Transcript of OA320: The (Idiotic) Hearsay Defense

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 320!  Heh!  320, huh, Andrew?

Andrew:         [Laughs]  Is that a thing?

Thomas:         I was gonna see if I could try to make you fall for it-

Andrew:         [Laughs]  

Thomas:         Of course it’s not.  That’s a joke that you’re a precious cinnamon bun.  How’s it going Andrew Torrez?

Andrew:         Well, on the one hand, it’s going fantastically well.  On the other hand I think this may be our last show ever, so it’s been a great run!  How’re you doing Thomas?

Thomas:         I’m doing great.  See, I see all this stuff that you had on the whiteboard that we need to do and there are just items and items.  This might be world record for OA numbered list items on a whiteboard.

Andrew:         Yeah.

Thomas:         There’s like 20? 

Andrew:         Yeah.

Thomas:         How are you gonna do all this?

Andrew:         There’s a lot, and most of them have subpoints, too!


Thomas:         You can erase all of that because now all we have to talk about is [Singing] Look at this photograph!

Andrew:         [Laughs]  

Nickeldown Takeback

Thomas:         Did you see that the President tweeted “look at this photograph” with a Nickelback meme?! This is real life we’re living in.

Andrew:         Did you see – this broke early this morning, probably 5:00am your time so maybe you missed it.

Thomas:         Yeah.

Andrew:         [Laughing] But Nickeldown issued a DMCA takeback!

Thomas:         Yeah!  They took it down!

Andrew:         Takedown.  Did I say Nickeldown? 

Thomas:         Yeah, it’s okay.

Andrew:         Nickelback issued a DMCA takedown.  You can even leave that in, Brian, I’m happy to call them Nickeldown.

Thomas:         I’m not even sure you got it wrong.  When anybody mentions Nickelback my brain just goes to white noise mode.

Andrew:         [Laughs]  

Thomas:         As a protection mechanism, just a defense.  Yeah, this is the world we live in.  So we’re gonna do a full Nickelback deep dive.

Andrew:         [Laughing] Yeah!  We’re gonna have to!

Thomas:         We’re gonna discuss the early work, the later albums.  I love the early- no, I’m not even gonna try.  It’s all the same.

Blatant Bribery on National Television

Andrew:         And here’s why.  I made this joke on Twitter so the ten, fifteen-thousand of you who follow us on Twitter already heard this one, but literally this morning on national television in a press conference, Donald Trump threw for himself that he didn’t have to throw, he looked at the camera and in the context of, once again asking a hostile foreign power – in this case China – to (quote) “investigate the Bidens” (end of quote). 

He then said this, this is the President of the United States, on national television, at a press conference he threw that he didn’t have to, talking about a hostile foreign power investigating his political rival, he says (quote) “if they don’t do what we want (“they” meaning China) we have tremendous, tremendous power.” (End of quote.)

Thomas:         Yeah.

Andrew:         [Emphatically] That’s bribery! That’s bribery on television!

Thomas:         That’s all part of the plan.  We’re gonna get to it, obviously, but this is – he realized, and he’s not wrong… this is what sucks about this. 

Trump is good at like 2.3 things, unfortunately, and he’s realized that what took all the wind out of the sails of the Mueller report was that people reported on it early, ahead of time, so we already had an indication about a lot of the stuff because of good reporting, then when the report comes out everybody’s like “oh, wait, I already heard about this.  I knew about this.” 

So that, somehow – let’s talk about the doctrine of “if I already knew about this, not a crime,” because that seems to be the law now, or something.  If we already know about it, 100% fine.  It’s only secrety things that are bad.  I genuinely, 100% believe this is the strategy.  He’s gonna try to do it out loud so that it’s like “oh, well, if he’s doin’ it in the open then I guess it’s fine, that’s not a crime.”

Andrew:         You may be right.  And, again, we don’t even need to do this in a segment in the show. 

Thomas:         [Laughs]  

Andrew:         We have read – seriously, we can keep this in the pre-show.  We have read the federal bribery statute on the air.  It’s 18 U.S.C. § 201(c)(1)(B) and it says, “whoever, being a public official, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act, shall be guilty of bribery and serve up to two years in jail.” 

All of those elements are met in that sentence.  Literally, the House Investigatory Committee, the impeachment inquiry, could be like “yup, okay, we’re done here!”  He committed a crime on national television.  And, again, is not an alarmist-

Thomas:         But it wasn’t all secrety so it’s fine.

Andrew:         This is not an alarmist podcast, you guys know – everybody knows that who listens.  It kind of broke my brain this morning. 

Thomas:         Wow.

Andrew:         So there we go.  There was that.

Thomas:         This is how just crazy everything is.  We can’t even properly start our show because we’re so [Laughs]  amped about everything going on!

Andrew:         Yup.

Thomas:         Hi!  It’s Opening Arguments!

Andrew:         Hi!

Thomas:         Let’s see… [Laughs]  

Andrew:         How you doin’? [Laughs]  

Last Call for Live Show Tickets

Thomas:         Live show tickets!  October 12th!  Hey, comin’ up, by the way.  That’s only, what, a week or two away?  My math is way off.

Andrew:         Next – [Laughs] Well, I’m not gonna get a “next.” 

Thomas:         Yeah! [Laughs]  

Andrew:         One week from this coming Saturday, October 12th in Los Angeles, California.  There are a handful of seats left.  All of the really, really good seats are left – or

Thomas:         I was gonna say!

Andrew:         – all the really, really good seats are gone.  

Thomas:         What are you talking about?  There’s one Platinum ticket left.

Andrew:         Yeah, and one or two VIP.

Thomas:         I know one certain Michael Rops is maybe holdin’ out for that one.

Andrew:         [Laughs]  

Thomas:         But, you can try to get to it before he does!

Andrew:         Yup!

Thomas:         And, again, if there’s two people who wanna go we can maybe move some stuff around to make room for one more.

Andrew:         I’m cookin’ a five-course meal, I dunno man!

Thomas:         Yeah, that’s five more courses, approximately, that you’d have to cook.

Andrew:         [Laughs]  

Thomas:         And then looks like we’ve got three VIP left. 

Andrew:         Yeah.

Thomas:         Again, if we ever end up at an odd number, if you and your friend, your significant other, are like “oh shoot there’s only one left,” make sure to just message us and we’ll see if we can move something around.

Andrew:         Yeah, we’ll get you on the list.  Yeah!  I know a guy.  We’ll take care of you.

Thomas:         [Laughs]  Well it’s not – I mean, I was – again!  [Laughs]  Andrew!  I was being more cautious in case there’s literally no more chairs, but okay.  You’re always just like “no, we’re good,” and that’s fine.

Andrew:         Laps!  People can sit on laps, people like that!

Thomas:         Yeah! [Laughs]  So hop on over, the link’s in the show notes, I’m so excited about this show.  We have Carrie and Matthew coming from Oh No Ross and Carrie fame, and Matthew’s obviously the lawyer that we’ve had on the show that worked with Carrie and Ross on that.  It’s gonna be a lot of fun.  I’ve got some games planned, it’s gonna be a good time!

Andrew:         Absolutely!

Thomas:         So come join us!

Andrew:         Yup!

Thomas:         Let’s see, anything else before we… [Laughing] we already started the show!

Extra content for patrons!

Andrew:         Yeah, so this is obviously gonna be a Yodely Mountainey show, we have probably 8 hours of content, so I think we’re gonna do another bonus for patrons this week.

Thomas:         That’s awesome!

Andrew:         We’ll do everything in the main show.  Yeah, I want – we had a lot of people sign up last week and, you know, we love you guys.  Thanks for supporting the show, we’re gonna give back by putting out some free bonus content for you that will come at the end of this show. 

Preview of Episode 321

Next … [Laughs]  On Tuesday, in show number 321-

Thomas:         [Laughs]  

Andrew:         -we will be covering the Brexit decision.  We have a fantastic guest coming on-

Thomas:         Yeah!

Andrew:         -a Scottish lawyer who can break down the U.K. Supreme Court opinion, so we’re gonna have her on, so we’re gonna talk about all things Brexit. 

Supreme Court Reconvenes

One more bit before we get into the main show, the Supreme Court reconvenes, their summer break is over on Monday, October 7th, and the first set of cases that will be heard, oral arguments that Monday is the consolidated Zarda v. Altitude Express, that is whether sexual orientation and gender identity are protected under the Civil Rights Act of 1964.  We’ve covered that case a lot on the air and we will do the post mortem after the oral argument, you’re gonna hear a lot on it. 

I don’t think there’s any way that the Supreme Court will find in favor of including sexual orientation and gender identity within Title XII.  So it’s gonna be bad and you’re gonna read a lot about it.  We’ve covered Zarda and Hively and these cases extensively and we will do a postmortem again, but you can check back in the archives and on OA Wiki if you wanna brush up, if you are the kind of person that watches Supreme Court oral arguments and [Laughing] I know we have listeners who do that who aren’t just me. 

So that’s comin’ up!

Thomas:         There is so much going on that I had to text Brian and say “Brian we’re adding something to the Yodel Mountain intro.”

Andrew:         [Laughs]  

Thomas:         So I’m just teasing that.  Brian, make sure we added that to the intro by the time we get done. 

Andrew:         Yeah.

Thomas:         That’s how crazy things, but also I’m here for it. [Laughs]  It’s been a long Yodel, it’s been a long Yodel but we’re getting to the top of the yodeling, so okay.

Andrew:         What a long, strange yodel it’s been. [Laughs]  

Thomas:         [Laughs]  [Sighs] What do you think?  We ready to start the show?

Andrew:         Yeah, let’s start the show! 

Thomas:         Alright, beginning of the show, here we go!

Andrew Was Wrong About Javelins

Thomas:         So Andrew Was Wrong, yeah, we got this one.  A lot of people wrote in that a javelin is an anti-tank missile.  That’s always fun.  My favorite part of whenever you’re wrong is I get to learn that you’re wrong 787 times, but it’s fine! 

Andrew:         [Laughs]  

Thomas:         There’s no way to – there needs to be some ticketing system, that’s what there should be.  There should be like a – and I’m just teasing, I really don’t mind when people-

Andrew:         Oh, like deli meat?  Right?  Like when you get sliced pepperoni?

Thomas:         Yeah, or there’s a page that’s like where it’s like people take out tickets, like, okay – I was thinking like support ticket, where it’s like “okay, who’s gonna tell Andrew this thing” and then one person does and then we’re covered.  I’m just teasing, it’s okay.  The current system where we get infinite emails saying the same thing is fine!  It’s all just data.  But, yes, so that’s the first one.  I dunno, did you have any more to add to that?

Andrew:         Nope, that was demonstrated live on national television after we recorded so in fairness I got it wrong and in slight fairness to me, I’m not a weapons expert!  [Laughs]  

Thomas:         Yeah, did you say it was an anti-aircraft thing?

Andrew:         I think I said it was a surface to air missile because-

Thomas:         Oh, okay.

Andrew:         -I play a lot of Civilization, or I used to back when I had time to play video games, and you had the little troops that were the surface to air missile guys and, anyway, so…

Thomas:         I was gonna try to tease you, like obviously you should know that a javelin is something you throw at a tank, but then [Laughs]  

Andrew:         [Heartily Laughs]  

Thomas:         [Laughs]  You never throw it at an airplane!

Andrew:         I stand corrected, sir!

Thomas:         Duh!  [Laughs]  

Andrew Was Wrong about Code Word Clearance

Okay, item number 2, I am intrigued to see this.  It looks like you were wrong about something regarding code word clearance?

Andrew:         Yeah, so remember that the TELCON, the edited transcript of the call between Trump and Ukrainian President Zelenskey was immediately placed onto a segregated top secret server and hit with code word clearance, and I – that broke like 12 minutes before we recorded so I did my best to try and figure out what code word clearance meant and I got it slightly wrong.  We have a bunch of listeners that are in the intelligence community, obviously our friend Alice Ashton, also we got a lengthy response from, your guide to legal terms from 13th century Saxony, who apparently knows a lot about this stuff.

Thomas:         They also have, apparently!

Andrew:         Yeah, [Laughing] exactly!  And so I’m gonna paraphrase from what he wrote, this is really a useful clarification and, by the way it means – so I thought the code word clearance was when you segregated out parts of the intelligence and then you had to have the code word to access that part.  Turns out it’s way, way worse than I thought.  So here’s explaining to me.

Thomas:         [Laughs]  

Andrew:         He says, “look, there are two elements in determining whether or not someone should have access to classified information.  There’s the clearance and then there’s the need to know.”  So clearance, that’s what we’re familiar with, that’s the confidential, top secret.

Thomas:         And I take it that’s like a static thing, if you have clearance whatever’s at that level-

Andrew:         That’s exactly right, and you get a review, the FBI does a background check and is like, “okay,” and I have served – I’ve never applied for a clearance, I haven’t had need to, but I have had colleagues, clients, friends, associates, who have done so, so to get a confidential clearance level or secret clearance level you then have to go through this background check where they’re like, “hmm, did you honeymoon in the Soviet Union in the 1960s?”

Thomas:         [Laughs]  I’d go through it and they’d be like “you’re cleared for actually less than public level.”

Andrew:         Right [Laughing]  Yeah, exactly.

Thomas:         We don’t even want you to know what everybody knows! [Laughs]  

Andrew:         So, yeah, 100%.  First you have to pass the check to hit the level necessary, so the server was, of course, top secret.  But that’s not enough.  Just because I have a top secret clearance doesn’t mean I get to read all – huh?

Thomas:         I said “warp speed to slow!”  Top secret not secret enough?!

Andrew:         [Laughs]  Okay, nice!  Sorry I missed the reference I was-

Thomas:         No, it’s okay, I remember you saying that – I thought you said that Spaceballs was always gonna be a good reference to make.

Andrew:         It absolutely is and that one’s on me.

Thomas:         [Laughs]  No, that was Skype, blame Skype. 

Andrew:         Okay.

Thomas:         Yeah, so how many peop- do you have any idea what level of secret is top secret?

Andrew:         So top secret is the highest of the three classifications, so lots of people have it but just because you have a – relatively speaking, compared to the number of people in my basement, right?  [Chuckles]  But just because you have the top secret clearance doesn’t mean you get access to all top secret information, you also have to have a need to know that information. 

Now I’m gonna go back to reading what wordorigins says, he says “for the most sensitive information, access is compartmentalized and that determination of the need to know is made by a central decision maker, so you need pre-approval to access that information” and because that kind of information comes up again and again that information is labeled with a code word.  So, for example (this is a real life example) access to satellite imagery was (and he says “still is?” so maybe WordOrigins was retired from the intelligence community, who knows), given the code word “special intelligence / talent keyhole” or “SI/TK” so if you had top secret SI/TK clearance then you could see it, but if you just had the generic top secret clearance you couldn’t.

Thomas:         Talent keyhole?

Andrew:         Yeah, who knows, that’s why it’s code word, right?

Thomas:         Hold on, is he pranking us?  Is this [Laughs]  

Andrew:         I thought-

Thomas:         He typed up a whole explanation! [Laughs]  

Andrew:         -but then I think he would’ve been like “special holistic with an ‘h’ intelligence” it would’ve gotten the acronym to spell a clownhorn or something.

Thomas:         [Laughs]  Clownhorn!  Clownhorn clearance! [Laughs]  

Andrew:         So then he notes, “a computer system designed to house code word information would have a record of who’s allowed to access what information and when a person logs in it would only show the information they were privy to, so code word information is the most sensitive information where the government wants to maintain tight control over whoever has access to it,” and it is just beyond obvious that placing the transcript of the Ukraine call-

Thomas:         Yeah.

Andrew:         -in a top secret code word server is holy clownhorn we gotta lock this down, we gotta make sure nobody sees this, and the fact that the President immediately declassified that when it came into question shows that the initial classification was part of the conspiracy.

Thomas:         Well, and the fact that there’s nothing in there that would remotely be thought of as top secret discussion.

Andrew:         Yeah, exactly [Laughs]  Well, except for the crime!

Thomas:         [Laughs]  

Andrew:         But now the President’s done that on national television, so, you know.

Thomas:         Yeah, so it’s – declassified all that.

Andrew:         So I really appreciate that clarification, I always appreciate the clarification when the thing that I thought was bad, our listeners are like [Laughing] oh no it’s way worse than that!

Thomas:         Yeah.  This was interesting to hear the Pod Save the World people talk a little bit about this, they kind of give a perspective of, you know, here’s what it was like when we were working with Obama, they actually have like three separate computers they have to work with on their desks, one’s the computer that has no secret anything on it, and then here’s the one that has some other level, and then there’s one that’s like top secret and never the thrain shall mix.  Twain?  What’s the three?

Andrew:         Thrain I like!  I like that!

Thomas:         [Laughs]  I just made it up!  And also they echoed the idea, or reinforced this notion that a call like this has no business being at that level of secret.  There’s just nothing, no reason for that beyond trying to protect from crimes that are now so out in the open I don’t know why his lawyers even [Laughing] bothered!

Andrew:         Yup, yup. 

Andrew Was Slightly Wrong on Impeachment Votes

Thomas:         Alright, well thanks for that.  I think we have more.

Andrew:         [Sighs]  Sadly.

Thomas:         What more were you slightly wrong about?

Andrew:         This is a 100% just my brain was broken after all the work that went into last week and this week and I guess every OA from here on out until the end of time.  I had said that Al Gore cast the tiebreaking vote on Article 2 of the Clinton impeachment because it was recorded as 50/50 fails, and my head sort of supplied the “oh, well yeah, 50/50 Gore is Vice President and casts tiebreaking votes in the Senate.”

Thomas:         Oh, that just means they didn’t get the 66 or whatever.

Andrew:         Yeah, right, of course it’s gotta go to 67.

Thomas:         Yeah.

Andrew:         That was just a complete stupid math error on my fault.  Definitely wrong on that one.

Thomas:         No big deal.  Look, we’re up here so high, this altitude, there’s not as much oxygen on Yodel Mountain-

Andrew:         Yeah [Laughs]

Thomas:         -we’re so high up in the stratosphere here, we won’t fault you for that one.

Andrew:         Yup, but that paves our way to the last one which is a thing that I was absolutely 100% not wrong about, but maybe I needed to clarify a bit better. 

In discussing whether Mitch McConnell could Mitch McConnell everything in connection with impeachment I pointed out the nuclear option, which is the same procedure that McConnell used to cram through Supreme Court Justices, to cram through both Gorsuch and Kavanaugh, which is changing Senate rules without changing Senate rules. 

The way in which you do that is you claim that a rule is – because to change the Senate rules requires a 2/3 vote, requires 67 votes, which you’re not gonna get, so the way in which you get it with 51 votes is you claim the rule is ambiguous and then you offer a (quote) “clarification” for that ambiguous rule and that procedure under Roberts Rules of Order, something with which I have been intimately familiar since my days doing speech/debate student congress when I was 13 years old, under Roberts Rules of Order that procedure is called “Appeal to the Decision of the Chair.”

Thomas:         Yeah.

Andrew:         And that’s Mitch Mc – right?  People wrote in to say several things, to say “look the person who’s actually presiding over the Senate, that rotates” which is true, and that Chief Justice John Roberts will be the Presiding Judge over the impeachment trial, that’s also true, that has nothing to do with the underlying Senate rules.  Those underlying Senate rules will be subject to an up or down 50/50 vote by and orchestrated by Mitch McConnell.  So I’m still right and you guys are still wrong.

Thomas:         Can I say just a word on that? 

Andrew:         Yes.

Mcconnell side bar

Thomas:         Because I was noticing, ‘cuz we covered a while back the initial segment where we asked you – somebody, either me or the listeners or whoever – asked you, “hey could McConnell just not hold an impeachment vote at all?  Just not even deal with it.” 

It’s been months back, and so I was a little foggy on it, but I remember your answer was yes, he could do that, and I’d been seeing recently McConnell made some comments where he said “nope, I have to bring it up, rules are rules!” [Laughs]  “All of a sudden I love the rules, rules are rules, I gotta do it.”  I just have to say, I’m a little confused because all of a sudden – and I’m not just complaining about commenters and all that, but like people in the media – all of a sudden McConnell’s word is the gospel truth!

Andrew:         [Laughs]  

Thomas:         It’s the weirdest thing!  Once he says something that I think people kind of wanted to be true, I guess, that he would be required to bring it up for a vote – everyone’s like “oh, well, he’s on the level so yeah, of course.  No he’s right, he just has to bring it up.”  And I was trying to, you know, posting a little bit on social media, work my way through this because I was confused by the reaction to it and I think you ultimately said it all but it just wasn’t quite in my brain that the Constitution in no way requires that he brings it up for a vote but the Senate rules do, but there was still the workaround that you’re talking about here which is if he really wanted to he could do the “this one weird trick” to not have to follow the rules ever.

Andrew:         Yup.

Thomas:         And that’s 100% – and so when McConnell says “yup, gotta do it,” he’s … sure, he’s right, but he’s also Mitch McConnell.  He’s saying this for a reason.

Andrew:         [Laughs]  

Thomas:         The reason is he would not ever wanna either spend the political capital to do this, to cover for Donald Trump who’s somebody I’m sure he doesn’t really care about, or it’s just smarter politically for him.  He’s the perfect evil, we know he’s always going to do the perfect evil thing, so it’s just weird that so many people in this one instance were like “well, he’s just duty bound in this case.”

Andrew:         No, that is exactly right.  I actually have, in preparing for, it’s item number …

Thomas:         [Laughs]  

Andrew:         Six?  It’s item number 6 in the C Segment which, you know, may get pushed off into our Patreon special, but I have insight into why Mitch McConnell and why Lindsey Graham has been Lindsey Graham, and it’s terrifying and I will share that with you.

Thomas:         Wow.

Andrew:         But I wanna kind of move back because I agree 100% with everything you’ve just said, and I will point out, that is the underlying motivation behind Yodel Mountain.  It is the idea that Mitch McConnell, for all of the fact  that he’s Mitch McConnell and he’s pure evil and we agree with that, is not unconstrained. 

There are lines that Mitch McConnell won’t cross, not because – you know, [Stammers] because if it were, like “oh, we’ll build a volcano lair and eat this puppy” sure, he would do that-

Thomas:         [Laughs]  

Andrew:         -but the question is what can he do and still get re-elected to the Senate?  And look, that’s a lot, right? [Laughs]  

Thomas:         I think it’s cost/benefit thing. 

Andrew:         Yeah.

Thomas:         Here’s what I think went on in his frog or lizard, frog, whatever animal he is, brain, which is, okay, well if this were a Supreme Court justice he would just do it.  He would just go “okay, appeal to the chair, whatever, change the rules, no problem,” he would, 100%. 

But because it’s something that he doesn’t really need to do because the Senate is just going to either – if it gets to the point where the Senate has turned and is going to convict then I’m sure McConnell doesn’t wanna [Laughs]  then he’s fine with that anyway and he can have President Pence or their just going to not vote to convict anyway so he doesn’t need to fall on the grenade himself and stop the thing from going up to a vote, so given that that’s what he already wants to do he’s going to present it in this way, “well I’m duty bound” so that it doesn’t look like he’s – you know he’s so Machiavellian. 

That’s my read on him and I firmly believe that to be true.

Andrew:         No, I think that’s exactly right.

Thomas:         He’s first going to decide what he wants to do and then he’ll find the justification.  It turns out in this case it’s easy for him to just be like “oh yeah, them’s the rules.  They weren’t the rules a minute ago with the Supreme Court justice, but them’s the rules, and you know me, I always follow the rule.”

Andrew:         [Laughs]  Yeah!  No, I think we are saying the exact same thing in two slightly different ways.  I agree 100%, I would add two things.  Number one, just to underscore what you’ve said, remember that Mitch McConnell can say “yeah, we have to hold the hearings, but the Republicans can move to dismiss after opening statements.”  The Democrats did that in 1999. 

Thomas:         Right.

Andrew:         It was voted down in 1999 but maybe it’ll be voted up in 2020, who knows?  So he could literally just have speeches and no testimony and hold a vote.  So there are lots of ways that McConnell can still McConnell while saying “oh no, look, I followed the rules, I was totally nonpartisan here” so I agree 100% with respect to that.

Thomas:         Okay.

Andrew:         And I would add, a bunch of people sent me a Vox explainer on this which I’m gonna link in the show notes.

Thomas:         Yeah, I sent you that! [Laughs]  

Andrew:         Like I said, a bunch of people sent me!

Thomas:         It was good, yeah!

Andrew:         It’s good-

Thomas:         Oh, I’m just a bunch of people now, okay!  Alright.  Sure.

Andrew:         [Laughs]  Listener Thomas S. and others.  But it is kind of delightfully naïve.  It describes the law but without describing the fact that it’s Mitch McConnell applying the law.  So it goes through and it’s like “well, it would take 2/3 of a vote to change the Senate rules,” and that would all be true if we didn’t live in an era in which Mitch McConnell has already changed Senate rules by claiming that they’re ambiguous and guess who gets to decide-

Thomas:         So that’s the trick, there.

Andrew:         -that they’re not ambiguous?  Republicans! 

Thomas:         Yeah, so that’s the trick.  Like the way it should work, naïvely, you would need 2/3 or whatever because it’s like, this is not an ambiguous rule, we all know it’s not an ambiguous rule, but because it’s Mitch McConnell he’s just like “hmm, I dunno what it means.  Anyway. 5?  50, 51?  Okay, we change it.”

Andrew:         Yup, exactly right.

Thomas:         I’m glad we covered that.  You’ve noticed this too, right?  Even in the Vox article the way they talk about it – people still have a hard time dealing with McConnell, of what he actually is it feels like to me and they’re leaping for the chance for him to just be saying the truth, I guess?  I dunno, it’s weird.

Andrew:         I think that’s 100% correct, that’s journalistic instincts.  It’s sort of hard to say “well, okay, Darth Vader today reported that”

Thomas:         [Laughs]  

Andrew:         Right? 

Thomas:         Darth Vader’s like, “well the laws of Alderan say that…”  Well, he’s right! [Laughs]  

Andrew:         [Laughs]  Appeal to the decision of the Death Star!

Thomas:         [Laughs]  Alright, I think we can’t end that on an any better note, so time to move on to our next segment after a quick break.

[Commercial – joybird/oa for 25% off your first order with code OA]

Hearsay Explainer

[Segment Intro]

Thomas:         Okay Andrew!  Oh, this is gonna be fun to talk about.  Hearsay!  [Laughs]  Hearsay explainer, also this might help for the bar in the future for me, but there have been a lot of claims thrown around about hearsay.  The fact that – okay, look, it is so foolish to even try to filter through the levels of nonsense of explanations that this is.  I dunno if you’re going to try to or if you want I could take a stab at it, but if you were gonna do it anyway I don’t wanna trample on what you have to say.

Andrew:         Oh, go ahead!

Idiotic hearsay arguments being made

Thomas:         Okay let me see if I have the levels of excuses right.  So here’s what I think happened.  We had a whistleblower and he or she or they, whoever, blew their whistle.  Quoth the whistleblower, “[Brrrr!]” So then the defense was, “wait, they just have secondhand information.  Whoever that is, they weren’t in the room, they weren’t on the call” and as far as I can gather that’s actually true, this whistleblower was not on the call, they heard other people talking about the call. 

So then, Lindsey Graham and others who are just have completely sold their souls are saying “it’s hearsay, then!  You can’t convict someone based on hearsay!” and what I love about this is simultaneous to that they also released the transcript (quote, unquote) the summary of the call!  Which has everything we need to know!  So what even is this argument that it’s hearsay!  You released the thing!  Okay.  Forget the whistleblower, let’s just go based on what you released.  Ope!  Done!  That’s not hearsay.  Am I missing something?

Andrew:         Well you were all the way right.  So you’ve correctly described the argument being made by idiots. 

Thomas:         [Laughs]  

Andrew:         And you are correct all the way up until the fact that the TELCON is also hearsay.

Thomas:         Oh, okay.  Yeah.

Andrew:         Which helps underscore how stupid this argument is.  This is literally the equivalent of the “Phhh, that’s just circumstantial evidence!” that we debunk in our Law’d Awful Movies all the time.

Thomas:         Yeah, yeah.

Andrew:         Circumstantial evidence is very often the best kind of evidence.

Thomas:         So wait, wait, wait!  Let me get this straight!  Under this theory, then, the only impeachment hearings that can happen have to be if you have an impeachment panel present during crimes committed or something?  How would you even?

Andrew:         Yeah, no, right.  You couldn’t impeach a President for murder, you could only impeach a President for attempted murder or assault, and he would have to assault a Congressman.

Thomas:         [Laughs]  Yeah, someone directly involved!  Otherwise it’s hearsay!

Andrew:         So let’s break this all down.  This will also be really, really helpful because, as you will learn, this is, outside of a particular question in real property, something I have alluded to before, the Rule Against Perpetuities which is incomprehensible, insane, and not part of a lawyer’s daily practice – studying-

Thomas:         I also wanna just tease one more thing that I meant to add to my explanation.  I saw Lindsey Graham claim “you can’t even be convicted of a parking ticket via hearsay!”

Andrew:         [Laughs]  

Thomas:         And then I saw someone else tweet “actually, you can.”  So I posed that question to Andrew and I think we’re going to get the answer as part of this segment.

Andrew:         You will. 

Thomas:         Alright, just a little teaser there!  Go ahead.

Andrew:         But other than the Rule Against Perpetuities, studying the evidentiary exceptions to the hearsay rule is one of the – if you ever are at a cocktail party and somebody says they’re a first year lawyer, their first year out from law school, or their a law student be like “pfft, oh the hearsay exceptions, am I right, bro?” 

Thomas:         Yeah, or if they’ve ever gotten a bunch of T3BE questions wrong because of that, yeah.

Andrew:         [Laughs]  We will get to it. 

Yes, the Whistleblower Complaint is hearsay

But first, let’s start with the only factual thing that Lindsey Graham has correct, which is the whistleblower Complaint is in fact hearsay.  It’s right there on page one, this is not hidden, this is not something about which he, she, they, should be embarrassed, were embarrassed.  They say, “I was not a direct witness to most of the events described.”

Thomas:         [Laughs]  Yeah.

Andrew:         Now, what is hearsay?  Let’s start with the legal definition.  Everything that is – and again, I’m doing this not to do the [Sarcastically] Webster’s dictionary defines a contract as that which is unbreakable. [Laughs]

Thomas:         [Impersonation]  Unbreakable!

Andrew:         God you do such a better Lionel Hutz than I do!

Thomas:         Thank you!  Yeah, this is one of those problems where the common-

Andrew:         Yup.

Thomas:         -the common everyday definition of the word “hearsay” is so much different, I think, than the legal definition that everybody’s like “oh, hearsay just means a rumor, of course you can’t convict someone, that just means like ahh I heard on the grapevine the President was a criminal” it’s like naw.

Legal vs. colloquial definitions of hearsay

Andrew:         Yeah.  It is a direct analogue to the circumstantial evidence.  In the law, hearsay means any out of Court statement that is offered for its truth value.  That’s what it means.  It doesn’t even have to be by someone else! 

Thomas:         Aah.

Andrew:         So, perfect example, I write an email and then you call me to the stand and say, “Mr. Torrez, in your email what did you say?”  That’s hearsay!  Me testifying about my own email is hearsay.

Thomas:         [Laughs]  This is very good to get this correctly.

Andrew:         Yeah, and you’d be sitting there thinking “well that seems like it would be pretty reliable to ask Andrew what he wrote in his own email” and you’re damn right it would be!

Thomas:         [Laughs]  

Andrew:         So hearsay does not mean Suzie’s cousin’s third nephew.  No!  Hearsay means any out of court statement that is offered for its truth value.  And let me speak for a second-

Thomas:         Well you said “out of court,” ‘cuz you were just saying you were testifying to what’s in your email.

Andrew:         Right, yeah.  Everything else that you testify to in court is testimony.

Thomas:         Uh-huh.

Andrew:         Is either eyewitness testimony or expert testimony.  So when I’m on the stand and you say, “Mr. Torrez, how tall are you?” and I say “I’m 5 foot 8,” that’s direct testimony.

Thomas:         Ah, finally!  Some non-hearsay in this trial!

Andrew:         Right?  [Laughs]  

Thomas:         So let’s convict you based on your height.

Andrew:         Yeah, so hearsay just describes everything other than my actual testimony on the stand. 

And, I should add that little caveat.  When I say it’s an out of court statement that is offered for its truth value, you might be like, well why would you ever put a statement in that’s not offered for its truth value?  And the answer is we as lawyers do that all the time.  So, for example, if you were to say “Andrew, have you ever communicated with Charlize Theron?”  I would be like “well, no.” 

Then you would say, “Your Honor, I’d like to introduce into evidence this email from Andrew Torrez to Charlize Theron,” and then I’d be like “oh, man, that’s right, I did spend all of 2017 sending emails to Charlize Theron.”  [Laughing] This may or may not have happened.  But the important point is there it doesn’t matter what those emails say, believe me it does not matter what those emails say. 

You’re not offering the emails to prove the things that the emails are saying, you’re offering the emails as proof that I communicated with Charlize Theron – that I tried to, anyway.  That I sent her an email.  So it doesn’t matter the content. 

Lawyers actually use this all the time.  I tell ya, the biggest way in which this often comes up is when you have settlement communications.  Settlement discussions between lawyers, the contents of those are confidential, but I can tell the Court, “oh, yeah, I sent them 12 different settlement demands and they never responded to any of them,” and I frequently have said things like that.  That’s not hearsay because I’m not offering the previous demands to prove the contents of what I said, I’m offering them as proof of an underlying act.  Makes sense so far?

Thomas:         Yeah.

Hearsay is common in legal cases

Andrew:         Cool.  So put all of that together.  Here’s the big takeaway.  Hearsay is a Rule of Evidence.  It is a rule about how we present certain kinds of information in a trial.  It is not a rule about how you prepare, organize, file a complaint – either a civil complaint or begin a criminal complaint.

Thomas:         Right.

Andrew:         And every – I’m gonna give you the world’s easiest example, here.  You call the police and you scream into the phone, “Help!  Get out here!  I just heard a gunshot next door!”

Thomas:         And they say “sorry, that sounds like hearsay, we can’t come out.”

Andrew:         Yeah, right!! Did you see-

Thomas:         Are you the gun?  [Laughs]  

Andrew:         No!  The police show up and they knock on your door and you’re like “yeah, yeah, next door I heard the woman scream ‘help help I’ve been shot’” and then they go to the door and you know what they can do?  They can bust down the door and go inside and try and rescue the woman!

Thomas:         Yeah.

Andrew:         Those are exigent circumstances, that’s why you don’t need a search warrant.  Or, at minimum, they could go back to a judge and your hearsay testimony would be sufficient to get a search warrant to invade their house.  This happens literally every day in criminal investigations. 

The Federal Rules of Criminal Procedure explicitly state that a grand jury can hand down an indictment based on hearsay because duh, and it has been well-settled since at least 1955 – that’s as far back as I could go – that not only can a grand jury hand down an indictment based on hearsay, they can hand down an indictment on nothing but the hearsay testimony of expert witnesses.  That is, an expert witness is not testifying as to the specific facts, they’re only testifying as to hypotheticals. 

So again, think about that really straightforwardly.  Suppose you have a crime scene and it’s been cleaned up and you bring in the CSI guys and you put them on the stand and they’re like “okay, what did you see?” “I saw a hole in the window that was approximately 7 millimeters in diameter” “And what is that consistent with?” “Well that is consistent with a bullet that has been travelling in X direction.” 

So they just offer all of this hearsay expert testimony, not based on any actual facts that they observer – well based on facts that they observed, but not connected to any underlying crime, and they say “yeah, based on my experience as a ballistics expert somebody fired a gun in this house.”  Well, who owns the house?  Thomas Smith.  Okay.  And you can go get an indictment of Thomas Smith.  The grand jury can be like, “yeah, that’s enough for us to say let’s arrest Thomas Smith and charge him with”-

Thomas:         Gun firing?

Andrew:         Well, assume that there’s also-

Thomas:         Assume there’s also a body.

Andrew:         Someone who’s gone missing.  That’s been crystal clear for half a century, more than half a century.

Thomas:         Yeah.

Andrew:         And that’s because hearsay is not fundamentally about reliability.  Again, I sort of gave that analogy.  Now, that means that the entire underlying premise of “you can’t base a complaint on hearsay” is one of the stupidest things you could possibly say.  Because a complaint, be it a civil complaint or a grand jury indictment, is the start of the process!  And from there you investigate. 

When a grand jury hands down an indictment that means, Thomas Smith, you get arrested.  It doesn’t mean Thomas Smith you get convicted, it means we say “okay, we think that there is a sufficient reason to believe that we should hand down an arrest warrant and that Thomas Smith could be charged with a particular set of crimes” and then we compile the evidence and have the trial. 

Thomas:         Well, and to add one more layer of inception-level stupidity here, we’re not even talking about a criminal proc- isn’t this impeachment?

Andrew:         Well it’s- I am granting the premise that high crimes and misdemeanors entitles you to this being akin to a criminal trial.  This is really going to be an important question and I want to file it away for later because when the impeachment hearing is underway all of a sudden you are gonna hear Republicans, the same Republicans who have had no problem putting away tens of millions of African Americans for possession of small amounts of marijuana for the past 30 years, all of a sudden talking about the importance of proof beyond a reasonable doubt.

Thomas:         Hmm.

Andrew:         It is clear to me that the founders did not intend for the burden of proof of impeachment, because impeachment just means removal from office, to be at the same level of proof-

Thomas:         Yeah.

Andrew:         -of locking somebody up and depriving them of their liberty, right?

Thomas:         Right.

Andrew:         But all of a sudden, believe me, put a pin in this because six months from now we’re gonna have Lindsey Graham tearfully addressing the cameras about how the essence, the bedrock of the American judicial system is that you are innocent until proven guilty beyond a reasonable doubt.  Not true in impeachment, shouldn’t be true in impeachment, but we’re gonna hear it. 

Whistelblower Complaint is the beginning of the investigation

So let’s kind of go back and wrap all of this up.  The argument is the whistleblower couldn’t file a complaint based on hearsay, that’s total nonsense.  But let’s assume for a second, because the Complaint is only the beginning of the investigation, and lo and behold exactly what happened is exactly what we alluded to, which was the ICIG took the whistleblowers Complaint and he didn’t say “okay, well, it’s hearsay, that’s fine, gonna run this up the flagpole.” 

No, he conducted his own investigation to determine whether this was credible, which, by the way, is what the statute requires him to do, and in the course of that investigation he contacted several of the sources, he accessed the transcript, he corroborated the whistleblower’s Complaint with actual admissible evidence, which is how the system is supposed to work.  And, by the way, as you alluded to, we now have sufficient evidence to corroborate the whistleblower’s initial Complaint. 

So everything related to the filing of the Complaint is just nonsense, and it’s worse than that, because grant the hypothetical – it’s not true, I wanna be exceedingly clear on this – but assume all we had – assume we had no transcript, if we had no other witnesses, which by the way we do have, we don’t know who those people are but we do know that the people alluded to in the whistleblower Complaint are people that are known in some way to the ICIG and those people eventually will testify before the House Impeachment Inquiry.  But suppose we didn’t have any of that.  Suppose all we had was the whistleblower’s Complaint and the transcript.  That would be more than sufficient to form the basis of a criminal conviction in law. 

Lots of Hearsay is admissible at trial

The reason for that is [Laughing] the second part of all of this, which is hearsay doesn’t mean what the Republicans are pretending it means, and lots, and lots, and lots of hearsay is perfectly admissible at trial.  This goes back to the way we began this segment, which is one of the biggest things that budding young lawyers study when they are practicing for the bar exam are the myriad exceptions to the hearsay rule. 

So hearsay is a Rule of Evidence, it is the Federal Rules of Evidence 801803, confusingly I can’t begin to explain why this is the case, it’s Rule 802 that says “presumptively hearsay is not admissible at trial,” and then the rules around that kind of bracket the different exceptions.  So Rule 801 is not about exceptions, it’s about the definition of hearsay itself, and it says “some things that you might otherwise think of as hearsay are defined as not hearsay for purposes of the rules.” 

So, in other words, these aren’t exceptions and this is where the bar tries to trip you up and you might want to remember this for future T3BE’s.  It will say “yes, because the statement is not hearsay” or “yes, because the statement is”-

Thomas:         Hearsay within an exception?

Andrew:         Admissible under an exception, yeah. 

Thomas:         Ah.

Andrew:         And you have to know the difference.

Thomas:         Well that’s impossible, I will just get that wrong.

Andrew:         Well, it’s not that hard if you think about it.

Thomas:         [Laughs]  

Andrew:         801 says, here’s the way you think about it. 

Remember, hearsay is anything that isn’t the testimony of the witness on the stand that’s being offered for its truth value.  Then 801 says “oh, but also we wanna let in some out of court statements and we don’t want these to even be thought of as hearsay at all.” 

They basically fall into two categories.  That is, prior statements made by the witness who’s on the stand – and again, there are a bunch of different sub-criteria, but the easiest way to think about it is I’m on the stand and I say “yup, I have never communicated with Charlize Theron,” and you say, “didn’t you tell me in your deposition that you did communicate with Charlize Theron?”  That’s a hearsay statement, arguable – well let me not say arguably – that would otherwise fit within the definition of hearsay, it’s excluded from the definition under Rule 801. 

We say those kinds of prior statements of the witness being offered to impeach the witness fall under the 801, they’re just not hearsay at all, they get to come in.  And also, this is the major application, statements that are made by the opposing party in a variety of capacities.  So official statements – so Exxon, I have the CEO of Exxon Mobile on the stand and I say “isn’t it true that you’re an evil money-grubbing scumbag?” and he says “no come on.”  And I say, “well, in fact [Laughing]” and then I hit play of a Republican fundraiser where he’s sitting at the table and says “well you know, as an evil money-grubbing scumbag” [Laughing] right?

Thomas:         [Laughs]  

Andrew:         And, guess what, that statement is not hearsay under Rule 801 because it is a prior admission by an opponent.  That could possibly apply to some of the underlying facts in the whistleblower’s Complaint.

Thomas:         Hmm.

Andrew:         We don’t know, but if he heard some of the co-conspirators – we know that the whistleblower was not on the call, but knows people who were on the call, so if he heard some of the co-conspirators talk about the call that then becomes not hearsay even though it would otherwise technically fit the definition. 

So that’s the 801 stuff, then we get to 803, which are statements that are hearsay but are admissible under the various exceptions.  I’ve told you that this is a nightmare for law students to study, so you wanna take a wild swing at how many specifically enumerated hearsay exceptions there are in Rule 803?

Thomas:         Ooof.  It feels like a lot ‘cuz, again, I get this wrong on the bar all the time.  It’s impossible, this is so hard.  But I’m gonna guess – gosh, how many could there be?  72. 

Andrew:         [Laughs]  I appreciate that!  So you’re gonna feel good, now.  There are only 23.

Thomas:         Oh, okay.

Andrew:         Now-

Thomas:         It feels like a lot more.  [Laughs]  

Andrew:         Some of them have multiple subparts!

Thomas:         Aaah, if you count all the subparts!

Andrew:         It’s a lot and, yeah, people memorize this sort of complicated list because the bar will test – it’s things like religious records that never happen, but certain hearsay exceptions practicing trial lawyers like me know because they come into play all the time. 

I’m not gonna go through all 23 here, that would be ridiculous and take forever, but for example, subsection 6 are records of a regularly conducted activity.  Subsection 7 is the absence of those records.  Subsection 8 are public records, subsection 9 is their absence. 

So a transcript of outgoing Presidential phone calls to diplomats is 100% a record of a regularly conducted activity.  This is how, when I am in a civil lawsuit and I want to introduce emails sent by the company’s CEO, they’re gonna fall under this regularly conducted business records exception and there is no doubt in my mind that the transcript, if we ever got to an official trial, would be admissible under this exception to the hearsay rules. 

That TELCON, 100% Rule 803(6), so all of this is to say now hopefully all of our listeners know a little bit more about hearsay because, look, we could have done this as a three-minute segment.

Thomas:         Yeah.

Andrew:         This is nonsense, grand juries can indict on hearsay, but I want you to understand because I believe everybody making this argument, Ted Cruz was making this argument, and Ted Cruz is a Harvard lawyer.  The people making this argument know that they are lying to you and they know that they are trying to take advantage of the disconnect between the public perception of the word hearsay and the legal definition of the word hearsay.  That’s why I definitely wanted to go through that.

Thomas:         Alright, well let’s take a quick break and then we’ll start yodeling, I think.

Whistleblower Form was not changed

Andrew:         And you alluded to this at the start of the segment.  [Laughs]  Shocker, we’re running late!  I have shared a very simple screenshot, I will also link it in the show notes, that conclusively proves that the lie – and again, this is a deliberate lie, it is being spread by Molly Z. Hemingway and The Federalist Magazine garbage dump, whatever the hell it is, that says that the whistleblower form was changed a week before this Complaint came out, and it used to prohibit Complaints based on hearsay testimony, and now it permits it. 

That is 100% a lie, it is an easily disprovable lie because I’m uploading the May of 2018 version of the form which clearly says “This Complaint is based on (box) Information I have personal knowledge of; (box) Information I learned from Other; (box) Both.” 

Thomas:         Yeah.

Andrew:         So it’s 100% nonsense, I’m gonna walk you through the entire pernicious aspect of that story in the bonus.

[Commercial –]

Yodel Mountain

[Segment Intro]

Thomas:         Alright, I think it’s time for a little bit of yodeling, as much as we can cram into the limited yodel time we have, but there’s a lot! [Sighs] [Laughs]  I see item one here is “State of the Yodel!”

Andrew:         [Laughs]  Ladies and Gentlemen, the State of our Yodel is strong.

Thomas:         Yes! [Laughs]  Ahh, the state of our yodel is strong.

Andrew:         Yeah, I’m gonna link in the show notes, an article popped up on my feed. 

Polling is trending in the right direction

Fox News Judge Andrew Napolitano, dude who hosts a right-wing talk show, albeit a not particularly popular one, on Fox News wrote a lengthy article that says “Donald Trump has committed impeachable crimes in trying to bribe the President of Ukraine to dig up dirt on his political opponents in exchange for releasing military aide that was voted by the United States Congress.”  That’s pretty significant. 

The polling is obviously trending in the right direction, which, oh, by the way is a “Thomas Was Right,” is 100% what you said, which is once Democrats start leading on a thing then that’s going to change public opinion.

Thomas:         Yeah, in fairness I mean it’s really hard to say is it the Democrats actually leading on it or is it just that this latest controversy is more easily digestible and understandable and it seems like there’s a smocking gun in this case?  It’s hard to say, but I do have to think that it’s at least both.  Of course once Democrats rally around this then a bunch of undecided Democrats, or the Democrats who are like “I’m not sure” are gonna be like “alright, sure.”  Of course. 

Trump’s conference with the President of Finland

I have to jump in because I did put a pin in the new Yodel Mountain intro, or the new addition to the Yodel Mountain intro.  Did you catch this?  ‘Cuz it was the kind of thing – I dunno if I’ll say it.  A lot of people say, like, “oh, you could never write this,” and usually I disagree ‘cuz you can write all kinds of stuff.  But this was one of those things, if someone wrote this it would be the most brilliant thing.  Did you catch Trump’s press conference with the President of Finland?  [Laughs]  

Andrew:         Yeah!  [Laughs]  Would you like to ask the President of Finland?

Thomas:         [Laughing] Where he goes – it’s a shame we didn’t have Nixon do this same thing, you know!  [Laughs]  Where he’s going on a tirade of just his normal unhinged rant about how “you’re all corrupt, corrupt media, corrupt whatever!  Now ask the President of Finland [Laughs] a question!” [Laughs]  

Andrew:         [Laughs]  

Thomas:         It’s just too perfect.  The whole, all of Yodel Mountain, all of Trump’s Presidency is that.  You and I both know he doesn’t give a clownhorn about the President of Finland! [Laughs]  We can only assume after that tirade that the question was, like, “so, uh, how’s Finland?  Broadly speaking, I guess…”

Andrew:         [Laughs]  

Thomas:         Nobody – you’ve – Ugh, it’s so good!  So I wanted to add that because I think it’s a perfect, just a tiny little encapsulation of the scandal and him unravelling.  “Ask the President of Finland a question!”

[Music Starts in the Background]

Andrew:         Continuing our Monty Python theme there is a fabulous Finland song in which I think it’s Eric Idle singing and the chorus is “Finland, Finland, Finland has it all.” This is amazing. 

Committees Not in recess

So, look, here’s where we stand with respect to the Congressional impeachment inquiry.  Number one, the Democratic decision to nevertheless go ahead with the several week recess in the House of Representatives, while keeping the House Intelligence, Oversight, and the to be formed House Impeachment Committee present has turned out to be very smart tactically.

Thomas:         So I thought they were suspending – so they’re allowing lots of the House to go on break-

Andrew:         Right.

Thomas:         -but they’re just leaving these certain committees in place?

Andrew:         Exactly right, exactly right.

Thomas:         Oh, I didn’t even know that was an option.  Okay.

Andrew:         Yeah, and as it turns out the old aphorism of “when you’re opponent is dousing himself in gasoline offer them a match and then stand back.” 

Thomas:         [Laughs]  Yeah!

Andrew:         Look, that’s what they’ve done!  And it’s working out. 

The impeachment inquiry formally voted, so we discuss the importance of that in last Friday’s episode.  Adam Schiff has been very, very busy.  The House Permanent Select Committee on Intelligence served Rudy Giuliani with a subpoena yesterday, and that request, I’m gonna link the document in the show notes.  That requests everything and it really reveals an interesting wrinkle that is going underreported in the news media, but I want to emphasize here.  There are two separate instances, kind of general buckets, of trying to pressure Ukraine. 

Pressure on Ukraine re: hunter biden

One bucket is pressuring Ukraine to dig up dirt on Hunter Biden which, by the way, is just an unbelievably stupid thing, and the crowdstrike and all of that, we have talked about how preposterous that is, I want to continue to emphasize that it is based on the idea that the real election interference that occurred in 2016 was not Russian interference to elect  Donald Trump but was, in fact, Ukrainian interference to elect Hillary Clinton. 

That is stupid for at least two reasons: One, because we have the Republican Senate Intelligence Committee that confirms, as we have quoted on this show, that Russia spent billions of dollars over the past decade trying to destabilize democracy in the United States and elsewhere and specifically intervened in 2016 to benefit Donald Trump and hurt Hillary Clinton.  We know that for a fact from the Intelligence Committees. 

And, number two, that Hillary Clinton massively underperformed in the 2016 election, so if that’s how Hillary Clinton did with Ukrainian support, every political candidate from here on forward would be like “I would like Ukraine to intervene on behalf of my opponent.”  Hillary Clinton lost an unlosable election, so the idea that you would want to see, “oh, but she would’ve done even way worse than that without crowdstrike,” I don’t understand how people can simultaneously believe these things, but, you know, there it is.  The Hunter Biden portion is… [Sighs] It’s another – we need to be, again, we need to be upfront about this.  Hunter Biden is a-

Thomas:         Is not Joe Biden.

Andrew:         Yeah.  Well, yes, but he’s also the classic talentless child of a famous person trading on his name.

Thomas:         Yeah.

Andrew:         So he was being paid, this is one of the only actual facts under here.  He was being paid by the Ukrainian company Bursima Holdings, Limited, $50,000 a month to serve on their board.  That’s a lot of money to somebody with zero talent and skills to add their last name to the board.

Thomas:         That’s America, baby!

Andrew:         Yeah.

Thomas:         That’s the country we live in.

Andrew:         Yup.

Thomas:         You know what?  You’re right.  The Trumps would never do anything like that!

Andrew:         [Laughs]  But, look, we should point that out.  The only flaw in the whole “this is of utmost national importance for us to get to the bottom of,” which, by the way, not remotely. 

Thomas:         Yeah.

Andrew:         But look, you know, we’ve talked about – this is not one one-millionth of what Paul Manafort and Tad Devine did in Ukraine, but fine!  I’m all for holding people accountable.  The only problem with this theory is that the prosecutor that Joe Biden intervened to get dismissed on larger corruption issues was the prosecutor who was protecting Hunter Biden.  It absolutely is one of these, the only way to make this conspiracy theory make sense in your demented right-wing brain-

Thomas:         I think you overstated it.  He wasn’t protecting Hunter Biden, there wasn’t a case there.

Andrew:         Well, but-

Thomas:         The prosecutor wasn’t prosecuting anybody.

Andrew:         Right.  And that worked to the advantage – fair.  But, in other words, it was not a case where the prosecutor had indicted Hunter Biden or was investigating into Bursima, it was, as you point out, the exact opposite.  The prosecutor was, by all accounts, corrupt, not investigating anything, and so dismissing him can only be bad for Hunter Biden. 

It may not necessarily have – it may be neutral, but in no way could be good.  When you have somebody who’s corrupt and not investigating you in office getting rid of them does not make your situation better!  You want, if you’re Hunter Biden and you have committed crimes (and I’m not saying that he has committed crimes), you would want the corrupt guy who’s not doing anything to stay in office.  Biden’s intervention was to get him out of office. 

So none of this makes any sense.  All of it is sort of being thrown up as a smoke screen and really kind of half-heartedly.  So here’s where we are. 

impeachment investigation testimony and subpoenas

Right now, the various committees working in coordination have sent subpoenas to Mike Pompeo, they have sent a subpoena to Rudy Giuliani and today they heard closed-door testimony from Kurt Volker, that was the special envoy to Ukraine who was appointed by Rex Tillerson who resigned when the whistleblower Complaint came out.  We don’t know anything about that closed-door testimony yet.  Tomorrow they will hear closed-door testimony from Michael Atkinson, that is the ICIG, the Inspector General. 

Next week there will be a deposition or interview with Marie Yovanovitch, that is the former ambassador to Ukraine who was dismissed in May of 2018, that is after Zelensky was elected and after Trump decided that he was going to lean on Zelensky.  You may recall that this person was referred to obliquely in the phone call in which [Teeth clenched] to the President of Ukraine, the just elected President of Ukraine, Donald Trump describes a career diplomat as (quote) [Impersonation] “the former ambassador, the woman, she was bad news and the people she was dealing with in the Ukraine” (and, by the way, that’s Trump saying “the” Ukraine, not me) “were bad news, and so I just wanna let you know that.” 

Obviously that’s an appalling and stupid thing to say, it’s also slanderous of a career right-leaning civil servant.  Yovanovitch joined the foreign service at 28 in 1986, that’s Ronald Reagan’s foreign service. 

Thomas:         Yeah.

Andrew:         She was elevated under Bill Clinton, she was elevated to Ambassador to the Kyrgys Republic, what used to be Kyrgystan, by George W. Bush.  [Laughing] She was assigned to Ukraine in 2016 and then, you know, recalled right after Zelensky won in May of 2019.  You can draw whatever inferences you want from that.  Those are the sternly worded letters that have gone out and, look, now is the time to remind folks of what we reminded folks at the beginning of the Mueller probe, which is that these things, serving subpoenas, you have to bake in two-weeks of time to respond. 

Folks who think the President is gonna be impeached before Halloween, that’s not gonna happen.  We’re moving more quickly now, but this is still a wheels of justice churn slowly.  There’s a tremendous amount of information out there, and I guess I will end on the second – all of that kind of fell under category one. 

Ukraine and the Mueller Investigation

The really interesting, to me, story about the Giuliani subpoena is that it also involves communications, the second area of corruption in Ukraine is pressure on Ukraine to retaliate against witnesses who cooperated with the Mueller investigation-

Thomas:         Wow.

Andrew:         -and turned over information regarding Paul Manafort.  We have records that Rudy Giuliani met with Paul Manafort’s lawyers while Paul Manafort was in prison. 

That, I think, is a potential smoking gun yet to come.  That is clearly potentially evidence of the cover-up of the retaliation of Giuliani as Trump’s new fixer going to Manafort and communicating to his lawyers, “hey, you know, Pauly stays strong here, he’s probably looking at a pardon, but if he hangs Trump out to dry who knows what could happen?”  I don’t know for a fact that that happened, I don’t know in any way that that happened, but it certainly is something that the House Select Committee on Intelligence is curious as to whether that did happen. 

So lots of stuff.  Boy, more stuff I wish I could tell you about that I guess we’ll cover in the bonus episode, but I wanna make sure everybody gets kind of everything covered from the story and I think I’ve hit the high points.  Anything I’m missing?

Thomas:         There’s just so much.  [Sighs] It’s all a yodel mess.

Andrew:         Oh gosh!

Thomas:         But we’ll unravel it more in the bonus section.

Andrew:         I will link in the show notes, because I want everybody to have access to this, we have ironclad evidence from a Mueller indictment in 2018 that when you see Republicans repeating the “there’ll be civil war if Trump is impeached,” that is 100% a Kremlin-manufactured talking point. 

People were indicted on the basis of that a year ago, so when you see Republicans repeating that, let them know they are either deliberately or as an unwitting stooge parroting a line manufactured by a hostile foreign power to try and subvert our democracy.

Thomas:         I don’t know- [Laughs]  

Andrew:         I dunno if that’s sufficient to shame Lindsey Graham, but it ought to, it really should.

Thomas:         Ugh what a mess.

Andrew:         And Thomas, I know we’re super way over time!

Thomas:         We’re running long, that’s okay.

Andrew:         [Laughs]  But I absolutely wanna answer a question we got multiple times from multiple folks related to the consequences of impeachment and, look, I wanna bracket all of that.  I still think the most likely outcome is that President Trump is not convicted in the Senate.

Thomas:         Right, yeah.

Andrew:         I think the long term consequences of that will be disastrous for the Republican party, they may realize that and he may be convicted in the Senate, so if that’s the case we’ve had, I think, a really, really interesting set of questions as to “could Trump just run again” and the answer isn’t quite as straightforward as you might think that it might be. 

Presidential pardons during impeachment

So I wanted to hit on that, I also wanted to clarify because we got a couple questions on this, the President can still pardon people while he is being impeached.  He could potentially pardon all of the witnesses against him.  That would be a double-edged sword-

Thomas:         Against him?  [Laughs]  

Andrew:         Yeah [Laughs]. 

Thomas:         The witnesses on his side?  What do you mean?

Andrew:         Right, he could pardon anybody. 

Thomas:         Yeah.

Andrew:         So he could dangle pardons for people who would otherwise testify against him.

Thomas:         Oh I see, yeah, gotcha.

Andrew:         He could grant pardons to people who will testify that he didn’t say the thing he said on national television, who knows?

Thomas:         [Laughs]  

Andrew:         That Presidential power remains in effect even while being impeached because being impeached is the trial.

Thomas:         Mm-hmm.  When does that kick in?  Would it be if the Senate, the minute they vote 66-whatever hypothetically to convict?  Or is there some further process?

Andrew:         Yes.  The moment that the Senate votes to convict, 67 or more votes, then he is no longer President and he no longer has the power to pardon.

Thomas:         Hmm.  Wow.

Andrew:         But until that happens he retains the power to pardon.  But, and I think this is where people maybe got confused, he does not have – and the President as we have said on this show multiple times – has the power to pardon himself-

Thomas:         Right.

Andrew:         Even though that’s probably a little bit of an unsettled question, I think the law and history and precedent is very, very clear that he has the power to pardon himself, but he does not have the power to pardon his own impeachment or anybody else’s impeachment.

Thomas:         Huh.

Andrew:         He could not resign mid-impeachment and have Pence pardon the impeachment part.  That is a limitation that the President’s pardon power does not extend to impeachments.

Thomas:         Well what does it even mean to pardon an impeachment?  Or do you mean any crime within the impeachment hearings?

Andrew:         No, no.  He could pardon himself for crimes and could not subsequently be-

Thomas:         [Sighs]

Andrew:         -arrested and convicted post-office.  He just can’t say “oh, I’m the President, I’m pardoning myself from this impeachment.”

Thomas:         Oh, okay, well that’s nonsensical anyway.

Could Trump run for president even after removal from office?

Andrew:         Yeah, not a huge limitation, but folks have asked about it.  The other question about “could he just run again?”  The answer’s almost certainly no, but-

Thomas:         You mean if he’s convicted.

Andrew:         He’s convicted in the Senate, 67-plus votes, kicked out of office, could he just run again in 2020 or 2024?  The answer is no but here’s why it’s a little bit tricky. 

So Article 1, Section 3, Clauses 6-7 give the Senate the sole power to try all impeachments and it says (and you’ll see that this language is a little bit ambiguous), “judgment in cases of impeachment shall not extend further than to removal from office, (comma), and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.” 

Now the second half of that is really clear, you impeach the President, it kicks him out of office, then he can be indicted, tried normally once he’s no longer President, but the question is, is that first clause is it conjunctive or disjunctive?  In other words, when you impeach does that automatically disqualify him from holding any future office of honor, trust, or profit?  I have to tell you, even though linguistically-

Thomas:         Sure sounds like it, doesn’t it?

Andrew:         It kinda does, right?  Linguistically you would think “oh, it’s an automatic conviction.”  As it turns out from history, from precedent, we have never – we have impeached two Presidents but we have never convicted a President of impeachment.

Thomas:         Hmmm.

Andrew:         We have impeached and convicted Article 3 judges, and in every single one of those cases the Senate has held two separate votes.  They’ve held a vote to convict and kick the judge off the bench and then a separate vote to disqualify that judge-

Thomas:         Okay.

Andrew:         -from holding any future office of honor, trust, or profit.

Thomas:         Yeah, I could see the argument for that. 

Andrew:         Yeah.

Thomas:         So it’s not just an automatic thing, it’s part of the process, they also have the power to say whether or not they wanna disqualify this person going forward forever.

Andrew:         Right, exactly right.  Now I cannot imagine as a practical consequence that if you got 67 votes to kick Trump out of office that they wouldn’t add on “and by the way you can’t ever”-

Thomas:         It’s hard to imagine [Laughs]  Once they’re to that point where they’re actually gonna turn on Trump I can’t imagine them wanting – it’s almost a certainty that they wouldn’t want him to be able to run.

Andrew:         Right.

Thomas:         Because they would finally be free!

Andrew:         Exactly right.  But it’s a really, really interesting question, and to be consistent in my jurisprudence I can’t take the originalist plain meaning of the text, I wanna look and see historically, how have we handled impeachments?  And we’ve handled impeachments with two separate votes.

Thomas:         Yeah. 

Andrew:         So, super interesting question.

Thomas:         You know, it kinda makes sense to me, I could see a possible scenario at least maybe in the founder’s minds where it’s like, “well, we’re impeaching you for this conduct but it’s not serious enough to say you never get to run again.”  I guess that conceptually makes sense, there could be something that’s “alright, we’re impeaching you,” but it’s similar to how when you’re convicted of crimes there’s different kinds of sentences, lengths of time that we wanna keep you in prison or not, and maybe there’s something that’s just worthy of impeachment but not enough to say you can’t ever hold any office again in your life.

Andrew:         And that seems to be a possibility contemplated by the United States Senate in the 19th Century, if not necessarily at our founding and today.

Thomas:         Right, okay.

Andrew:         So there we go.  I, gosh!  I have the insight as to why Mitch McConnell is Mitch McConnell!  I have so much I wanna share! [Laughs]  

Thomas:         Does it involve being birthed out of the dirt in Saruman’s little cave that he has?

Andrew:         [Laughs]  

Thomas:         In a sack?  The Uruk-hai?

Andrew:         [Laughs]  

Thomas:         ‘Cuz that’s the insight as to why Mitch McConnell is Mitch McConnell.  No, but I don’t think that’s what you’re referring to.

Andrew:         Not quite.  I’m close, but not quite.

Thomas:         Alright.  There’s so much, there really is, and we haven’t even gotten to thanking our patrons for First Timer Friday!

Andrew:         Yeah!

Thomas:         Which, okay, it’s kind of funny that we made the switch so that there’d be a little more time on Fridays, but then we decided to have a bunch of First Timers!  [Laughs]  So here’s what we’re gonna do.  We got way too many First Timers to thank for one week so we’re gonna space it out, so don’t worry if you don’t hear your shoutout don’t panic, it’ll be in future weeks, we’re gonna space these out for a little while so that we’re not just reading names for eternity.  So here we go, our first batch of First Timer Friday, take it away Andrew!

[Patron Shout Outs]

T3BE – Question

Thomas:         Alright well, all those fine, fine patrons can enjoy this extra long bonus segment coming up.  But first, of course, T3BE with special guest!

[Segment Intro]

Thomas:         And we are joined by a special guest for T3BE, it’s Emma McClure, a little sneak preview of our Tuesday episode which is going to be an interview on Brexit, on the recent decision, lots of stuff.  But for now Emma McClure is here to play T3BE!  How’re you doing Emma?

Emma:            I’m doing fine, Thomas.

Thomas:         Are you worried?  Are you nervous? [Laughs]   Maybe I need to start psyching people out.

Emma:            I’m fine ‘cuz I’m-

Andrew:         [Laughs]  

Emma:            -prepared to use the excuse that this isn’t my area of law.

Thomas:         Yeah, me too!

Emma:            It’s the wrong jurisdiction, so, yeah.

Thomas:         That’s a good, I should use that.  You know, Andrew, if this was the Canadian bar I would be fine.  That’s my area, but no. [Laughs]  

Andrew:         [Laughs]  

Thomas:         Thanks for being a good sport and playing.

Andrew:         Well let’s hope this is not a real property question that dates back to 13th century Saxony, because then as a solicitor you could argue, but we’re not gonna make that argument.  Alright, buckle up, this is a question about a bright 12 year old child who attended a daycare center after school. 

The daycare center was located near a man-made duck pond on the property of a corporation.  During the winter the pond was used for ice skating when conditions were suitable.  At a time when the pond was obviously only partially frozen the child sneaked away from the center’s property and walked out onto the ice over the pond.  The ice gave way and the child fell into the cold water.  He suffered shock and would have drowned had he not been rescued by a nearby passerby.  At the time of the incident the pond was clearly marked with numerous signs that said “Thin Ice Keep Off.” 

When the child sneaked away from the daycare center the center was staffed with a reasonable number of qualified employees and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises.  There had not been a previous instance of a child coming onto the corporation’s property from the daycare center.  The jurisdiction follows a rule of pure comparative negligence.

Thomas:         Yeah.

Andrew:         That should totally help you, Thomas.  In a suit brought by the child’s behalf against the corporation and based only on the facts above, who is likely to prevail?  A) The child because the corporation owes a duty to keep its premises free of dangerous conditions.

Thomas:         Oooh.

Andrew:         B) The child because the pond was an attractive nuisance.  C) The corporation because the danger of thin ice may be reasonably be expected to be understood by a 12 year old child.  Or D) The corporation because the daycare center had a duty to keep the child off the ice.

Thomas:         Yeah, this is hard and now I’m – this sucks, too, ‘cuz I know… Okay, pure comparative negligence – I can’t remember which one’s which now.  Comparative negligence.  Which one’s the one where you assign blame based on a percentage?  I can’t remember.  Alright, what do I think is going to be the rational thing to do here?  I mean the question takes pains to talk about the fact that the daycare center is reasonably staffed, they were exercising reasonable care, but that the child just snuck off and it’s the first time it’s ever happened.  [Sighs] Pure comparative negligence.  Who is more negligible in this scenario?  It feels to me …

Andrew:         [Laughs]  Sorry, I gotta jump in.  Negligible is- [Laughs]  

Thomas:         My brain was on autopilot.  Yeah, who’s more negligent is what I meant to say.

Andrew:         Who’s tinier! [Laughs]  

Thomas:         My brain was already onto something else mid-sentence.  Yeah, who is more negligible! [Laughs]  I think the child is the most negligible, but in terms of negligence I would have to say that it seems to me that the corporation to me is slightly more? 

Maybe … it’s hard, you’re near a daycare center, but whose fault is it that they’re near a daycare center?  Is it really the corporation’s fault or is it the daycare center?  During the winter the pond was used for ice skating … let’s just make sure I’m not missing anything.  Child – wow, I just don’t.  This is really hard, even just rationally speaking for me to say who would be more at fault? 

The daycare, which seems to have been exercising reasonable everything, versus the corporation.  I’m not sure, I’m leaning toward the child winning, because I think the deal is, the child brought a lawsuit just against the corporation, so they didn’t try to go after the daycare center, they’re probably following the money [Laughing] I guess, although the daycare center I’m sure is loaded with insurance so they probably should’ve gone after them, and I’m guessing the corporation’s defense would be something like “well, it’s actually gonna be the daycare center’s fault.”  So that would be, like, D, which is the corporation because the daycare center had a duty to keep the child off the ice.  So that’s an attractive one. 

Let’s go through the answers, A the child because the corporation owes a duty to keep its premises free of dangerous conditions.  I don’t really love that, ‘cuz I’m not sure that’s entirely right.  B – for some reason I’m kind of attracted to B.  Maybe it’s an attractive nuisance, but B, the child because the pond was an attractive nuisance. 

I dunno why, I just feel like something about that answer is sticking out to me.  C, the corporation because the danger of the thin ice may reasonably be expected to be understood by a 12-year old child.  Now that’s interesting.  12 years old.  You would actually think that would be old enough.  I mean, 12.  You gotta know the thin ice is – you know, it’s not an 8-year old, it’s not a 6-year old.  12 you’re almost going into High School in a year or two, so hopefully you would know not to go on thin ice? 

Maybe that’s…  Augh, that complicates things.  I’m down to B, C, or D.  D is a simple-

Andrew:         [Laughs]  

Thomas:         -the corporation because the daycare center had a duty.  [Sighs] That one’s – gosh this is a hard question because I could really see it going either way.  Attractive nuisance.  [Sighs]  Uhhh, this is really hard.  I was gonna eliminate C because, you know, I dunno why, but then when I read it again I was like “well, it is a 12 year-old.  They should know.”  How old [Sighs] I dunno.  This is impossible.  How about – and I have a streak at stake too, I think!  Aren’t I three in row?  This is – can I flip a three sided coin?

Andrew:         You do.  Yeah.

Thomas:         [Laughs]  

Emma:            [Laughs]  

Andrew:         Yeah, pick one to be if the coin land on its edge!

Thomas:         That’s the really rare one.  I feel like D is the very simple answer.  D is like “alright, sorry, you gotta keep the child off our death pond that’s on our property.”  I think that’s – you know what, I’m gonna keep it simple. 

I’m gonna go with D, the corporation, there’s going to be – I’m just gonna go with D.  I’m gonna keep it simple, I think that’s the straightforward answer, I’m gonna hope they’re not trying to trick me.  Although, again, they’re trying to trick me with the reasonable number of qualified employees and the employees were exercising reasonable care.  I’m gonna go with D, I’m very attracted by B for some reason and possibly C, but I’m going with D.  Alright, Emma, how’d I do?

Emma:            So… [Laughs]  I’m gonna zag.  I’m gonna say that my answer’s between A and B.

Thomas:         Oooh.

Emma:            Initially because my sympathies are with the 12-year-old child over a corporation.  [Laughs]  

Thomas:         [Laughs]  

Emma:            And then between the two of them I’m gonna say that B, I’m gonna call an attractive distractor ‘cuz it’s got “attractive” in it, that sounds sensible.  And then I’m gonna go with A on the basis that pulling from my knowledge of when I went to law school, I appreciate it’s a different jurisdiction, I know that from negligence in the U.K. that you are under educe to keep your premises free of dangerous things even if someone’s breaking in to steal things from you, so I’m gonna go with A, the child.

Thomas:         That’s a strong argument, you’re probably right.  You know what?  Darn.  Well that’s it, though, them’s the rules.  I went with D, our esteemed guest went with A, and you’ll have to tune in to Tuesday’s episode to find out who got it – hopefully we both got it wrong!

Emma:            [Laughs]  

Thomas:         That’s the best case scenario for me! [Laughs]  

Andrew:         [Laughs]  

Thomas:         I don’t think I got it right, but there you have it.

Andrew:         Is that really the best case scenario for you, Thomas? [Laughs]  

Thomas:         That’s the best thing I can reasonably hope for.

Andrew:         [Laughs]  So I wanna add two things here.  Number one-

Thomas:         Oooooh.

Andrew:         -this is a question I would have gotten wrong-

Thomas:         Even more teasing!

Andrew:         -if I had been forced to answer it.  I wanna concede to that one.  And, if you’d like to play along with Thomas and Emma you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess and your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed. 

Thomas:         Okay, like we said there’s gonna be a nice bonus segment here, an extendo edition for patrons even though, Andrew, how long can we extend?  We’re already at least 90 minutes, I mean, how much?  We’re gonna need a bigger boat. 

Andrew:         Yeah, we’re gonna need a bigger podcast, ‘cuz I got a lot.

Thomas:         But we love our patrons, so we wanna, you know.  A lot of people pledged, we wanna give you something extra again this week ‘cuz we love ya, so stay tuned patrons.  Everybody else we’ll see you on Tuesday with a fantastic interview with Emma McClure on Brexit, and [Laughs] a lot of madness involved in that!  So we’ll see you then!

[Show Outro]

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