gonna try and get you to say things”-
Thomas: Like he thought he was going first?! [Laughs]
Andrew: [Laughs] Right! And you’re like, “well that would’ve been a good thing to tell him 20 minutes ago.”
Thomas: That information would’ve been useful to me yesterday.
Andrew: Yup! Yeah [Laughs] [Teeth Clenched] “I could’ve been told about this yesterday!” Yeah, so it was a complete disaster. There is zero way to spin this outside of if you’re on Fox News. It’s bad, and now we have – and we had contemporaneously with the hearing, I got to read it this morning. We have the actual Complaint.
Thomas: Alright! Just hot off the presses! Alright well let’s find out more about that in a moment after this break.
[Commercial – policygenius.com]
Thomas: Okay, lay it on us! Is it the actual Complaint?
Andrew: This is, as I said, the actual Complaint. It is unclassified in the narrative portion. I read some of it to you already, I described the cleverness with which it was drafted. Let me go through, again, the summary – and this is page one, so that everyone understands just how serious this is.
“I’ve become aware of efforts by the President to use the power of his office to solicit interference from a foreign country in the 2020 election. The President’s personal lawyer, Rudy Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well. Over the past four months more than half a dozen U.S. officials have informed me of various facts related to this effort … it was relayed to me in the course of official interagency business.
It is routine for U.S. officials with responsibility for a particular regional or functional portfolio to share such information with one another in order to inform policymaking and analysis.” Then there’s the caveat, “I was not a direct witness … [but] I found my colleagues’ accounts of these events to be credible because, in almost all cases, multiple officials recounted fact patterns that were consistent with on another. In addition, a variety of information consistent with these private accounts has been reported publicly. I am … concerned that [these] constitute ‘a serious or flagrant problem, abuse, or violation of law,’” that’s the standard under the statute, which, again, I point out that the Inspector General found credible.
Now let’s go to the specifics. The specifics begin on page 2 with roman-numeral I. Remember the pin I told you to put in about the talking points?
Thomas: I got it right here!
Andrew: Yeah, pull it out!
Thomas: Yank! [Yanking Noise] I don’t know what sound that makes.
Andrew: [Laughs] So the transcript or TELCON was of a July 25th phone call from Donald Trump to President Zelensky. The Complaint notes, “This was the first publicly acknowledged call between the two leaders since a brief congratulatory call after Mr. Zelensky won the presidency on April 21st.”
Three things you need to know about that statement. Number one: prior to the release of this Complaint, yesterday the New York Times was reporting that Trump mentioned Giuliani in that call before the Complaint leaked in that April 21st call. So I’m gonna read you from the New York Times reporting from yesterday. And, again, this was before they got the Complaint, so pretty interesting coincidence.
“When Ukraine elected its new leader, Volodymyr Zelensky, on April 21, Mr. Trump seized on the moment as an opportunity to press his case. Within hours of Mr. Zelensky’s victory, Mr. Trump placed a congratulatory call as he was en route from his Mar-a-Lago resort in Florida to Washington. He urged Mr. Zelensky to coordinate with Mr. Giuliani and to pursue investigations of ‘corruption,’ according to people familiar with the call, the details of which have not previously been reported.”
So I want everybody to digest that for a second. Within hours of Zelensky being elected in April, Trump called him up and said “hey, I want you to talk to my guy, Rudy Giuliani.” That was reported yesterday. The whistleblower did not know that.
Thomas: Huh.
Andrew: So when the White House says “oh, look at this July 25th call, he didn’t mention Giuliani until Zelensky mentioned him first,” you might ask the follow-up question, “well how the hell did Zelensky know who Rudy Giuliani was?”
Thomas: Yeah, why would he mention Rudy Giuliani?! [Laughs]
Andrew: Right. And the answer was because the last time Trump called him-
Thomas: Right.
Andrew: -he said “I want you to talk to my guy, Giuliani, my fixer.” It is 100% incriminating.
Thomas: Wow.
Andrew: And it is absolutely demonstrates the corrupt intent with which these talking points were sent out of the Whitehouse.
There’s additional corroborating evidence, footnote 4 on page 4 of the Complaint shows that in May, two associates of Giuliani few out to Kyiv to meet with Zelensky’s advisers and on May 9th Rudy Giuliani, this is from pages 6 to 7, Rudy Giuliani was planning to fly to Ukraine. You may remember that that trip was cancelled, but Giuliani was going to fly and then he said “oh well, Zelensky is (quote) ‘surrounded by enemies of the President and the United States’ (end of quote) so I’m not going to go on my trip.”
The President was siccing Giulini on the newly-elected President of Ukraine hours after he was elected. So that’s part I. That seems pretty bad. Would you believe that it gets worse?
Thomas: Hmm, yes.
Andrew: Yes! Good belief!
Thomas: Score one for me.
Andrew: Part II, this begins on the bottom of page 3. Yeah, and again, I can’t do better than read from the transcript.
“In the days following the phone call, I learned from multiple U.S. officials that senior White House officials had intervened to ‘lock down’ all records of the phone call, especially the official word-for-word transcript of the call that was produced – as is customary – by the White House Situation Room. This set of actions underscored to me that White House officials understood the gravity of what had transpired in the call.
White House officials told me that they were ‘directed’ by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored … Instead, the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature.”
Thomas: Oh. Wonder what else is on that illegal email server they have?
Andrew: Uh-huh! And that is described in the attachment as being codeword-level classification, and codeword-level classification, I had to look this up, I had to read through the intelligence manuals to figure it out.
Thomas: Yeah, the codeword is “Big Orange Law Breaking Idiot President” is the codeword.
Andrew: Yes! No, but it is when you have otherwise – you have highly secret, highly confidential information within an otherwise confidential report. So people have access to the whole report, but then there’s a special section that you only want a subset of them to see so you lock down part of that information, you protect it by a codeword and you have to know the codeword in order to access it.
To put this phone call [Stammers] I mean, we’ve talked about and we will talk about in the bonus section [Laughs] what it takes to demonstrate criminal intent.
Thomas: Yeah, this?
Andrew: Hiding your thing is what it takes to demonstrate criminal intent!
Thomas: Let’s hide this, by the way, combine that with the fact that Trump, and again, I watched this and nobody could possibly watch President Trump I’ve decided.
Sorry to take a second, a sidebar, but I watched his little speech yesterday, I think it was, and it’s unwatchable. I think that Republicans don’t watch him either because nobody could. He’s deranged. But he talked about how it’s a great call. [Sarcastically] Oh, oooh! It was a fantastic call with Ukraine, totally good! And then he had this thing where in one sentence went from “it was such a good call I think the Democrats should go after the first call!” and then the next sentence made fun of them going after the first call.
He’s like, “they should go after the first call. Oh I just heard rumors that [Sarcastically] oh they want the first call!” [Chuckles] It’s the weirdest thing.
Andrew: Yeah.
Thomas: But anyway, the point is would that add to the evidence? If the President is saying “yeah, great call, everyone should hear it” and these people are saying “let’s put it in this double secret ultra-probation vault” does that maybe indicate that, like, something’s going on? Like why would this call that’s just a normal call that everybody should hear go in this secret, top secret codeword thing?
Andrew: Absolutely using the powers of the Presidency to declare as classified something that is plainly not classified [Laughs] and “plainly” doesn’t rise to that level of classification, demonstrates the corrupt intent necessary, would be enough – I should not say it demonstrates the corrupt intent.
It’s enough to go to a jury, to say “hey look, you could draw that inference and we want to go to a jury and charge this person with a crime and use this as evidence of corrupt intent.” Which is what ya need for some of the crimes and misdemeanors which we are going to break down on the additional bonus continuation.
Thomas: Have we run out of time?
Andrew: We’re seventy minutes in, we may go for another hour, I don’t know.
Thomas: Ooof.
Andrew: I wanna give – I don’t wanna be – there’s so much I want to do. I wanna make sure everybody who’s listening to the free version of the show gets the bottom line.
Thomas: Yeah.
Andrew: Which is, this is the blueprint for impeachment. In my view there will be five articles of impeachment that are voted out of the House Committee on Oversight. Those five, and I’m confident on four of them and I’m up in the air on one.
Thomas: Interesting.
Andrew: I think they will be these five: A, a catchall that the President has acted in a manner contrary to his oath.
Thomas: Okay.
Andrew: That will follow the Nixon impeachment.
Thomas: Makes sense.
Andrew: B, illegal solicitation of a campaign contribution.
Thomas: Stormy Daniels? Or wait-
Andrew: [Excited] We’re gonna talk!
Thomas: Oh, okay.
Andrew: C, and this is the only one that I could see going either way, emoluments.
Thomas: Oh, yeah. Yup.
Andrew: A violation of the foreign emolument’s clause. D, bribery in violation of the anti-bribery statute. And E, obstruction of justice in violation of the obstruction of justice statute, and I will go through each and every one of those, plus I’ll go through other stuff that it’s not, but you know, we’re already at 70 minutes!
Thomas: Okay. Are you saying that’s the bonus section?
Andrew: Yup.
Thomas: Or that’s Tuesday? Oh-
Andrew: No, that’s the bonus section.
Thomas: Okay.
Andrew: And Tuesday, what we’re gonna do is we’re gonna talk about what impeachment looks like because by Tuesday the wheels will be in motion.
Thomas: They already are.
Andrew: I’m gonna tell you what those wheels look like. Yeah, right. And I’m gonna tell you, I’ve got some background. I think it’s really, really important to talk about exactly how bad this is. Because Ukraine, I think a lot of Americans are just sort of like “Uh, Ukraine.”
This conduct is horrendous for Donald Trump and I wanna make that super clear, so yeah, we’ve got a good bonus and we’ve got a lot of stuff for the Tuesday episode and I can’t wait to do all that.
Thomas: Alright, well since this is still a rapid-response Friday, we need to do the things we do every show. I’m excited for the bonus, we’ll get to that, but first we need to thank our First Timers, our new patrons for First Timer Friday.
And I think I am going first. So I will say these patrons who recently signed up on patreon.com/law will enjoy all the bonus stuff and the quick return. Tuesday’s episode will be available very soon I promise you, hopefully shortly after you’re hearing this because we’re gonna have Brian edit – we’re giving Brian a lot to do but I think he’ll get to this at least at the very latest first thing on Friday so it’ll be ready for ya after you hear this. But, anyway, join these new patrons, new patrons this week, at patreon.com/law.
[Patron Shout Outs]
Andrew: Thank you all so much for supporting the show over at patreon.com/law. I think you’re not gonna regret your pledge this week!
Thomas: [Laughing] Yeah. And by the way, use that pledge to get discount tickets to the live show, October 12th, L.A. If you’re anywhere near, come drive down! We’re not gonna be close, come do it.
Andrew: Yeah, special guest Carrie Poppy!
Thomas: Yeah, and Carrie’s attorney Matthew, I believe, we’ll see how it goes. So, you know, the show must go on, I guess [Laughing] I have to answer a bar question?
Andrew: You do!
T3BE – Question
Thomas: Alright, T3BE, hit it Brian!
[Section Intro]
Thomas: Alright, here we go. Let’s do it.
Andrew: Yeah, you’re on a two-question winning streak-
Thomas: Unbelievable.
Andrew: -so I’m here to try and put a stop to that with another real property question. Here we go.
Thomas: Oh, okay.
Andrew: Thomas, a seller and a buyer entered into a contract obliging the seller to convey title to a parcel of land to the buyer in exchange for $100,000 dollars. The agreement provided that the buyer’s obligation to purchase the parcel was expressly conditioned upon the buyer’s obtaining a loan at an interest rate no higher than 10%.
Thomas: Interesting.
Andrew: The buyer was unable to do so but did obtain a loan at an interest rate of 10.5% and timely tendered the purchase price. Because the value of the land had increased since the time of contracting, the seller refused to perform.
Thomas: Huh!
Andrew: The buyer sued the seller. Is the buyer likely to prevail? A) No, because an express condition will be excused only to avoid forfeiture; B) No, because the contract called for a loan at an interest rate not to exceed 10% and it could not be modified without the consent of the seller; C) Yes, because the buyer detrimentally changed position in reliance on the seller’s promise to convey; or D) Yes, because the buyer’s obtaining a loan at an interest rate no higher than 10% was not a condition to the seller’s duty to perform.
Thomas: That’s interesting. Wow, I don’t know. I didn’t know you could do this in a contract. I don’t know, I’m not seeing this in any of the answers, but it seems weird to me that your contract would even bother with this, because you’d just get the money it’s not like if you default – if the buyer defaults it doesn’t affect the seller ‘cuz they already have all the cash from whoever did the loan, so it seems weird that this would matter to them but I don’t know if this will factor in in the question. Seems like we’re getting a lot of real property lately. Did you save them for when I finally turn around?
Andrew: [Hearty Laugh]
Thomas: You know, on a two question streak! Provided that the buyer’s obligation to purchase… Oh! Interesting. Okay. So I see, I kind of missed that the first time around, I was thinking about impeachment. [Chuckles]
Andrew: I can’t imagine why!
Thomas: I know. This might be key.
The agreement provided that the buyer’s obligation to purchase the parcel was expressly conditioned upon the buyer’s obtaining a loan at an interest rate – so this, it sounds more like if the buyer couldn’t find one, you know, ten or lower then they didn’t have the obligation to purchase, not that the seller could then say “no, I’m backing out.” T
he buyer was unable to do so, but did obtain a loan at the interest rate of 10.5%. Okay, so the seller just wants to get out, so I would think the buyer would – I’m gonna eliminate “No” answers, because the buyer’s gotta win here, I would hope. Is the buyer likely to prevail? No because an express condition… no, I don’t – the parcel was expressly conditioned. Yeah, but it’s just the buyer’s obligation was expressly conditioned. Look, if it’s a “no” answer I’m gonna take the loss, ‘cuz I don’t think that’s right.
That shouldn’t be a “no” answer. If the law is that stupid then I lose and that’s fine. The other no, just to cover it, no because the contract called for a loan at an interest rate not to exceed 10% and could not be modified without consent of the seller. No, I don’t think that’s right. So I’m down to C or D. [Clears throat] Here we go! I’ve got a chance at this one, it seems like.
C, yes because the buyer detrimentally changed position in reliance on the seller’s promise to convey. Interesting. Not loving that one.
D, yes because the buyer’s obtaining a loan at an interest rate no higher than 10 was not a condition to the seller’s duty to perform. Well it’s gotta be that! It’s gotta be! This is a contracts question it seems like, I don’t even know if this is real property. But sometimes they’re similar, I guess it’s a blurry line. I am pretty firm on D here. And this is one of those ones where this has gotta be it and if it’s not, whatever.
I’m not gonna go – sometimes I go against my instincts when I’m not sure, but this one is like, I’m not gonna go this far against my instincts. It seems as though it’s plainly clear here the agreement provided that the buyer’s obligation to purchase was conditioned on the rate no higher than 10, but the buyer’s like “eh, I’m still interested, I don’t have an obligation but I’m still gonna do it,” so D, yes because the buyer’s obtaining a loan at an interest rate no higher than 10% was not a condition to the seller’s duty to perform.
So I’m gonna go D, final answer, three question win streak, there we go. Trump’s being impeached and I have a three question win streak and all that is 100%, see ya next time!
Andrew: [Laughs] And if you share Thomas’ confidence or wanna burst his balloon, you know how to do that. Just share out this episode on social media, you’re gonna be doing that anyway because this, I think, is a pretty good episode.
Thomas: Yeah, please share! Please share.
Andrew: But share this one out, include the hashtag #T3BE, include your answer, your reasons therefore, and we will pick a winner and shower that person with never-ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Oh, wow. Alright, thank you so much for listening. We went extra long even for normies here. We hope that – we’re not trying to hide anything from anybody, we do like rewarding our patrons but we’re definitely not – we wanted to make sure you got – the free version of the show had plenty of stuff, and it did, but this is just so long we have to go extra for our patrons. There’s so much to talk about.
Hey, hop on to patreon.com/law, pledge as little as a dollar, get the bonus stuff, get Tuesday’s episode early, you owe it to yourself. It’s some sort of holiday, right? Christmas, buy it. I dunno, what’s the next holiday? Arbor day. But you owe it, do it. Okay we’re going to see you next time! [Laughs] It’s gonna take like four or five days for normies, Patrons we will see you right now. And, by the way, sometimes, and I think most times when we do a patron extra, Brian swallows his clownhorn button. That’s just another selling point.
Andrew: [Laughs]
Thomas: Sometimes he, uh, misplaces that clownhorn button. We go explicit on the bonus content. Okay, thanks for listening. Share it out please, we’ll see you next time.
[Show Outro]