Transcript of OA322: Blackouts, Taxes & House Rules

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[Show Introduction]

Thomas:         Hello and welcome to Opening Arguments, this is episode 322.  I’m your host Thomas Smith, that over there is Andrew Torrez.  How you doin’, Andrew?

Andrew:         I am fantastic, Thomas!  You know, one of the things that I love the most about my recording studio, which is located in my basement, is that it is served by electricity. So apropos of nothing, how are you doing?

Pre-Show PG&E Rant

Thomas:         Oh, wow.  Yeah, that’s a privilege nowadays. That’s something that not everybody in the good old U.S. of A. could say!  Doing okay, thanks for just instantly triggering me because, found out today, we may be speaking to – you know, of the pool of people who could be listening to us, it’s gone down by about two million because something like two million Californians might just have no power for five days. Can you just – Andrew-

Andrew:         [Sarcastically] Oh you precious little snowflake. [Laughs]  

Thomas:         Can you imagine not having power for five days?

Andrew:         No!  When the power goes off for about five minutes, I start twitching.

Thomas:         Yeah, this is coming from somebody – I grew up in the sticks, so the power would go out because somebody hit a power line somewhere with their car and we’d call PG&E and they’d be like, “Oh, there’s people where you are?” and we’d be like, “Yeah, there’s a couple people here, can you turn the power on?” And they’re like, “alright, we’ll send a Sherpa, a man and a donkey out there to find where you are and turn the power back on.”  And so I’m no stranger to power outages and I think the longest one that we ever had was just shy of two days.

Andrew:         Yeah.

Thomas:         And let me tell you, that’s – you can’t go back into civilized society after you haven’t had power for 32 hours.  You lose all ability to socialize, you’re not even a human anymore. You’re more beast than man. 

Andrew:         [Laughs]  

Thomas:         You can’t live without power for five days!  Now, let me tell you this.  The reason that two million Californians, including my parents including, who by the way, you know, my dad’s pretty sick.  There are a lot of sick elderly people who all of a sudden are gonna have the power shut off.  My wife’s parents.  No power for five days! 

Why, you might ask?  Did a meteor hit a power plant? Are we under attack? Is it the Russians? What is it?  No, it’s a precaution because it’s really windy, so they don’t want any power lines to start a fire. So it’s just in case… For five days!  Okay, so, sorry, I had to bring this onto the show because how?

My legal question for you, listener Thomas S.  [Angry] How in the world is this legal?  This is a human rights violation. How many people are gonna die because of this? I’m not even joking, like how many, you know – five days of business losses, this has gotta be a massive hit to the economy of California.  This is not the country, either, it’s the Bay Area, it’s Silicon Valley, it’s San Jose, it’s all those areas. It’s insane! What is happening?!

Basis for Power Shutoff

Andrew:         So here’s the basis. The California Public Utilities Code Section 451 requires that public utilities shall furnish and maintain adequate reasonable service as necessary to promote the safety, health, comfort, and convenience of its patrons, employees and the public. That provision, in broad language, has been interpreted through rulemaking by the California Public Utilities Code to provide for what the California Public Utilities Commissions calls “de-energization” events-

Thomas:         [Laughs]  

Andrew:         -and what PG&E calls “public safety power shut off events”.  It is as you described.  It is that if the belief is that the combination of extrinsic weather factors would create potentially unsafe conditions that would cause wildfires that could rage and-

Thomas:         Well I’m just gonna jump in for five quick seconds.  The combination of weather factors, plus they haven’t kept their clown-horning infrastructure up to date. So everything’s like old and crappy!  That’s the reason why it might cause a fire. It’s not, you know – it’s their fault.

Andrew:         Oh yeah, no argument that it is not their fault. The question is, when you have an entity that is too big to fail, like PG&E, which, by the way, is in bankruptcy.  It is undergoing a Chapter 11 reorganization-

Thomas:         [Laughs]  It’s trying to fail!  As hard as it can!

Andrew:         -because of the 8 and a half billion dollars in liabilities that it has from starting the last wild fire.  [Laughs]  So there really is – I mean, obviously I am sympathetic and it should not be an option to turn off power for five days. 

From PG&E’s perspective, they’re like, “Look, you know, we’re damned if we do and damned if we don’t. If we If we don’t shut off the power and we start another wildfire like the 2017 wildfires, then that’s gonna cause untold billions of dollars in damages, loss of life, loss of property and injuries.

Thomas:         You know, it might be safer for them to just not serve power to anybody at any time. Why don’t they just – it sounds like that would be the safest option.  I’ll help you, just don’t be a power company if you can’t serve power to people in a reasonable way. How about that? Get right on out of this business!

Andrew:         [Laughs]  I don’t disagree with that. So the legal standards are that PG&E gets to set the standards for when these events are triggered, but that is subject to a reasonability review by the California Public Utilities Commission.

So what you can do is make sure that you are communicating with the California PUC. Make sure that they bring an investigation as to whether this was reasonable in light of the operative standards, I am going to link the resolution in the show notes that was passed in 2018 after the last round of wild fires – well not the last round of wildfires, but after the 2017 wildfires that were so destructive. 

There is a form of public accountability here.  At the end of the day the fact that the crumbling electrical infrastructure is in the hands of a private investor-owned company that essentially has this state over a barrel, that’s a real big structural problem! Hopefully this will provide the appropriate incentives.

I can tell you every year, PG&E and the other electrical company – across the country, California is not unique on this – lobby the government to [Laughing] reduce liability standards for electrical companies for natural disasters.  So the next time you hear Republicans talking about how this is “unnecessary government red tape and we gotta reduce bureaucracy” that “reducing bureaucracy” means being stuck with situations like this.

Thomas:         No power for five days!

Andrew:         Yeah, where your power company can be like, “Well, you know, sorry!”

Thomas:         “Just in case.”

Andrew:         This is the this is the negotiation we’ve entered into that because we have you over the barrel, because there is no power company as an alternative, we’re going to undertake this anticipatory measure that, as you point out, is gonna be massively, economically destructive and cause potential loss of life in in your state.  So there you go!

Thomas:         Okay.  I’ll try to leave it there – but we’ve got money in this state, you know?  Let’s just take this POS company over, and make it a state run thing. That way the liability-

Andrew:         Ah, but now you’re a flaming socialist!  I mean, look-

Thomas:         Yeah, [Shouting] I want to be a flaming socialist who has [Clownhorn] power!  Sorry, Brian, you’re gonna have to clownhorn a little bit, but, yeah.  I’d rather be a socialist who has the ability to log onto the Internet and stuff, than “oh we’re worried about liability.  No power for five days. Good luck!  Good luck, everybody.”  

Unbelievable.  Hope my parents don’t die! Okay, let’s move on with the show. God. All right, sorry, I’ve just been so mad about this for like three days because I’ve heard about – from my mom, keeps telling me – and I’m like this and, sorry, Mom.  She doesn’t listen. But like when my mom tells me something, most of the time I’m like “alright.”

Andrew:         My mom listens to the show! You get your mom listening to the show.

Thomas:         Yeah, but I mean, my mom’s a Fox News viewer. So when she tells me something, usually I’m like, okay, is this real?  What were we talking about here? And so for a while it was like, okay, this is this is a conspiracy. Is Obama turning off your power? Like what’s the conspiracy theory? And then eventually it’s like, oh, no, this is real! [Laughing] This is actually happening! [Sighs]

Andrew:         Well, ya know, next time, over Thanksgiving, you know, maybe suggest to mom that government oversight of utilities is not a bad thing!

Thomas:         Yeah, perhaps.. Okay. Thank you. Thank you for looking into that, Andrew. I’m just confused. I did want to ask you, can we sue anybody or just because that statute or whatever it is says they could do this the only recourse-

Andrew:         Yeah, it will depend on what the PUC decides.  If they decide it’s unreasonable then absolutely that will open the floodgates.  If they decide that it’s reasonable, that will be a defense and they will be able to raise that in any kind of lawsuit, to say “look, we were operating under color of law, were permitted to do this.

There was explicit rule-making authority and an independent body adjudicated that our decision prospectively to de-energize was, not only authorized by statute, but appropriate, given our mandate to protect the public.” That’s gonna be their argument.

Thomas:         I hope that board is, like, not full of people who are lobbyists or being lobbied or whatever. I don’t know who that is, but like, hopefully it’s not corrupt.

Andrew:         I don’t know the composition either, but that’s another important lesson of, you know, don’t dismiss public jobs. You know when you’re running for a seat on the Public Utilities Commission?

Thomas:         Hopefully we have some good people in there.

Andrew:         Yeah, Exactly.

Umunhum Brewsuit

Thomas:         Oh that’s infuriating.  Okay, on a positive note, I wanted to give a quick shout out to our friends over at Umunhum Brewing.  Sorry patrons, this is not an ad. Don’t worry. This is just a shout out.  Umunhum Brewing, Travis over there is providing us with a delicious case or two of Umunhum Brew for our platinum event. So we’re going to have that as an option. Now we’re gonna have plenty of drink options.

Andrew:         That’ll be good for me! [Laughing] What’s everybody else gonna drink?

Thomas:         Yeah, exactly!  So I just want to give Travis a little shoutout, everybody, our friends at Umunhum.  Can’t wait to enjoy some of their tasty brews!  I mean, I already have been.  I’ll be honest, I tapped into the [Laughing] company reserves a little bit, sorry Andrew!  I owe you a few bucks.

Andrew:         [Laughs]  Alright!

Thomas:         Sorry, it’s great stuff!  [Laughing] We’ll have it on the platinum night.

Andrew:         Who do I sue to get my beer back?!

Thomas:         You can sue me!  Hey, I’ll make it up to you. We’ll enjoy a nice tall can of Umunhum. So, thank you very much!  Just a little shout out!  And now, finally, let’s get to [Laughing] the show!

Andrew:         Let’s get to the show!

Thomas:         There’s a little bit of news happening, a little bit of news, and we’re going to – there’s so much.  It’s Trump, it’s a Trump show. Every segment is Trump, because it has to be. That’s just how it is, so your preview for the episode is Trump.

[Segment Intro]

Trump Tax Proceedings

Thomas:         All right, Andrew. First Trump of our Trumpisode, Trump’s taxes. Oh, yeah, this was a rapid turn of events. It seemed like we were getting them, and then they immediately seemed to be stayed by another judge. Was that all according to plan? Or give us the explainer on that.

Andrew:         Yeah, and this – almost no media sources have gotten this correct. They have gotten the top line right.  So on Monday, October 7th, my birthday, the Southern District of New York handed down a comprehensive 75-page opinion written by Judge Marrero that dismissed the lawsuit brought by Donald Trump to quash the subpoena brought by District Attorney of New York Cyrus Vance against Mazars, Trump’s accounting firm, seeking the production of his tax returns. So that was like an hour of “Yay!  We’re gonna get Trump’s tax returns now.”

That was immediately appealed to the 2nd Circuit, and the 2nd Circuit issued an administrative preliminary injunction blocking that rule from going into effect. So we did not get Trump’s taxes on October 7th. But this does not mean that the 2nd Circuit ruled on the merits of the underlying dispute in anyway.

What they did was entered by its own terms explicitly – here, I’ll read from the 2nd Circuits’ Order, it says “Appellant has filed a motion seeking an order temporarily staying enforcement of the subpoena to his accountant.  Because of the unique issues raised by this appeal” (and that’s true) “it is hereby ordered that a temporary administrative stay is granted pending expedited review by a panel of this court.  The scheduling order will issue in the ordinary course.” 

Then, two days later, the 2nd Circuit issued their scheduling order.  This is as expedited as I have ever seen on appellate court. Seriously! The brief, Donald Trump’s brief, is due today, October 11th by 5 p.m. So, you know, you’ll be listening to the show and then in the afternoon, as usual, there’ll be a 5:00 pm news cycle dump when Donald Trump files his brief. 

At the same time, so is the DOJ amicus brief on behalf of Donald Trump, because we’ve turned the Department of Justice into Donald Trump’s personal lawyer. But all of that is due today. Appellees’ briefs – So Cyrus Vance, the State District Attorney’s office in New York – their brief is due Tuesday, the 15th.  That’s one Business day they have to work on it, and then Trump’s reply brief is due Thursday the 17th, then oral argument will be scheduled the week of October 21.

We just did a live Q&A and someone asked how many pages per hour I can read.  This is part of why lawyers have to read hundreds of pages of out an hour and be able to quickly sort between cases. That is a very, very rapid turnaround.  Okay, you wanna appeal to the Second Circuit? Great! You got two days to write your brief.  So that that does not mean – it means we didn’t get Trump’s taxes on Monday.

It does not mean that the 2nd Circuit in any way is pre-judging the argument, because unlike traditional injunctive relief where you look at, is there irreparable harm?

Thomas:         That was the question I was gonna ask you, but you’ve already, yeah, pretty much answered it.

Andrew:         Right.  They are not – it is explicitly just an administrative stay.  Remember, we talk about staying, typically when we talk about staying the effect of an injunction pending appeal we’re talking about enjoining legislation.  So we’re talking – the evaluation is, while it’s not a full adjudication on the merits, it involves that question of “has the party seeking injunctive relief shown a substantial likelihood of success on the merits?”  

This is much more analogous to applying the same standards that ordinarily happen when you just have two litigants, when you have people sue each other. And in the ordinary case – this is governed by Rule 62 of the Federals of Civil Procedure, there’s a 30-day stay.  When a court issues a ruling, there’s a 30-day stay in which their judgment doesn’t go into effect, and that’s to give you time to appeal, to figure it out. Usually we don’t require litigants, like “Okay, you lost. Now I’m gonna play the Jeopardy music in the background. Tell me whether you’re going to appeal or not.” 

No.  You get 30 days and then at the end of the 30 days after careful reflection if you decide not to appeal, the order goes into effect. If you decide to appeal, then the order goes into effect unless you meet certain conditions. One of the easiest conditions to meet is, again the average suit, when you’re talking about depositing money damages – so you steal my beer, I sue you in federal court, federal court rules in favor of me-

Thomas:         Federal Beer Court!

Andrew:         [Laughs]

Thomas:         Take your-

Andrew:         And you appeal that, you’re like “oh come on this case was nonsense, I’m appealing that up to the 9th Circuit.”

Thomas:         The Umunhum was in my custody, I feel like I had a right to at least make sure it was good, make sure it was okay.

Andrew:         Yeah, in the case of Finders v. Keepers. [Laughs]  So you appeal up to the 9th Circuit and what the Court will do is they’ll say “alright, we’ll stay the enforcement of the judgment, you don’t have to pay Andrew back now, but what you do have to do is post a bond.”  It’s called a supersedeas bond. 

Thomas:         A beer bond! [Laughs]  

Andrew:         [Laughing]A beer bond, right!  And you have to show that there’s money to satisfy the judgment at the end of the appeal.  Because think about that, go back to our opening pre-show segment, PG&E, suppose they get a $10 billion damage verdict at trial and then they’re like “okay, well, we’re gonna appeal that” and the Plaintiff’s will be like “yeah, you’re gonna appeal it and by the end of the appeals process you’ll have spent all the money and there won’t be any money for us anymore.

Thomas:         Hmm.

Andrew:         So the Court will be like “okay, post a bond and if you can post a bond that will satisfy that damages result then that will protect the Plaintiff’s interest and we can go ahead.”

Thomas:         So my plan of shotgunning the entire couple cases of beer before you can get your dirty hands on it, not gonna work.

Andrew:         [Laughs]  Not gonna work, right.

Thomas:         Alright.

Andrew:         So that’s all gonna move very, very quickly.  I also have to say, Judge Marrero’s order here at the Southern District is really, really good.  We have talked about in parallel cases, Judge Mehta’s order in the United States District Court for the District of Columbia, similarly good, bulletproof opinion. 

This is really comprehensive and I wanna walk everyone through it because this is the merits of the argument that the 2nd Circuit is considering.  Trump’s counterarguments are terrible. 

So I feel pretty good that the 2nd Circuit is gonna affirm Judge Marrero’s decision and the way in which this case came about, this is so great!  It was such a master stroke by the New York State District Attorney’s office that we have a chance of prevailing in the Supreme Court.  It creates a double-bind and I’m really, really excited to walk you through this.

Thomas:         Hmm.

Andrew:         It’s a little bit of a difficult road to go down.

Thomas:         A journey?  Alright.

Andrew:         Yeah, so let’s take that journey together.

Thomas:         Deep dive time, let’s do it!

Andrew:         Yeah!  First you have a state criminal investigation.  This was referred out by a state grand jury empaneled in New York that authorizes New York District Attorney Cyrus Vance to conduct an investigation to issue subpoenas related to Donald Trump’s taxes in connection with potential criminal conduct.  That’s a big deal! 

You know, this is already going under the radar of “this is all part of the Democrats, blah blah blah.”  No, a prosecutor convinced a grand jury in New York that there was a reasonable basis to inquire into Trump’s taxes in connection with criminal conduct.  They couldn’t do that for you or I!  [Laughs]  

Thomas:         Hmm.

Andrew:         So already there is substantial circumstantial evidence that – again, we don’t know what it is because grand juries are convened, they’re ex parte and their proceedings are confidential.  But they don’t authorize subpoenas based on nothing.  So you have an ongoing state criminal investigation and in connection with that investigation DA Vance issues a subpoena to Mazars, LLP, which is Donald Trump’s accounting firm, and says “hey, turn over the last eight years of your client’s taxes.” 

Then the President files this lawsuit, files this lawsuit in the Southern District of New York, in federal court to get an injunction to stop Mazars from turning over his taxes.  The argument is, “hey, I’m the President, I’m immune from suit, therefore this state proceeding is nonsense so you should quash the subpoena.”  We have covered at great length on this show that that’s a dumb argument, we’re gonna talk about it a little bit more in the body of the opinion, but that’s procedurally what happens. 

Anti-Injunction Act

So step one, state criminal proceeding, state subpoena to Mazars, turn over Trump’s taxes.  Trump goes into federal court and says “I want an injunction, stop this state court proceeding, quash the injunction because I’m the President.”  As it turns out, there is a law that prevents people from doing exactly what Donald Trump has done.  It is called the Anti-Injunction Act. 

Thomas:         Wow.

Andrew:         It’s 28 U.S.C. § 2283, the law is one sentence long and it says this:  “A court of the United States” (that is a federal court) “may not grant an injunction to stay proceedings in a State court except as expressly authorized by an Act of Congress or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”  Now those last two bits are technical and not important here. 

Notice the broad scope of the Anti-Injunction Act.  It says “yeah, we don’t want people to be able to run to federal court to get injunctions to stop State courts from doing what they’re doing.”  So unless there is a law that explicitly says you can do that, you can’t do that!  It’s barred by the Anti-Injunction Act.  That’s what AD Vance responded, he was like “dude, Anti-Injunction Act.” 

42 U.S.C. 1983 – Civil Action for deprivation of rights

Then Donald Trump amended his lawsuit, and he amended his lawsuit to assert a claim under 42 U.S.C. § 1983.  You may recognize that numbered statute.

Thomas:         Sure.  [Laughs]  Pretend I do!

Andrew:         Well Section 1983 – I know you do so, just for the sake of our listeners who obviously don’t.

Thomas:         Uh-huh.

Andrew:         Section 1983 claims are what you bring against the government when it violates your civil rights.

Thomas:         Oh!  Right, okay.

Andrew:         Yeah, so when a cop beats the crap out of you, you can sue them under Section 1983 for damages because they have violated your civil rights. 

That’s what Donald Trump said, he said “look, okay,” and Section 1983, by the way, is an exception to the Anti-Injunction Act.  So that was then Donald Trump’s response, “oh, okay, you’re invoking the Anti-Injunction Act, well I’m arguing under Section 1983 that you violated my civil rights, this is a witch hunt and that’s immune from the Anti-Injunction Act, checkmate!”  Or so you’d think…

Thomas:         [Laughs]  

Andrew:         But as it turns out, tough on crime judges have been trying to gut the effectiveness of Section 1983 for as long as we’ve had Section 1983!

Thomas:         Ahh!  I think this will be another case of hoist by their own petard!

Younger Abstention Doctrine

Andrew:         It is indeed!  So the Supreme Court in 1971 – and again, in fairness, 1971 pretty liberal Supreme Court, but nevertheless immediately after crafting the protections for defendants in the 1960s that we’ve talked about, in the 1970s even the liberal Supreme Court was sort of instantly rolling back the scope of the exclusionary rule and that sort of thing.  They issued a case called Younger v. Harris

Basically it says this, it says, look, yes, Congress has authorized by statute the fact that a criminal defendant can sue the police force for beating the crap out of them, but what you can’t do is you can’t raise that 1983 claim while the underlying State court decision is pending.  Think about the practical reasons for that immediately-

Thomas:         Hmm.

Andrew:         -which is, look, yeah, we don’t want evidence of how badly the cops mistreated you to come out in your actual criminal case.  We don’t want the jury to go “okay, well he probably did steal the car but the cops beat the crap out of him and they shouldn’t have so therefore we’re gonna find him not guilty for stealing the car.”

Thomas:         They’re trying to, like, separate the two proceedings so that in the juries mind it’s like “okay, here’s one thing,” but later on you can sue for the other thing?

Andrew:         Exactly, exactly, exactly right!  So that case, Younger v. Harris gave rise to what we call the Younger Abstention Doctrine.  Abstention is when a federal court that otherwise would have jurisdiction to hear a case says “you know what, we’re gonna abstain for a little bit.  Not now, we’re just gonna pause.” The reason for that-

Thomas:         Yeah, they’re not throwing it out or anything, they’re just-

Andrew:         Nope.

Thomas:         -not doing it yet.  Okay.

Andrew:         Not yet, that’s exactly right.  And remember, that’s because federal courts are courts of limited jurisdiction and State courts are courts of original jurisdiction. 

You can go to a State court for anything, you go to a federal court only as specifically authorized by the Constitution and the enabling statutes, the Judiciary Act of 1789.  [Laughing] As amended.  It’s not all like thee’s and thou’s. 

But as we’ve talked about on this show, the primary way in which you get into federal court is either you have a federal right of action under a federal statute or you have diversity, you have parties who are citizens of different states and the amount in controversy is at least $75,000 or more.  So as a general principle, federal courts are, like, if a claim could go both to federal court and to State court maybe we should sit this one out.  Let’s let State courts do their job and we’ll come in if we have to.

Thomas:         Hmm.

Andrew:         That’s kind of the rationale behind it.  Now, let me head off a little bit at the pass, Younger Abstention is not like Chevron Deference.  This is not a thing that conservatives hate and gnash their teeth over and want to get rid of.

Thomas:         Yeah.

Andrew:         This is a thing they love!

Thomas:         Right.

Andrew:         They absolutely do not want 1983 plaintiffs in federal court to be able to get injunctions to stop State court proceedings.  They wanna sentence those, you know, [Laughing] criminal defendants and then have them try and sue localities from jail, from prison, with the stigma of being a convicted felon and with the limited resources that come from being in prison. 

There is not only no compelling institutional drive by the far right to get rid of Younger Abstention, there is every effort made to sustain it.  In fact, Younger Abstention is so robust that it applies even when the State files its proceedings after you’ve initiated your federal 1983 claim!  [Laughs]  In other words, it doesn’t even have to be – it can be part of a (quote) “an existing proceeding” if that existing proceeding was filed after your federal proceeding but it’s live at the time that your federal proceeding is being adjudicated. 

There are restrictions on that, the federal proceeding must not have proceeded to any substantive resolution and some other things that don’t matter, but my point on that is Younger Abstention is robust and it is particularly thought highly of by conservatives.  There are three exceptions that apply to Younger Abstention, times where courts will say “okay.”  Abstention is a discretionary doctrine-

Thomas:         Before we get into that-

Andrew:         Oh, okay, sure!

Thomas:         We should probably take a break and then I’m gonna ask you a question.

Andrew:         Okay, let’s take a break.

[Commercial –, promo code “OA” for 10% off and free shipping]

Thomas:         So pausing on this three exceptions, before this, this is all under the idea that his claim even makes any sense, right?  ‘Cuz like-

Andrew:         Yes.

Thomas:         -if we evaluate the merits of all this, it’s all nonsense, right?

Andrew:         Correct, and I’m gonna get to that.

Thomas:         Okay, okay. 

Andrew:         But I wanna show the brilliance of this multilayered opinion.

Thomas:         Gotcha.

Andrew:         So under Younger Abstention – remember that abstention is not like jurisdiction.  If the court lacks jurisdiction, if a claim is nonjusticiable or if the court lacks jurisdiction then they can’t hear the case.

Thomas:         Mm-hmm.

Andrew:         But abstention is “we think it’s a good idea not to hear this case,” and there are various abstention doctrines that apply, we’ve talked about some in the past. 

So because the court has discretion, they then fashioned some exceptions to it.  They’ve said, look, we won’t abstain under Younger if, one, we think the prosecution is in bad faith.  You can see liberal hippy judges immediately putting that one into place, going “look, the cops beat the crap out of this guy and yes the prosecutor is still prosecuting them but we can look at it and say independently as a court, that prosecution is nonsense, it’s in bad faith and we’re not going to abstain in this case.”  So that’s exception number one. 

Exception number two is where the prosecution is part of a pattern of harassment against an individual.  Again, same thing, okay this is somebody that we see the State has taken multiple swings and this guy and we’re gonna recognize that as a court and go, “yeah, again, this does not seem to be a legitimate or fair prosecution so we’re not gonna abstain in those kinds of instances.” 

Then the third is sort of a catchall, and it’s phrased differently in different jurisdictions, but it is when the underlying law being enforced is completely unconstitutional, where there’s really no underlying basis for the ongoing State court proceedings. 

So these are pretty limited exceptions, and that is the basis for the first half of Judge Marrero’s decision.  He says, look, everything unfolded the way that I just described it to you and now we have a Plaintiff raising a Section 1983 claim and that’s an ongoing State prosecution.  There was a State investigation into Donald Trump’s criminal conduct and, you know what?  All these arguments that he’s raising here in favor of an injunction are arguments he can raise in that proceeding, so there’s no need for a federal court to come in and tell a State court what to do.

Thomas:         Hmm.

Andrew:         We’re going to abstain. 

It’s a really, really good decision, and it’s the kind of decision that you could see being affirmed by a conservative Supreme Court.  If you had – if there were five Jared Kushner’s on the Supreme Court – there are probably at least two, but if there were five Jared Kushner’s you could see them crafting some kind of-

Thomas:         You know, as much as I hate the Supreme Court I think even that’s a little far.  I mean, Jared Kushner is an idiot who knows nothing.

Andrew:         Yeah, no I-

Thomas:         [Laughs]  At least these howler monkeys have read a book!

Andrew:         [Laughs]  I’m glad that Thomas is the voice of reason, curtailing me, bringing me back, that was hyperbole.

Thomas:         Point taken, there’s at least two or possibly two and a half who doesn’t really matter, it doesn’t really matter what the case is it’s just outcome based it seems like.

Andrew:         Yeah, I think that’s right.

Thomas:         But you think there’s enough semi-rational operators on this Court to look at this and say “nah, we can’t.”  [Laughs]  “We’d love to help you, Mr. Trump, but can’t do it.”

Andrew:         I think that’s right because you would not want to write a wide-ranging opinion that curtailed the Younger doctrine.

Thomas:         Hmm.

Andrew:         Now look, you could still craft a Bush v. Gore style opinion.  You could say “okay, well Younger Abstention doesn’t apply when it’s the President.”  You could do that.

Thomas:         Well that’s gonna be the Negatron prediction, here!  I’m curious, we’ll see.

Andrew:         [Laughs]  Alright!

Thomas:         That’ll be Negatron prediction.

Andrew:         Fair.

Thomas:         Optimist Prime says they won’t do that.

Andrew:         I think the Younger argument has a really good chance of success in the Supreme Court, but remember, I’ve also talked to you about how a District Court judge will try to bulletproof her opinion, or in this case his opinion?  Judge Marrero does that here. 

So the first 35 pages are about Younger Abstention.  The next 40 are about the underlying argument on the merits, and it begins, again, with a candid acknowledgment. 

Judge Marrero Decision Part 2

This is what bulletproofing means.  (Quote) “Notwithstanding the Court’s decision to abstain and mindful of the complexities that Younger presents, the Court will proceed to examine the merits of President’s claimed immunity and articulate an alternative holding so as to obviate the need for remand in the event the 2nd Circuit disagrees with the abstention holding.”  So right there, out there on the table, “hey look, even if I’ve gotten this whole Younger stuff wrong, by the way, the underlying argument is total nonsense.” 

And that is, again, the same four-part inquiry we’ve always talked about on injunctive relief.  The primary two levels of inquiry being one, is there irreparable harm; and two, does the party seeking the injunction demonstrated a substantial likelihood of success on the merits.  Here the Court says “look, you don’t have either of those.  You specifically” (and this is, I think, a really key distinction) “you do not have irreparable harm in turning over your taxes to a grand jury subpoena because grand juries are confidential.” 

This is not like turning it over to Congress.  And there are pending lawsuits we could – I had it on the list to talk about but we’re probably not gonna talk about those.

Thomas:         Yeah, but I had to yell about PG&E for an hour, sorry. 

Andrew:         Yeah, well, that’s okay.

Thomas:         Well, it was 5 to 10 minutes. 

Andrew:         It’s okay. 

But, look, this is a distinction between the public lawsuits being brought by the Congressional Oversight Committee and a lawsuit to enforce a grand jury subpoena that is confidential being brought by the State of New York’s District Attorney’s office. 

So number one, there’s an argument of “we’re not sure that this is irreparable harm,” it’s gonna be carefully confined and if they’re turned over by mistake you can shred them.  Courts do that kind of stuff all the time!  Trump’s argument to the contrary here is not a bad one, I wanna be as fair as I can to Donald Trump. 

There is an argument and there is case law that says, look, once the cat’s out of the bag the cat’s out of the bag, you can’t cram it back in the bag.  You know this as a cat lover.

Thomas:         Cat law!  Yeah, ‘cuz I called 183-CATLAW1, whatever that was. 

Andrew:         Yup!

Thomas:         I haven’t seen that patron recently, is that still there?

Andrew:         I dunno!  Buttercup.

Thomas:         Yeah, maybe they have a different name now.

Andrew:         Maybe, who knows? 

So that’s not a terrible argument, but the likelihood of success on the merits, this is where Judge Marrero really shines!  He deconstructs the DOJ Office of Legal Counsel memoranda that kind of makes it sound like maybe he listened to episodes 290 and 300 of the show. 

I love this, I quoted this one out, he says “This Court is not persuaded that it should accord the weight and legal force the President ascribes to the DOJ memos or accept as controlling the far-reaching proposition for which they are cited in the context of the controversy at hand.  As a point of departure, the Court notes that many statements of the principle that (quote) ‘a sitting President cannot be indicted or criminally prosecuted’ (end of quote) typically cite to the DOJ memos as the sole authority for that proposition. 

Accordingly, the theory has gained a certain degree of axiomatic acceptance and the DOJ memos which propagate it have assumed substantive legal force as if they’re conclusion were inscribed on constitutional tablets etched by the Supreme Court”

Thomas:         [Laughs]  

Andrew:         Love that! 

Then he says, rather dryly, “The Court considers such popular currency for the categorical concept and its legal support as not warranted,” which strikes me as a very Andrew-way of putting it.  So then, like I said, after that there’s 40 pages of analysis that says “this is just a sternly worded letter,” and the letters cite earlier letters which cite earlier letters which cite nothing.

Thomas:         Yeah.  And we all know that sternly worded letters are not worth the sternly worded paper they’re sternly printed on, these days.

Andrew:         Right!  So it is, again, in my view, if this were the sole basis I would be on the Negatron side at that Supreme Court, but the Younger Abstention stuff is really, really good! 

So, in any event, in just a couple of days – well, I guess in two weeks, we will get a ruling from the 2nd Circuit on this issue.  They are moving ahead at breakneck pace.  You know, we’re not gonna go through but remember that the Mazars case, the parallel case involving the Congressional subpoena is still pending before the DC Circuit as of this morning there was nothing new to the docket. 

The last pleading was filed on August the 20th, so the DC Circuit is taking it’s time, it could move a little more quickly for my taste, but that ruling could come out any day now.  There are multiple other proceedings and avenues, including the DC case involving the New York law requiring Donald Trump to turn over his taxes.  [Laughs]

So, look, there’s a lot out there and, again, I’m optimistic those inquiries are going forward and I think there are good reasons to believe at the end of the day, [Laughs]  what I predicted back when I thought the IRS would actually comply with the law rather than with whatever the Trump White House says, which is eventually we’re gonna get Trump’s taxes.  So there you go!

Thomas:         Alright, wow!  I’m excited!  What’s the soonest we’re gonna get these bad boys?  2027.

Andrew:         [Laughs]  Look, it depends on what the Supreme Court does.  There is – and again-

Thomas:         That’s why I asked, what’s the best case?  I was trying to be bright side.

Andrew:         Right, yeah, the best case scenario is October 22 the 2nd Circuit affirms Judge Marrero’s order, President Trump immediately appeals to the Supreme Court and the Supreme Court denies Cert.  That could happen.

Thomas:         Sooo then we get ‘em?

Andrew:         October 23rd, yeah!

Thomas:         Wow that would be fast.

Andrew:         Because, again, remember Mazars, as tightly as they are tied to Donald Trump-

Thomas:         Yeah, they don’t care, they’re not-

Andrew:         Yeah, Mazars, they get a court order they’re turning those documents over.  They’ve got ‘em in a special folder ready to go out.

Thomas:         Someone should just whistleblow those, but anyway.

Andrew:         I agree.  Two votes!

Thomas:         [Laughs]  Do take whistleblowing advice from a podcast!  Alright well it’s time for – [Laughs]  well how much are we gonna have time for?  It’s time for our next Trump segment, I guess!

[Segment Intro]

Yodel Mountain – Is a Vote Required to Open Impeachment Inquiry?

Thomas:         We’re gonna talk about Trump’s – in the categories, in the records that we’re keeping of all the terrible arguments about impeachment, what’s the latest, Mr. Torrez?

Andrew:         Yeah, the latest argument that was concocted this week that was the subject of a truly hilariously bad letter from Pat Cipollone, who is one of Trump’s personal lawyers and hacks and idiots, is the argument that an impeachment inquiry requires a full vote on the floor of the House, we haven’t had that yet so therefore there’s no real inquiry underway. 

I want to say, and I want to be 100% fair about this, in the cases there is a kernel of underlying truth that has to do with respecting past outcomes if not judicial precedent.  It’s hilarious thinking that this is coming from, you know, the party of Mitch McConnell, but nevertheless I want to be as fair as possible, and that is in both the contemplated impeachment of Richard Nixon and the actual impeachment of Bill Clinton there was a formal vote in the House of Representatives to begin an impeachment inquiry that was a House-wide vote rather than just a committee decision. 

Now, two things that you need to know.  A, that was not required by the Constitution or by the Rules of the House of Representatives, and, B, those cases are very, very factually distinguishable from the instant case. 

It would be similar to if the House of Representatives had decided to begin an impeachment inquiry on the basis of the Mueller report.  That would have made it more analogous to the Clinton scenario, because in each of those cases you had wide-ranging amounts of information already known. 

Here, you have some information that’s already known thanks to [Laughing] the President releasing the TELCON of his call and Tweeting and sending Rudy Giuliani out to confess to crimes on Fox News, but you have an investigation that actually needs to take place – an ever expanding investigation – and that investigation involves matters of national security.  As we’ve talked about, legitimate issues where you want those potentially actually sensitive matters about the U.S., Ukraine relations and others to be disseminated to a congressional committee that can keep some of them confidential.  So that’s a really important area of distinction. 

The other thing that is – and I’m gonna talk about the legal requirements.  So the legal argument is bonkers, and I just wanna be 100% clear on this: the Constitution does not mention the word “impeachment inquiry,” and certainly does not require that an impeachment inquiry be taken before a full vote of the House of Representatives.

Thomas:         Well I wanna ask, though-

Andrew:         Mm-hmm?

Thomas:         -because this is what happened when we talked about the Senate.  Is there some House rule?  Is there some thing they’ve passed in the past that would require this?  Because the Constitution says not much about all this.

Andrew:         That is an awesome, directly appropriate question.  The answer is there is a continually updated document, it is amended every time a new House of Representatives is convened, and it is called The House Practice, a Guide to the Rules, Precedents, and Procedures of the House.  It sets forth exactly how and what investigatory powers House committees have. 

As it turns out, that document expressly permits the House Judiciary and Oversight committees to issue subpoenas and to undertake exactly the actions that they are undertaking right now.

Thomas:         Alright, sounds straightforward.  Case closed?

Andrew:         This is as cased closed-y as it gets. 

Thomas:         [Laughs]  

Andrew:         I’m serious about this, and I wanna add in addition to that there is also a rather lengthy report by the Congressional Research Service that describes how impeachments take place and they note that, correctly so, that [Dog Barks] [Sighs] Yeah, let’s take a puppy commercial.

Thomas:         Yeah, the dog would like to chime in with a commercial break, here we go.

[Commercial – for a special interest rate auto-pay discount]

Andrew:         Alright, so prior to my puppy saying “hey let’s pay some bills around here” I was describing that both the Congressional Research Service report, which I will link in the show notes from 2015 – oh, 2015!  That’s an interesting time period.  That’s a Republican controlled House of Representatives with a Democratic President.

Thomas:         Hmm.

Andrew:         Interesting. 

And the sitting established House Rules note that although a full impeachment inquiry typically begins with a resolution introduced, put into the hopper and voted on by the full House of Representatives, the inquiry does not require such a resolution.  The various House committees retain power to issue subpoenas, conduct investigations, and no full authorizing resolution is required. 

I wanna add to that, as part of this argument of – and, again, we’re going to see – an illustration that we are moving up Yodel Mountain is the continuous moving of the goal posts and the continuing desperation of the arguments on the other side. 

So last week we dispatched with “well, the whistleblower’s complaint is all nonsense because it’s hearsay,” this week we get to dispatch “well, alright, maybe it’s not hearsay, but now it’s not fair because you haven’t had a full vote by the House of Representatives so there’s not an actual impeachment inquiry opened,” and because procedural arguments are kind of dumb arguments anyway – I mean, I shouldn’t say dumb arguments, sometimes procedural protections are important.  They lack the kind of salience with people. 

To say “we think this is false” is a substantive criticism, and, yeah, you shouldn’t go forward with false information against somebody.  Well now you can’t really argue that this is false because the President has reaffirmed it on national television, so now you’re sort of left with “well, it’s procedurally unfair,” and you might ask the question, “well what’s unfair about it?” 

The argument that the White House is circulating and trying to get behind is “well we need a full vote so we know exactly what it is that you’re investigating so that we can call our own witnesses and cross-examine them and confront them and have due process.”  That argument is false.  That argument is based on-

Thomas:         An episode of CSI, or [Laughs]  Law and Order, Special Victims Unit.  This is not a court thingy, this is an impeachment proceeding, right?  You don’t get all the same rules and the same rights that you have in a court of law, is that correct?

Andrew:         That is correct. 

That is 100% clear as a matter of law, and to the extent that there is an analogy to be made the appropriate analogy in this case is to a grand jury proceeding.  Because that’s all an impeachment inquiry is.  An impeachment inquiry is gathering information to make a recommendation about whether the President should be charged with committing high crimes and misdemeanors.  That’s it. 

When the State gathers information about Thomas Smith to decide whether you should be charged with a crime, they don’t have to tell you!

Thomas:         Yeah, they include me every step of the way during the investigation!  “Hey, Thomas, is this okay?  Let’s run this by you if we interview these witnesses.  Do you wanna be here for that?”  No, they wouldn’t do any of that, it’s nonsense.

Andrew:         Yup.  And, again, I’m going to include – these are the most recent House Rules, it is page 324 and I don’t want people to just accept my conclusory analysis of it, I wanna read you what the rules say. 

The rules say, “the House has always examined the charges by its own committee before it has voted to impeach.  This committee has sometimes been a select committee, sometimes a standing committee.  In some instances the committee has made its inquiry ex parte but in the latter practice the sentiment of the committee has been in favor of permitting the accused to explain, present witnesses, cross examine, and be represented by counsel.” 

So if you want to argue that the House should treat you in a particular way, you may make that argument and we can debate it in public, but when Donald Trump and when his clownhorn of a lawyer Pat Cipollone says this is an unconstitutional proceeding and we’re not complying with it, he is flat out lying about the law.  There is no provision in the Constitution that requires it, and I just read you the provision in the House Rules that says, “yeah, look, the committee can be a select committee, it can be a standing committee, it can do it on its own, there is no requirement that they submit to a vote and there’s no requirement they listen to you at all.” 

If Donald Trump were cooperating with the committee in the same way that Bill Clinton cooperated with the committee then I would be totally in favor of establishing as much due process as possible, but the idea that this is a basis for ordering White House staff to refuse to comply with subpoenas, that’s where the next battleground of this is gonna go and you need to know, our listeners need to know, everybody needs to know, that argument is not a legal argument. 

That argument is “I don’t want the House to impeach Donald Trump,” and, fine!  You can have that view if you want, but let’s not pretend that this is an illegal inquiry, it is not.

Thomas:         [Lionel Hutz Impersonation] Case closed!

Andrew:         Case closed!

Thomas:         [Laughs]  Alright, well, we are out of time, but you know what?  I think we can talk about the Open Skies Treaty which is something you wanted to do a little medium dive on, I think that’ll be a good live show topic.

Andrew:         Oooh!

Thomas:         So, speaking of, this is last minute and there are just a couple tickets left, if you wanted to come see us in L.A. – oh, you know what?  There’s something else that I’m gonna tease just for fun, Brian and I – I had an idea and Brian, of course, is the executor of most of my ideas – I had an idea for a very extra special Opening Arguments intro to be played at the Live Show that you are going to not wanna miss!

Andrew:         Oooh!

Thomas:         It is gonna be so funny.  And I think we’ll make it available for patrons, too of course, ‘cuz not everybody can be there – in fact, very few of you can actually be at the show so we’ll make sure the patrons hear it too, but that’s a good reason to be a live show attendee or a patron.  Brian made it and we’ve both been laughing at it ever since.

Andrew:         I haven’t heard it, so I will be surprised.

Thomas:         No, I like to keep things from Andrew so enjoys them in the moment, so make sure that you pay attention when that music kicks in at the live show.  So a couple tickets left and we will do this medium dive on the Open Skies Treaty on Saturday at the Hudson, can’t wait!

Andrew:         Awesome!

Thomas:         Hope to see you there very soon.  Alright, that said, you know what time it is Andrew?  It’s time to thank our new patrons for First Timer Friday, and as we said last week we’re doing this in batches until we catch up, so if you’re a new patron you might not get read today but rest assured everybody will get their name read so long as they are still a patron by the time the show happens, so there we go!

[Patron Shout Outs]

Andrew:         so thanks to all of you for signing up over at  Hopefully you’re enjoying the multiple bonus deep dive episodes, the Q&A, all the great stuff!  Look, we don’t have to say, you’re already patrons so spread the word about how great it is to be a patron because it’s pretty damn great!

Thomas:         Yeah, hell ass yeah! 

Andrew:         [Laughs]  

Thomas:         [Laughs]  Alright, it’s time for T3BE.  I was on a streak and then I ran into a buzz saw that was that last question, that was a tough one.

[Segment Intro]

T3BE – Question

Andrew:         I was gonna say – not me, the bar exam is gonna give you a chance for a little bit of a do-over on that question.  These are the same facts repeated again for a follow-up question.

Thomas:         Ah, shoot!

Andrew:         So, to remind you, bright 12 year old child attended a daycare center after school, center was located near manmade duck pond on the property of a corporation.  During the winter pond was used for ice skating when conditions were suitable.

At a time when the pond was obviously only partially frozen, the child’s sneaked away from the center’s property, walked out onto the ice over the pond, the ice gave way. Child fell in, suffered shock, would have drowned if he had not been rescued.  At the time of the incident the pond was clearly marked by 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 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 corporations property from the daycare center, the jurisdiction follows a rule of pure comparative negligence.  So that’s the facts.

The question; in a suit brought on the child’s behalf against the daycare center and based only on the facts above, who is likely to prevail?  A) the child because he left the center while he was under the center’s care.  B) the child because the daycare center is located near a pond.  C) the daycare center because it was not negligent, or D) the daycare center because the child was trespasser.

Thomas:         [Sighs] You know, here I was in my infinite integrity thinking, is it fair that I would get to answer another question on these facts after hearing the answer to the last one?  I was already crushing myself like that, that seems unfair.  And yet I’m more confused, not less confused.  So, I mean maybe there’s an advantage to hearing the last answer first rather than having to take the whole test at once not knowing the answer to either of them.  But I don’t know, it’s not helping me with this, so [Laughs]  I dunno, we’ll see! 

Okay, well in the last question a bright 12 year old child should have known better, but that was when we were looking at whether or not the 12 year old child could sue the corporation that had put the sign up that said “thin ice keep off,” all that stuff.  “You’re on thin ice, buddy” is what it said, I think, but this is different.  This is the child, a suit on the child’s behalf, so maybe the parents or somebody are suing the daycare center “hey, I put my weirdly old child for daycare in your daycare center and they snuck out and almost died in some cold water.” 

So what do we think?  Okay, A, the child because he left the center while he was under the center’s care.  Now that sounds like the pure, just the pure “are you negligent or not?”  Or, not negligent, are you liable?  That sounds like are you liable or not?  And that’s one of those answers where it’s like, alright, we can negotiate beyond that, but the child was under your care, this happened, you are liable and then we go from there kind of thing, I think I’ve heard you talk about in the past. 

I dunno if that applies here when it says the jurisdiction follows a rule of pure comparative negligence.  Um, so I don’t know.  Do you see why I’m more confused?  I have no idea. 

B, the child because the daycare center is located near a pond.  That [Sighs] if that’s it I quit, because that’s a stupid answer.  Come on!  Because it’s located near a pond?  So it doesn’t matter any of the other facts.  It doesn’t matter if it was like triple-gated, armed guards around the pond, just the fact that it’s near a pond, okay if it’s B I’m quitting the law and I’m officially not gonna become a lawyer.  [Laughs]  So I’m eliminating B. 

C, the daycare center because it was not negligent.  That is a strong contender because the fact pattern seems to be that they weren’t negligent.  They did everything they could, they had a reasonable number of employees, there’s never been another instance of a child sneaking out like that, so that seems like a good answer.  So C is a contender. 

D, the daycare center because the child was trespasser.  That’s interesting.  Interesting.  I don’t think that’s it but I’m trying to think of how that could be it.  So the difference would be like if the child snuck out and just fell into a manhole on the street that would be one thing but since they trespassed and they kinda did something wrong, since the child did something wrong – actually, gosh!

That could be, because when you talk about the jurisdiction follows a rule of pure comparative negligence is there some level – I dunno if negligence would be the right word, but is there some level of liability that the child has because the child trespassed and we already established in the previous question that this bright 12 year old child should have known better.  Hoo!  So I’m going from A or C and D.  I’m trying to eliminate another one. 

A, the child because he left the center while he was under the center’s care.  That’s kind of just the basic… I don’t know that letter A, answer A is it, but it’s also not a firm elimination for me, it seems like a logical answer.  So if the daycare center prevailed would it be because they were not negligent?  Or would it be because of what the child did subsequent to leaving the daycare center and whether or not that was trespassing?  That’s hard. 

This is really hard because I could see a scenario where even if the daycare center was a little negligent and the child snuck out and then the child tries to kill somebody and gets injured in the process of committing some sort of crime should the daycare center really be responsible given that the child was doing something wrong?  I dunno.  Alright, this is a really hard one.  I dunno. 

I’m gonna go ahead and say – I’m gonna try to keep it simple, and it might not pay off this time but in general hopefully the odds pay off.  I’m gonna say C, the daycare center because it was not negligent.  Look, it was doing what it should be doing and, you know, if the child sneaks out and gets into some trouble [Sighs] I dunno.  I’m not confident in this, I think it could be D, I think it also could be A, this is just really hard and knowing the answer to the previous question did not in any way help me.  [Laughs]  So I’m going with C, final answer!

Andrew:         Alright, and if knowing the answer to the previous question didn’t help you either, feel free to play along!  You know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, thanks so much for listening, thanks so much to our patrons, and we will see you for the live shooow in a day or two!  Can’t wait to see you all there, every single one of you are all gonna fit somehow and get over there. 

Andrew:         [Laughs]  

Thomas:         Alright, we’ll see you then!

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