Transcript of OA 319 – Your Guide to Impeachment

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Impeachments, it [Laughs] ah!  Opening Arguments episode 319, day five of being chained to my desk, recording Opening Arguments.

Andrew:         [Laughs]

Thomas:         How’re you doing, Andrew?

Andrew:         I am doing fantastic Thomas, how are you?

Thomas:         Uh, tired?  It’s a lot of recording, you know.

Andrew:         [Laughs]

Thomas:         But it’s worthwhile.  Hello patrons hearing us early, everybody else hearing us late, you missed us in the early part but now you’re hearing us so that’s fine either way.

Andrew:         [Laughs]

Thomas:         But I’m excited, this is gonna be a fascinating episode.  [Sighs] What a week’s worth of news, can’t wait.  We’re going to talk about impeachment, Andrew’s going to give us a blueprint, a guide to impeachment, and that’s always fun to get a deep dive from the world’s leader in deep dives, [Laughing] Andrew Torrez.

Andrew:         [Laughs]


Thomas:         Any – I see you have a little announcement here before we get started?

Brexit Update

Andrew:         Yeah, so two announcements.  Well, no.  One is going to be part of the story, but the announcement is I had to push back our interview with a U.K. Solicitor on the U.K. Supreme Court’s unanimous 11-0 ruling in Brexit-

Thomas:         Yeah!

Andrew:         -that’s a follow-up up on our discussion.  The U.K. Supreme Court – and everything I’ve read suggests that this was a little bit of a surprise – ruled that Boris Johnson’s effort to prorogue Parliament to basically obstruct their ability, you know, to give the queen’s speech – but basically we know what it was, to obstruct their ability to come up with alternatives for the looming October 31st Brexit deadline.  That was an inappropriate use of his powers. 

Everything I’ve read suggests that that was a little bit of a surprise so we’re gonna have a British Solicitor on to talk about it and we’re gonna go through.  We have not forgotten that the U.K. is on fire, too!  We’re just, you know… [Laughs] This came up.  So next week we’re gonna cover Brexit but that’s the news with respect to that.  I wanted to plug, in the Washington Post article, [Laughs] you wanna talk about how at least England has not fallen as far as we have, in a statistically significant poll in the United Kingdom 81% of respondents agreed that the U.K. Supreme Court’s decision should be viewed as final and authoritative, 78% believe people should comply with it even if a majority disagrees with the decision.

Thomas:         Hmm.

Andrew:         65% think the Court should have the authority to overrule the government even if the majority agrees with its decision.  82% agree that there’s an obligation to require government ministers to comply with their decisions.  That is-

Thomas:         So basically they still believe in the rule of law over there.  That’s nice.

Andrew:         They still do over there!  Which is really kinda novel, so…

Thomas:         Yeah, that’s cool. 

Andrew:         I’m jealous, but you know.

Thomas:         Enjoy that, everybody, British friends.

Andrew:         We’re gonna impeach a monster so, you know, it’s all good.

Last call for Tickets to the live show

Thomas:         Yeah.  Well I mean, of course, buy tickets to our live show!  October 12th, L.A., come see us, it’s a ton of fun, it will be the best, so much fun!  Special guest Carrie Poppy and just come see the show.  If you’re anywhere near come see it, there are still tickets left and we can’t wait to see you.  It’s gonna be so much fun!  October 12th, live show, L.A.  Okay.  Let’s get to it!  Our guide to impeachment!

Why President Trump’s Conduct Towards Ukraine in Particular is so Reprehensible

[Segment Intro]

Andrew:         Yeah, so let’s begin.  Breaking news [Laughing] in between our mammoth two-plus hour record for patrons on episode 318 and now, news came out that exactly matches what we predicted in that bonus segment, which is Speaker of the House Nancy Pelosi says that Ukraine will (quote) “be the primary focus of impeachment” (end quote).  We predicted that in the main show and we tell you exactly why that is in the bonus segment, so that’s a – we can’t pat ourselves on the back but-

Thomas:         We can!  Here, I’ll help.

Andrew:         Okay.

Thomas:         Let me do it!  “Pat, pat, pat, pat!”

Andrew:         [Laughs]

Thomas:         There.  We did.

Andrew:         I appreciate that.  No, I feel good that we’re reading the situation correctly.

Thomas:         While we’re back-patting, I want to lead the audience in a round of applause for Andrew Torrez.  Killer work on these past episodes, from the first explainer on the whistleblower and the bonus episode that was so good, and then following it up with two hours for patrons.  That was all very well structured and laid it out perfectly.  [Clapping] So round of applause, everybody!  Round of applause for Andrew Torrez.

Andrew:         Thank you!  So in one sense I don’t know how much credit I deserve for that prediction on Ukraine because this, in my view, this story has a way of drawing the threads together and moving the public that makes it really kind of come home.  And again, it shouldn’t be the standard.  Watergate was about a third-rate burglary to cover up the fact that Richard Nixon was trying to gather political intel on George McGovern-

Thomas:         Yeah.

Andrew:         -whom he beat by 800 million electoral votes.

Thomas:         [Laughs]

Andrew:         Right?  Like, if this were Donald Trump, seriously, you would have Republicans being like, “well what does it matter?”

Thomas:         It’s amazing how similar this is, actually, now that I think about it.

Andrew:         [Laughs] Yeah, right.  I think that’s right.  [Laughs] I wanna talk a little bit about Ukraine and about just how bad the effort to solicit a bribe from the President of Ukraine really is, here.  You reference – I want you to plug the documentary that you mentioned in the bonus episode, I forget the title.

Thomas:         Oh, Winter on Fire.  Yeah.  Haunting.

Election of Victor Yanukovych

Andrew:         Yeah.  I haven’t seen it, I did a lot of independent research on this, and, again, Ukraine goes back to 2005 when Pauly Manafort went over to Ukraine to take control of a candidate, a pro-Russian stooge named Victor Yanukovych. 

Thomas:         Yeah!  I think that’s the villain of that documentary, I’m pretty sure.

Andrew:         Yeah, he’s the villain because he’s an evil, evil monster!  Okay?

Thomas:         Okay, sounds right!  Yeah, okay.

Andrew:         In 2006 the U.S. embassy in Ukraine described Paul Manafort’s job over there – so this is – he’s a year in, spoiler!  Yanukovych would get elected President of Ukraine in 2010, it was a four-year effort, and the U.S. embassy said, “[Sighs] You’ve got Paul Manafort over here and he’s (quote) giving an extreme makeover to a Presidential hopeful who has the backing of the Kremlin” (end of quote).  His party of regions was described as (quote) “a haven for mobsters and oligarchs” (end of quote). 

This is coming from reporting in Time Magazine, which I will link in the show notes.  [Laughing] I’m just gonna read what they say.  “Oafish and inarticulate, Yanukovych had served jail time for theft and battery.  He had a hard time speaking Ukrainian, the national language, as he had grown up in the Russian-speaking province of Donetsk,” I’m probably mispronouncing that, it’s spelled D-O-N-E-T-S-K but it’s probably pronounce throat-warbler mangrove, but-

Thomas:         [Laughs]

Andrew:         So you have an oafish criminal who does not speak the language, that’s who Paul Manafort was sent over there – and we should add, Tad Devine, Democratic strategist, others in the United States across both parties profited on going over and engaging in an “extreme makeover” from the United States for how to get a criminal elected.  This was backed by an industrialist, a billionaire, a person worth $6.4 billion dollars, named Rinat Akhmetov, who was an early backer of the Party of Regions.  He’s a pro-Russian, Ukrainian oligarch.  He is one of the people – if that name sounds familiar, if you’re like “Akhmetov?  I’ve seen that before.”

Thomas:         From Spiderman 2, I think.

Andrew:         [Laughs] Yeah, he does not have 8 arms, but-

Thomas:         Oh.

Andrew:         No, he’s mentioned in the Congressional investigations because [Sighs] he, along with Konstantin Kilimnik is one of the people that Paul Manafort gave polling data to in 2016.  So Manafort and Devine and other scumbags got this oafish criminal elected.  He was, as I said, a Krelmin stooge.  That is not my opinion, he fled the country-

Russian Invasion

Thomas:         It’s on his business card.

Andrew:         Yeah, no!  He fled the country in 2014 and now lives in exile in Russia.  He was tried in absentia and sentenced to 13 years imprisonment for high treason in 2019 by Ukrainian court.  So convicted of treason, right?  Let that sink in for a minute.  Before we let it sink in let me describe what happened in the power vac – imagine if Donald Trump decided that he was going to flee to Moscow tomorrow.

Thomas:         [Laughs] Yeah.

Andrew:         The power vacuum that was left behind meant that Russian soldiers that were on the border of Ukraine commissioned a unit, had them go undercover without insignias and invade the Ukrainian territory of Crimea.  They took control of strategic positions and infrastructure – this I am reading now from Wikipedia – and then Russia annexed Crimea, that is, said “no this is now a part of Russia” in November 2014, so six months after that. 

Ukrainian military reported intensive movement of troops and equipment from Russia into eastern Ukraine and Crimea.  Again, I’m gonna quote from Wikipedia.  “According to the Moscow Times, Russia has tried to intimidate and silence human rights workers discussing the conflict, the majority of members of the international community have condemned Russia for its actions in Ukraine accusing it of breaking international law and violating Ukrainian sovereignty.  The Russian incursion into Ukraine has killed 13,000 Ukrainians, wounded 30,000 more, displaced 1.5 million people, 7% of Ukrainian territory is under occupation.”  7% is a lot!  7% would be if Canada-

Thomas:         Really depends on if it’s by area or by population.  I mean, you can take 7% of Montana or whatever, I don’t care, that’s fine.

Andrew:         [Laughs] That is four U.S. States being occupied by Canada, for example, okay?

Thomas:         Again, if it’s Montana, some of those states, it’s fine.

Andrew:         [Laughs]

Thomas:         You can have them.

Andrew:         So let’s be clear what happened here.  We have an ally, we have a bulwark against a hostile foreign power in Russia.  We have a country where we intervened in a bi-partisan way, sent our scumbag dirty-trickster political operatives to help elect a Kremlin stooge, a criminal, a thug, President of that country.  He then proceeded to sell Ukraine out to the Russians, abdicated, fled to Russia, lives there in exile, was tried in absentia for treason, and his fleeing sparked a 5-year war that has displaced a million-and-a-half people, killed 13,000, wounded 30,000 more. 

Why Trump’s Ukraine call is really bad

So when you call, as Donald Trump, the newly elected President of Ukraine and they say, “hey, uh, about that $250 million in aide that your Congress has authorized to send us?”  This is not just geostrategic, “oh we gotta make sure” – this is a desperate country that is being occupied, that is at war with Russia.

Thomas:         Yeah.

Andrew:         Whose citizens are being killed.  Now, Congress approved $250 million dollars in aid.  Those military shipments include $50 million dollars in weapons and $200 million dollars in training – equipment, intelligence support.  The weapons include night-vision goggles, electronic warfare-

Thomas:         Just one pair which makes it awkward.  They all have to share.

Andrew:         [Laughs] Yeah, right!  Right, one.

Thomas:         Can I use the goggles?

Andrew:         [Laughing] Yeah.  So it is despa – it is hard to imagine being more over the barrel than the President of Ukraine-

Thomas:         Yeah, it’s not the same as $250 million dollars to us, it’s way different.

Andrew:         Yeah.

Thomas:         For us that’s kind of like, whatever, some line item in the budget that we don’t even know about.

Andrew:         Imagine if citizens of Texas were being – if half of Texas was occupied by Mexico and U.S. citizens, and millions of them, were being displaced – on a per capita basis, millions were displaced, hundreds of thousands were being killed, and you’ve got the source, the supplier of weapons, to be able to defend your territory is like “well, I’d love to send you some weapons and some training, but first [Mob Boss impersonation] you gotta do a favor for me.”

Thomas:         Yeah.

Andrew:         That is appalling on a humanitarian level that – I’m not surprised, but that part of the story needs to be told.

Thomas:         Mm-hmm.

Andrew:         We mentioned in the bonus episode, I’ll repeat it here, news that the Office of Management and Budget, that is an executive agency under the direction of President Trump, had placed a hold on funding for the Ukraine security assistance initiative, the $250 million dollars in funding – was reported in the news, August 28th by Politico.  That was after this Complaint had been made, before this Complaint was made public. 

The administration, as usual, lied about it.  The administration said “well the President wants to ensure U.S. interests are being prioritized when it comes to foreign assistance and is seeking assurances that other countries are paying their fair share” (end of quote).  That is 100% false, it was knowingly false at the time that the Trump administration officials were saying it, we now know, we have hard evidence in the form of the TELCON transcript that, in fact, what was being done was withholding the funds while the President of Ukraine was being dispatched as an errand boy to dig up campaign dirt on Joe Biden’s non-political son.  That’s appalling.

Thomas:         Yeah, I’d say so.

Andrew:         Yeah.  So that’s the giant lie, and that is part of the reason, although not all of the reasons, why Nancy Pelosi has indicated that Ukraine is going to be the tip of the spear in terms of the House impeachment inquiry.  A

s we said in the bonus episode, that vote will probably take place by the time this episode airs at least in the main timeline we are now well over the 218 votes necessary for a full House authorization to begin an impeachment proceeding, and I thought I would walk through what that means, why you begin an impeachment proceeding.

Thomas:         So it was funny, as I was about to ask a question, I was like “oh, I have a question about that,” and I was like “oh, yeah, that’s the episode we’re gonna do.  Never mind, let me let you start doing the episode.”

Andrew:         [Laughs] No, go ahead!

Thomas:         No, no, no!  It’ll be, I’m sure there will be a better time within your episode about the process.

Andrew:         [Laughs]

Thomas:         And if not I’ll still ask it.  So let’s go to our main segment on impeachment.

Why Beginning an “Impeachment Inquiry” Matters

[Segment Intro]

Thomas:         Alright, here it is!  Walk us through it! [Laughs]

Disclaimer on purpose of impeachment

Andrew:         So let me give a little bit of a disclaimer first.  I think our listeners know this, but I see it in other places and you and I have been super clear about this.  I have seen a handful of the Occupy Democrats-level of saying “well look, Mike Pence is said to be involved and the third in line would be the Speaker of the House so we’re gonna get President Nancy Pelosi.”  No.  You will. Not. 

We are not impeaching Donald Trump because the outcome will be better.  I strongly suspect at this point – I don’t wanna say strongly suspect.  It’s possible that this will drive him from office, it’s possible that it won’t.  If it does it will only be possible to drive him from office and replace him with Mike Pence.  It is not – there is zero chance that any Republican will allow the levers of the executive to change from Republican to Democratic.

Thomas:         Yeah.

Andrew:         Not gonna happen.

Thomas:         Yeah, it’s stupid.

Andrew:         Don’t be thinking of it that way.  Yeah, don’t defend it in those terms.  This is not about changing the outcomes, this is about standing up for the rule of law.

Thomas:         Yeah.

Andrew:         Mike Pence is a monster, he’s gonna be a horrible President!  It is not about that.  This is about vindicating the idea that nobody is above the law, this is about restoring normalcy.

Thomas:         Yeah, you don’t get complete immunity from any consequences just by finding the one guy who might be worse than you and making them your Vice President.

Andrew:         [Laughs]

Thomas:         That’s not a free ticket to do whatever.

Andrew:         Yeah.  We don’t negotiate with terrorists, that’s right.  I also wanna add, part of what I’m gonna talk about in this segment is that the actual Congressional requirements on impeachment – the actual Constitutional requirements on impeachment, are pretty bare-bones. 

What the Nixon Articles of Impeachment Looked Like

So a large part of what we’re doing is following the precedent set by the Nixon Articles of Impeachment that were voted out, and then Nixon resigned.  They were voted out of the House Committee, the House Select Committee on Impeachment, they were not voted on by the full House, Nixon resigned by then once it was clear that the writing was on the wall.

Thomas:         Mm-hmm.

Andrew:         And the Bill Clinton impeachment.  The reason – these are small “p” precedent, this is not legally binding that this is what has to happen, but remember that throughout this process the Republicans are gonna throw everything they can at the wall, so to say “we’re doing exactly what historically has always been done” is a good way of-

Thomas:         Hmm.

Andrew:         It’s not gonna stop Fox News from making stupid arguments, but, you know-

Thomas:         A little safer?

Andrew:         -to the average person, yeah!  We’re not creating a new rule.

Thomas:         Yeah.

Step One – Impeachment Inquiry

Andrew:         So that’s the first reason that you want to begin an impeachment inquiry.  But there’s a second reason that’s really, really important.  We talked about this in the bonus episode. 

One of the main reasons you begin an impeachment inquiry is because that is an officially authorized function of the House of Representatives, and one of the arguments that Donald Trump has been making – we’ve talked about this on this show – in legal briefs, in the cases pending in the District Court for the District of Columbia, the Trump administration has argued that these are improper uses of the House powers. 

So, for example, in the Mazars case which is now pending in the 2nd Circuit, the Trump administration has said “we’re not gonna give you Donald Trump’s tax returns, and Mazars (that’s his accounting firm) shouldn’t have to turn over his taxes because you’re not asking them for an official purpose.  This is really akin to a criminal investigation and that’s not your job, House of Representatives, your job is to pass laws” and the House has been saying – and, again, I think they were likely to win on this argument anyway – “yeah, but one of the laws we’d like to pass is a law requiring Presidents to have to turn over their tax returns.”

Thomas:         Hmm.

Andrew:         “Finding this out is crucial to that law-making process.”  That argument, I think, had an 80/20 chance of succeeding.  The argument, “yeah, we want these because we have begun an official impeachment investigation”-

Thomas:         [Celebratory] We’re impeaching baby!  Do you hear that yodeling, Your Honor?

Andrew:         [Laughs] That has a 100 to zero chance of succeeding.  We now don’t have to deal with – and, again, I flagged for this.  William Consovoy was able to use the dithering back and forth by the House of Representatives in a pleading!  Was able to quote Nancy Pelosi and even Adam Schiff saying “woah.”

Thomas:         That wasn’t a terrible argument, right?  In my memory of what you’re saying.

Andrew:         Yeah!  It’s a good argument, yeah.  Look, because – this is a slight sidebar, but one of the things I always try to do, it’s something I’ve mentioned again and again since the beginning of the show is when you argue before a judge you have to have – the worst thing that can happen is when you lack credibility. 

When the judge looks at you and says “I don’t believe what you’re saying.”  So we’ve talked about this in writing briefs, it’s why one of the things you do is you acknowledge the cases that go the other way in your brief.  You say yes, there’s this and this but here’s why they’re not – the more honest you are the more, in my view, you preserve your credibility in front of the judge.  So when somebody has a point like that, to the House Judiciary Committee, well isn’t it true that on one hand you’ve said you are looking into potential impeachment, on the other hand you’ve said that you’re not.  That’s a tough – that undermines your credibility. 

So now you have absolutely undercut that argument, and as a bonus-

Thomas:         Before we tell them what the bonus is, we’ve gotta take a quick break.  We’ll be right back!

[Commercial –]

Thomas:         Alright, Andrew, what’s the bonus?  Lay it on us!

Andrew:         Ah, you are so evil cutting in the commercial right there, I love it!

Obstruction of Justice Claim

Thomas:         [Laughs]

Andrew:         I mean, not Tad Devine evil, but evil. [Laughs]  So the obstruction of justice statute that applies to the President, 18 U.S.C. § 1505, “whoever corruptly influences, obstructs, or impedes, or endeavors to do any of that, any pending proceeding or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either house is guilty of a felony.”

Thomas:         Oooh.

Andrew:         This is now, again, we talked about this particular provision as applying while the Mueller investigation was ongoing, that was a pending proceeding.  Arguably, when the Mueller proceeding wrapped up – I don’t wanna give Trump’s lawyers any cover for that interregnum – but I could see them saying, “well, look there’s no ongoing investigation so our efforts to obstruct the Mueller investigation after it’s closed are not 18 U.S.C. § 1505 obstruction of justice,” and they would have some kind of argument. 

Once the impeachment inquiry is underway that is an official, proper exercise of the power of inquiry.  It’s right in the name!  Anything Trump does to (quote) “influence, obstruct, or impede,” or anything he does to (quote) “endeavor” to do any of those things is now a separate offense.  So this goes back to the cover up is worse than the crime.

Thomas:         Hmm.

Andrew:         The cover up is a crime!  So having an official impeachment investigation, again, removes all doubt. 

Thomas:         Nice!

Andrew:         Yeah! 

Thomas:         And are we there?  Because I still – I got a little confused in that, you know, this is something that I don’t wanna talk about – someday I wanna talk about in the aftermath maybe what Pelosi was doing, what Democrats were doing and all that because among left Twitter there’s a lot of arguments back and forth on this. 

So we weren’t there, it sounds like, even though some people were saying we were in some level of impeachment inquiry unofficially?  It’s all been very confusing, but now it still – Pelosi it sounds like, in her announcement which I watched, it still is an impeachment inquiry, right?  But is that the thing?  Are we there?

Andrew:         Yes, that’s the thing- 

Thomas:         Okay, so her saying that is the thing.

Andrew:         Yeah, that is not “we’re gonna go straight to the vote,” although-

Thomas:         But that is what I was gonna ask you.

Andrew:         Yeah.

Thomas:         I heard someone say, or I saw someone say that you really don’t wanna go to the vote because we want the time – once the vote happens then it’s just in the Senate and then Mitch McConnell probably will not even do it or anything.  Like you wanna have all the – is that accurate?

Andrew:         That is exactly accurate.

Thomas:         Okay.

The Clinton Impeachment Timeline

Andrew:         And I’m gonna walk you through the timeline of what happened in the Clinton impeachment, but I’ll flag for you now the difference. 

Where this is going to be different than the Clinton impeachment is the Clinton impeachment, the impeachment investigation, was immediately followed by the recommendation out of the House Judiciary Committee for a full vote on the House of Representatives to impeach the President and the reason was they didn’t need to do their own investigation, they had the Whitewater report, right?

Thomas:         Hmm.

Andrew:         They had the Starr report.  So that would have been-

Thomas:         Gotcha.

Andrew:         -the course of action if we had proceeded to impeachment over the Mueller report.  I think we should have, I think there were – my position on that is well known.  This has not been fully investigated and so the importance of the investigatory part of it is exactly that, so the House is going to conduct that investigation.  It will not be outsourced to anyone, and that may solve [Teeth clenched] some of the problems that we had with what happened with the Mueller report.

Thomas:         Yeah.

Andrew:         This will not be in a career Republican’s hands.  And, again, look, we fully vetted Mueller.  [Laughs] So this is – the salient point of difference is that there was not an independent investigation, it was a rubber-stamping of what Ken Starr found, because Ken Starr did the thing that the Republicans in the House Judiciary Committee wanted him to do. 

Here we have a separate investigation, and you are 100% correct that that has to be a real investigation.  The reason that that has to be a real investigation has to do with the timeline.  I was gonna cover this later, but I actually think it probably makes sense.  Let’s talk about the Clinton timeline now.

Thomas:         Mm-kay.

Step Two – Articles of Impeachment

Andrew:         Okay?  The 100% occurred in the lame duck session of the 1998 Congress.  In that 1998 Congress, Newt Gingrich assured the Republicans that by campaigning on impeachment that that was going to win 30 Congressional seats in the House of Representatives for Republicans, it was a mid-term election year, and as it turns out the Republicans lost seats in that mid-term election. 

So in the lame duck session they convened the impeachment inquiry in November, they voted out Articles of Impeachment on December 19, 1998.  They voted out two of the four articles that were drafted, so even within the House of Representatives, of the four articles that were drafted against Bill Clinton only two were voted out of committee.  Those were perjury and obstruction of justice. 

Step Three – Formal impeachment convenes

That was sent to the full House of Representatives, which, again, approved on a party-line vote those two articles, so impeachment was formally convened on January 7th of 1999.  That’s two-and-a-half weeks, over the Christmas holiday, over the winter holidays, from the vote out of committee to convening the actual impeachment trial in the Senate. 

Step Four – Opening Statements

We then had January 14th and 15th, those were the opening statements by the House managers, those are the members, the Republican members of the House Judiciary Committee who were appointed Special Managers, that means the prosecutors of the impeachment.  That is what will happen here, by the way.  Democrats, Adam Schiff, will wind up being the lead prosecutor if impeachment is voted out of the full House of Representatives. 

So we had two days of opening statements, January 14th and 15th, and we had a weekend.  Then we had three days, January 19th through the 21st of opening statements by the defense.  I should add, we’re gonna go back and fill in how do these rules happen, I was gonna do that before going to the timeline but I jumped ahead to the timeline because I think it made sense here. 

Compelled Witness participation

The Senate was controlled by Republicans at the time, 55-45, but not obviously two-thirds.  You need 67 to convict on impeachment.  So this was a Republican House and a Republican Senate.  Two days of opening statements, three days of opening statements by the defense, a brief cross-examination period on January 22nd, then there was a court order for Monica Lewinsky to meet with the House Managers. 

So, again, we have precedent of somebody who initially did not want to be part of the process, there was a court order that said “yes you do,” so remember that when material witnesses decline to participate in impeachment, we have precedent that they are required.  The very next day Lewinsky met with the House Managers, the day after that (we’re now January 25th) the Managers said “we’re gonna go forward and we’re gonna try this case with three witnesses.”  Just three. 

Motion to Dismiss

After that the Democrats then formally moved to dismiss, so keep that in mind.  We’re gonna talk about all the ways Mitch McConnell can obstruct this.  After initial statements, Republicans could move to dismiss the impeachment.

Thomas:         Hmm.

Andrew:         They would be within their rights, it would be exactly the same thing that happened in the Clinton impeachment.  And, again, this is a fairly smart move by the Republicans at the time.

Thomas:         Is that different – sorry, just making sure – you’re talking about the Senate, right?

Andrew:         Yes.

Thomas:         So is that different than just voting not to convict?  I guess it must be because-

Andrew:         Yeah, it would be before you hear testimony from any witnesses.

Thomas:         What would be the difference?  Why would you – I know it’s a typical thing that happens in lawsuits, you do the Motion to Dismiss or whatever.  What is a hypothetical impeachy-thing [Sighs] that would survive – yeah, what wouldn’t survive a Motion to Dismiss and what would in this context?  I guess.

Andrew:         So, excellent question.  Let me give you the best answer that I can.  As we said in the bonus episode, a President can be impeached for high crimes and misdemeanors. 

High crimes and misdemeanors are not necessarily encompassed by the scope of criminal offenses.  There are things that are not necessarily a criminal offense for which you could be indicted that would nevertheless constitute a high crime or misdemeanor, and the example we gave was the President just decides not to show up, literally moves to the mountains, disconnects his phone, and says “I’m not doing this anymore.”  100% that President would be impeached for the high crime and misdemeanor of failure to take care that the laws of the United States be faithfully executed and failure to uphold his oath to uphold and defend the Constitution of the United States of America even though not a crime to be by yourself in a cabin! 

On the other hand there are crimes that you could imagine a President committing for which you would say “yeah, that’s not a high crime and misdemeanor.”

Thomas:         Yeah, like jaywalking, speeding ticket.  [Laughs]

Andrew:         Arguably, take the Spiro Agnew example, for example.  Arguably you could say, “suppose you uncovered a crime with no statute of limitations that-

Thomas:         Oh, took place a long time ago.

Andrew:         -occurred, yeah, prior to the President assuming office.  You could have them say “yeah, you could be tried for this and there’s no statute of limitations, once you’re out of office you could be tried on that, but that had nothing to do with you being in office, getting into office or your conduct in office.”

Thomas:         Hmm.

Andrew:         “So it’s not a high crime or misdemeanor.”  That would be open to deliberation within the Senate. 

So the Motion to Dismiss, and this was the argument the Democrats made, was akin to a Motion to Dismiss in a normal criminal or civil trial, which was “these facts, even if true, do not amount to high crimes and misdemeanors.”

Thomas:         Okay, but don’t they just vote on that anyway, though? 

Andrew:         Right.

Thomas:         It’s not like the Supreme Court does it or something?

Andrew:         Right, but they would vote before there was any testimony.  So the Democrats argument, remember the two Articles of Impeachment that were referred out by Clinton were perjury and obstruction of justice, and they said “look, on these facts, this crime, lying about a consensual sexual affair-

Thomas:         Hmm.

Andrew:         -and covering up the evidence of your consensual sexual affair is not a high crime and misdemeanor even if you prove all of that.”  And the Senate said, “okay, you get to vote on that, you get to move to dismiss, Democrats.  Let’s vote!  Okay, 56-44 you lose.”  An interesting thing about that vote, I told you the Senate was 55-45-

Thomas:         Mm-hmm.

Andrew:         That was Russ Feingold who voted with the Republicans, who said “no, let’s not short-circuit this process.”  Again, Russ Feingold, probably the most liberal member of the Senate at the time.  Not a Joe Liberman, not somebody – somebody who was very vocal.

Thomas:         You mean most liberal Republican or –

Andrew:         No, no!  Most liberal Democrat.

Thomas:         Oh, okay.

Andrew:         He was a Democrat, yeah.  So Russ Feingold, from Wisconsin, probably the most liberal member of the Senate at the time, was not in favor of Clinton’s impeachment-

Thomas:         Wasn’t Bernie Sanders in the Senate at that time?

Andrew:         I think he was in the House at the time.

Thomas:         Oh, okay.

Andrew:         And, again, don’t wanna quibble, but Feingold was really super duper-

Thomas:         I was just wondering, yeah.

Andrew:         -liberal.  And what I’m saying is, I love this going back because it’s really easy now to say “boy, we were under attack by Newt Gingrich and we rallied to Clinton’s defense and maybe we should have done things differently.”

Thomas:         Mm-hmm.

Andrew:         You and I have expressed that position on the show.  Russ Feingold did at the time.

Thomas:         Yeah.

Andrew:         And he deserves some retroactive, being called out for it.  He was like “no, the House voted out Articles of Impeachment, let’s hear the evidence, I’m not gonna pre-judge, I’m not gonna vote for a Motion to Dismiss.” 

But put a pin in that because there is nothing to stop the Republicans from saying “we’re gonna do exactly what we did with Bill Clinton, that is move for a Motion to Dismiss that says even if all this is true it’s not sufficient to constitute a high crime and misdemeanor.”

Thomas:         I guess my question is, politically this probably won’t make any difference because the people who are against impeachment in the Senate are gonna be – they’ll vote the same way for either the dismissing it or the conviction, right?  Most likely?

Potential for Suppressing Witness testimony through dismissal

Andrew:         Yes and no.  The difference that it makes is if you successfully move to dismiss then we don’t hear any testimony.  All we hear is the opening statements and then-

Thomas:         Yeah, that wasn’t – so I’m not saying it’s the same outcome either way, I’m just saying whatever the vote is against conviction is likely going to be the same people who will vote on – right?  All I’m asking is, politically and practically I understand these are two different outcomes depending on which way the vote goes.  I’m saying do you see any Republicans who would give you a sign that they would vote one way in dismissing it but another way in conviction?

Andrew:         Yeah, got it.  So basically I interpret that as “are there any Republican Feingolds” right?

Thomas:         Sure.

Andrew:         Right now I don’t know if there are, but it illustrates, I think, the importance of the investigatory process and the public management process, which is we need to convince at least four members of the Republican party to become Russ Feingolds if there is going to be testimony of any witnesses in connection with this.

Thomas:         Hmm.

Andrew:         Now we have some potential indication that this is so serious that we may be able to find those folks.  I don’t know that I can identify who they likely are right now.

Thomas:         Well, it’s a pretty slim margin.  Sorry, apologies if you said this, but this is just a straight-up 51-49 thingy, right? 

Andrew:         It can, in fact – Mike Pence can cast the tiebreaking vote.

Thomas:         Wow.

Andrew:         In fact, Bill Clinton, the second count, the obstruction of justice count, was 50-50, Al Gore cast the tiebreaking vote.  [Laughs] And again, that was five Republican defections.

Thomas:         Oh, this Motion to Dismiss vote is on each charge, it sounds like?

Andrew:         Yes.

Thomas:         So each different – okay.  Interesting.  So we only need a couple of Republicans at least to get to that point, it sounds like.

Andrew:         Correct, that’s right.  We need four.

Sidebar – McConnell Delaying Vote Indefinitely

Thomas:         Can I ask?  You covered this a while back that you actually thought McConnell could just never bring any of this up, but does that still apply?

Andrew:         That absolutely applies.

Thomas:         Even to this vote.  So any vote.  We could conceivably see the House vote to impeach and then McConnell’s like “nah!”

Andrew:         We absolutely could see that.

Thomas:         Dang.

Andrew:         That is OA 272, go back.  I went back and I [Laughing] listened to that in preparation for this show.

Thomas:         We were so young then!  We had mustaches.

Andrew:         Oh, it’s true.

Thomas:         Bell bottoms.

Andrew:         And that has to do with the Supreme Court case that is directly on point, it is Nixon v. McConnell but it is neither Richard Nixon nor Mitch McConnell.

Thomas:         [Laughing] Or Mitch McConnell!

Andrew:         It’s a great coinc- it was a federal judge named Nixon.

Thomas:         Oh that’s funny.

Andrew:         And the Supreme Court says that the Senate’s sole power to try means that it is not subject to (quote) “any limitations on how it could conduct a proceeding” (end quote).  So yes, Mitch McConnell could 100% Merrick Garland this whole thing, it is yet another reason why it is important that the House Investigatory Committee do its work and make the case in the public.

Thomas:         Yeah.  Because otherwise nothing will happen.

Andrew:         Yup.

Thomas:         You could conceivably – the worst case scenario would be “yup, this is so bad we’re voting to impeach right now!” and then that’s the end of it! [Laughs] Essentially nothing could happen.

Clinton Timeline – Dismissal rejected

Andrew:         Yeah, that’s right.  Now, even if we get through that, so let’s go back to the timeline.  January 27th the Democrats move to dismiss, that was rejected 56-44 with Russ Feingold voting with the Republicans.  So we went forward to putting on the trial and it went this way.

Thomas:         Before we tell them how it went.

Andrew:         Oh, yeah, yeah! [Laughs]

Thomas:         Let’s take a quick break.

[Commercial –]

Thomas:         Alright, how did it go?  Tell us!  We’re here for the thrilling conclusion of impeachment.

Andrew:         So February 1st was when the House Managers deposed Monica Lewinsky and the other witnesses via videotape.  That happened over the course of two days.  On February the 4th the Senate voted not to have live testimony.  Now you may say, “that seems weird.”

Thomas:         Hmm.

Andrew:         I think the reason was they were concerned that Monica Lewinsky would be a sympathetic witness in live testimony, that you would have a legion of James Sensenbrenner, these old fat white Republican men beating up a 23-year old woman and that it would look bad, so they voted not to have live testimony. 

Step Five – Witness Testimony

There was two days, February 6th and 7th, in which the deposition testimony that had been videotaped was aired before the Senate and broadcast live on national television.  That’s it.  So when I said, pull out the pin from the very beginning, when I said I had some mistaken recollections, if you had asked me the over/under is two days of testimony in the Clinton impeachment I would have wagered every dollar I have ever owned – well obviously over.  Two days.  That’s it.

Thomas:         Wow.

Step Six – Closing Arguments

Andrew:         Then February 8th, closing arguments, that’s it!  Half a day each for both sides on closing arguments. 

Step SEven – Senate Deliberations

Senate deliberated starting February 9th, over the weekend, then February 12th they voted to acquit on both counts. 

Step Eight – Vote to Acquit

As I said, the perjury count was count one and the vote was 45-55, there were 10 Republican defections.  The obstruction of justice count, count two, was 50-50.  Al Gore cast the tiebreaking vote, still a vote in the Senate, Vice President is still the President in the Senate in power to break ties.  That was 5 Republican defections.  So just so you know, in that entire process, start to finish less than three months.  That was less than three months over the holidays. 

ALL the ways Mitch McConnell and the Republicans can Try and Screw this Up

So, again, once things get going things get going, but that’s how the Clinton impeachment process worked.  There’s one more thing that I want to flag for you.  Oh, and I do wanna give credit, my buddy George Delta, I met with ya yesterday, he passed on the quote from a German economist named Rudi Dornbusch, who was quoted as saying that “the crisis always take longer to begin than you expect and unfolds much faster than you expect.”

Thomas:         Hmm.  Yeah.

Andrew:         I thought that was dead on. 

One more thing, I have assumed here that the process itself will track the Clinton impeachment.  That assumption is not necessarily the case. 


The Senate has defined rules, I’m going to link them in the show notes.  They were passed in 1986, which is a weird time for them to be passed.  They were advanced by Charles “Mac” Mathias, a liberal Republican senator from Maryland.  I dunno why in 1986, there was zero – Ronald Reagan had just been reelected in the largest landslide in American history, there was zero talk that he was going to be impeached. 

Nevertheless the Senate requires a 2/3 vote to change its rules, so they got 67 votes together, and they passed 26 specific rules about how to conduct an impeachment proceeding.  Now you’re sitting there thinking, “okay, well it takes 2/3 to change the rules, we only have 53 Republicans, they’re not going to be able to change the rules.” [Sighs] Not so fast.  [Chuckles

If there is an ambiguity in the rules there is a procedure, in Roberts Rules of Order, called appeal to the decision of the chair.  That is to say, “hey look, we have a dispute over what this rule means, we want an official ruling” and that ruling is subject to straight majority vote and that process, that Appeal to the Decision of the Chair thing, is the basis for the nuclear option that was used to withdraw the filibuster with respect to Supreme Court nominees. 

So, in other words, I realize that was a lot of legal jargon all at once, let me try and put that all together for you.  While there are rules in place, the Senate will be able to adopt, practically speaking, any rules they want to govern the Trump impeachment, and they will just call them clarifications to the existing rules put in place by Appealing to the Decision of the Chair.  The Chair, by the way, is Mitch McConnell.

Thomas:         Yeah.

Andrew:         So they can, anything they want from a procedural perspective, they will be able to vote, cram down, and pass by a bare 50/50 majority. 

Thomas:         Cool!

Andrew:         Again, yeah! 

Thomas:         It’d be nice to peel off Mitt Romney or somethin’.

Andrew:         Sure would be.

Thomas:         Could use two or three Senators.

Andrew:         Yes we could.  And that kinda goes back to where we began. 

This whole process of Yodel Mountain is, we’ve described the Supreme Court as trying to shame Justice Roberts; this is trying to shame your Republican Senators and convincing them that they have more to lose – if they have no sense of decency, if they have no sense of loyalty to Country, at least trying to convince them that they have more to lose by rigging the rules in favor of President Trump. 

I wanna be super clear on this because it’s what we have to be on the lookout for, the more attenuated a rule seems to be the easier it’s going to be for Mitch McConnell to cram it down.  So, you know, you have a rule that says “okay, you’re limited to three witnesses.”  They’re gonna be able to argue that super duper easy, because we only had three witnesses in the Clinton impeachment, what was fair for them is fair for you.  Never minding that the conduct is – that we may need a dozen people to put that together, you have to be prepared for three witnesses, or maybe zero witnesses. 

All of these procedural rules are up in the air.  We are limited to three witnesses over two days.  If that were to go forward I think those of us on the left would kind of look at it and howl but there would be absolutely nothing we could do about it, and it would be 100% … I don’t wanna say defensible in a moral sense, but you could make a straight-faced argument that that was the process.

Thomas:         Hmm.

Andrew:         We’re going to track what happened in the Clinton impeachment.  So I just want everybody to be ready for where the battleground is going to shift and how we can be prepared on that.  It’s why, as we said on the bonus episode, we predicted that Nancy Pelosi was gonna want to narrow the focus of the impeachment investigation because you’re gonna need to be able to make it in a soundbite way, in an efficient way, with a minimum number of witnesses, in a way that the average person can understand. 

I believe that can be done.  I’ve been a notorious optimist this whole – I believe that can be done.  We’re gonna see, but I wanted to flag all of those issues.

Thomas:         Okay.  But I think we need to be ready for – the thing that’s going to happen is the House proceedings and – don’t we need to pretty much get out ahead of, we know for the most part the Senate’s not gonna do their job, we can’t – now that it’s gone where it has there were downsides, there were always downsides to trying to impeach and then either McConnell doing nothing or instantly somehow dismissing it through that vote you talked about, so we’ve gotta be ready for that and the fact  that we all need to get the message out that that doesn’t mean “no collusion, no crime,” whatever, no bribery, whatever it is, the House is the thing.

Andrew:         Correct.  Hey, I just wanna point, I’ve got a Google alert that just popped up.  Vermont Governor Phil Scott, Republican (now, Republican from Vermont but still, Republican) has come out in favor of impeachment proceedings.

Thomas:         Oh, well when the governors vote that’ll be perfect.

Andrew:         [Laughs]

Thomas:         When do they factor in?

Andrew:         I get it, I get it!  But the more-

Thomas:         Yeah, not nothing.

Andrew:         No, not nothing.  That’s the right way. 

Thomas:         [Laughs]

Andrew:         I will defer to you on not nothing, that’s a better way than I could’ve put it.

Thomas:         Yeah, alright.  Well hoo!  We did it, Andrew.  Good job.  We got through what was effectively three episodes in a row. 

Post-Show Announcement – Live Q&A

We need to announce, it crept up on us so fast, another Q&A, the monthly Q&A we try to do it right around the end of the month.  We’re gonna be a little bit late this month, but there’s a lot going on, you can forgive us.  This’ll be October 6th, that’s Sunday October 6th.  Ooh, it’s the week of the live show!  Live Q&A, it might not be on YouTube anymore because YouTube totally screwed us over with getting rid of the way that we did it before, so I’m gonna look into some alternatives, we’ll have something lined up either way.  That’s October 6th at 12:00 Pacific, 3:00 Eastern.  Oh, during football time.  Are we doing that?  Okay, well we’re gonna stream the game while we [Laughs] we’ll keep an eye on fantasy scores while we live Q&A.  So that’s when it is, show up. 

Patrons, by the way, and welcoming our new patrons as well, you get access to the question thread, you ask the questions on Patreon, those are the ones that other people can kind of vote on and get answered, everybody’s invited to watch the Q&A but only patrons get to ask the questions on the Patreon thread.  So we’ll see you then, that’s October 6th at 12:00 Pacific / 3:00 PM Easetern.  Okay, and now I believe it’s time for Top Patron Tuesday!

Andrew:         Woo!

[Patron Shout Outs]

T3BE – Answer

Thomas:         Ah, good times!  Okay, it’s time for Thomas Gets the Bar Exam Question Right!  T3BE stands for “Thomas’ Three Question Streak!”  Definitely got this one right, no chance I messed up and got it wrong.  Alright, here we go, T3BE, let’s go!

[Segment Intro]

Andrew:         Alright!  So, should I cut to the punchline? 

Thomas:         Just do your thing, man!  Just do your normal.

Andrew:         I’ll do my thing, alright.  I can do my think.

Thomas:         It’s still T3BE. 

Andrew:         So, dreaded real property question.  Seller and a buyer enter into a contract obliging the seller to convey title to a parcel of land to the buyer in exchange for $100,000 dollars.  Like many contracts for the sale of land, it provides that the buyer’s obligation to purchase the parcel was expressly conditioned upon obtaining a loan at a rate no higher than 10%.  The buyer couldn’t find a loan at a rate no higher than 10%, got a loan at 10.5% and turned over the $100,000 anyway, but in the interim the value of the property went up and so the seller was like “nyeh, that violates the contract, I refuse to perform.”  Buyer sues the seller, is the buyer likely to prevail?  Thomas, you said you don’t wanna live on this planet anymore-

Thomas:         [Laughs]

Andrew:         -if [Laughing] the buyer is not likely to prevail.

Thomas:         I can still live on the planet, I’ll just not practice law.

Andrew:         [Chuckles] Alright! 

Thomas:         I’ll stay out of the law game.

Andrew:         So you immediately eliminated – I love it when you do this on Thomas’ Second Chance Law Firm, you eliminated both of the “no” answers.  Good elimination!

Thomas:         Ah, yes!

Andrew:         The buyer is in fact likely to prevail, and so the only question was is the buyer likely to prevail because he detrimentally relied on the seller’s promise, or is he likely to prevail – that’s answer C – or is he likely to prevail because obtaining a loan at the interest rate no higher than 10% was not a condition on the seller’s duty to perform.  You chose that answer, answer D, and I am pleased to tell you that is a correct answer!

Thomas:         I knew it!

Andrew:         This was a swish from downtown.

Thomas:         Darn right!

Andrew:         Absolutely dead on on your analysis, the intent was to protect the buyer-

Thomas:         To allow the buyer to be like, “well the only loan I could get was 1000% so I’m not doing that.”

Andrew:         Right.  Yeah, and in fact that is an express provision that parties negotiate over when you buy and sell property all the time.  You’re like, look, I’m gonna buy this house, I’ve gotta get a mortgage and I’ve gotta get a real mortgage.

Thomas:         Yeah.

Andrew:         If the only thing I can get is like a payday loan, then sorry!

Thomas:         [Chuckles]

Andrew:         That is called buying with a contingency.

Thomas:         [Laughing] Payday loan to buy a house!

Andrew:         Can you imagine instantly?

Thomas:         27% daily interest.  [Laughs]

Andrew:         Yeah, you would be like the-

Thomas:         Astronomical in, like, five months.

Andrew:         Right, like the chess board where you put one grain of rice on the first square and two on the second-

Thomas:         Yeah, yeah.

Andrew:         -it outweighs the weight of the known universe by square 64.

Thomas:         Yeah.

Andrew:         By the way, do we know if Elizabeth Warren has a plan for payday lenders?

Thomas:         Yeah, I don’t know.  She’s got a plan for everything, I think.

Andrew:         She should, because in any sane society those would be banned and driven out of existence, so looking forward to that.

Thomas:         Let’s take my T3BE convincing victory as a sign, a perfect capstone to this last few episodes of impeachment stuff, it’s all comin’ together.  It’s all good universe signs, right?

Andrew:         Yeah, and in a Taint Team call back, I love it when a plan comes together! [Laughs]  So, congratulations Thomas.

Thomas:         [Laughs] Thank you, thank you!  Why don’t you hop in your time machine, tell us who is this week’s big T3BE winner!

[Segment Intro]

Andrew:         Alright Thomas, this week’s winner is the Petri Dish Podcast.  You can follow them @DishPodcast on Twitter, who knows the key to hacking the game here, writes in “T3BE, we agree with Thomas on the answer being ‘D’.  We live in a SOCIETY!  Just because a dude decides not to exercise an optional pull out of a contract doesn’t mean the other dude can swoop in and cancel stuff,” and they included the animated gif of George Costanza with one of his many outstanding catch phrases, [Impersonation] “You know we’re living in a society!”  Fantastic, and picking the hero of Seinfeld is always a great way to grab our attention. 

Congratulations The Petri Dish Podcast, everyone give them a follow and good job on getting what a lot of people have said was a rather easy question, but hey, you got it right.  Congratulations, enjoy your never-ending fame and fortune.

[Segment Outro]

Thomas:         Alright, thanks so much for listening everybody!  Thanks so much for impeaching Donald Trump everybody! [Laughs] Thanks so much for Donald Trump to being such an idiot that he could have gotten away with it!  This isn’t one of those “I would’ve gotten away with it-

Andrew:         [Laughing] If it wasn’t for you meddling kids!

Thomas:         No, no.  [Groans] He’s so dumb.  He is so full of himself and doesn’t care about the law so much he went through this huge investigation, the Mueller report.  All that stuff, and he could’ve gotten away with it, he could’ve gotten through his first term without facing virtually any consequences for that whole thing, but he’s like “no, no, I need to blackmail the Ukrainian President into giving me some stupid crap that doesn’t exist” and now, because he’s that level of incompetent and entitled and has no regard for norms or laws.  He finally did it!  He might’ve done something that’s just even too far for this country.  Incredible.  So anyway, thanks for listening! [Laughs]

Andrew:         Bravo!  I need to just stop and clap because I’m with you, brother.

Thomas:         Thanks for listening everybody, we’ll see you in Rapid Response Friday.

[Show Outro]

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