Topics of Discussion:
- Emoluments Update
- No Formal Vote to Start Impeachment Inquiry
- Trump’s 9 Crimes and Misdemeanors
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments, this is episode 324. I’m Thomas, that’s Andrew. How’re you doing, sir?
Andrew: I am doing fantastic, Thomas! Still on that high after our fabulous live show in Los Angeles. How are you, man?
Thomas: Ah, same!
Thomas: The same. That was so much fun! Can’t wait for the next one wherever we do it. [Laughs]
Thomas: We just haven’t heard from any patrons about where we could do our next one, is the problem.
Andrew: Right! [Laughs] Yeah, nobody has any opinions about that.
Thomas: We’re just out here, we’re in the dark here in terms of where we should be next.
Andrew: Pocatello, Idaho.
Thomas: [Laughs] Good times. I tell you what, I’m even more excited by today’s episode because I think at long last we are going to get – at least as of today, now this can only ever be as of the moment we’re recording and you’ll see why, but we’re going to get Andrew’s breakdown, point by point breakdown, of every – I guess, I don’t know if it would be every crime or what, but every way that Trump has committed impeachable offenses, and that’s why [Laughs] there’s a firm date on it, we don’t know the future. This is just as of today. [Laughs] We can only do what we can do, which is the crimes so far, right?
Andrew: [Laughing] Right, and let’s be really clear about that. This is something I’ve been wanting to do since April for reasons that will become very, very clear. Given where the House impeachment inquiry is right now this is actually a really good week not to forget about the Mueller report, so that’s gonna be our main segment. We’re gonna tackle a couple of other things, but that’s really gonna be the meat of the show.
Thomas: I know I had to just cut to the chase.
Thomas: Of course, I wanted to ask Andrew about this Pelosi no formal vote thing, I’m curious if there’s any intricacies we’re missing on that and we’ll also have a little update on the re-hearing en banc of the emoluments case in the 4th Circuit, so there you go, let’s get to it!
Thomas: Alright, so what’s our emoluments update.
Andrew: Super brief update, we talked about how the 4th Circuit reversed the District of Maryland, held that there was no standing for the Maryland D.C. emoluments lawsuits, that’s our buddy Brian Frosh. Those are the lawsuits that allege a competitive harm due to Trump’s violations of the emoluments clause, of the two emoluments clauses, both the domestic and the foreign emoluments clauses.
Andrew: The 4th Circuit just granted a petition by Maryland and D.C. for re-hearing en banc, that will be heard December 12th of this year, so unlikely that at that breakneck pace that this is going to actively influence the ongoing impeachment efforts, but we’ll see. I still think-
Thomas: Forgive me, I can never keep all this straight. Did they say that they wouldn’t have standing? I feel like standing for other companies, competing companies that now there’s an unfair advantage ‘cuz Trump is like “hey everybody use my companies ‘cuz I’m the President and I wanna violate the emoluments clause.” Did some court say that was wrong, that they shouldn’t have standing?
Andrew: So these are not lawsuits brought by private parties, these are lawsuits brought by the State of Maryland and the District of Columbia alleging that the emoluments clause violations are interfering with the regular flow of business in both Maryland and DC, and the 4th Circuit said “look, that’s not really the kind of injury that the emoluments clause was meant to prevent.” We covered it, and it was always an aggressive (how about we put it that way) it was always an aggressive theory.
Andrew: It will go to the full 4th Circuit. I’m not overly surprised by that because, again, this is a really big deal and it is a matter of first impression, so we will report back in December after we know what happens with the full re-hearing en banc by the entire 4th Circuit.
Thomas: Oh, this is why we need you Andrew, because I’m kinda the average listener here and it is so hard to keep my emoluments straight-
Thomas: -and also all the different Trump scandals straight. So I’m like, wait which? Because there’s a couple different ways they’ve gone about emoluments, right?
Andrew: Yup. Yeah, no that’s exactly right.
Andrew: There’s a private parties lawsuit, there is the congressional lawsuit, and there is the States lawsuit. So this one relates to the State of Maryland and the District of Columbia alleging interference with ongoing business activities.
Thomas: Alright, well we’ll keep an eye on it and now it’s time to get to our – we’re only going to have two segments but, but!
Thomas: Segment two is lots of bullet points.
Andrew: Yes it is! [Laughs]
Thomas: So we’ll see how Andrew does.
No Formal Vote to Start Impeachment Inquiry
First segment here, yeah I kinda asked you about this, I don’t know what the answer will be and that’s my favorite thing ‘cuz who knows if it’ll be a counterintuitive take or what, but what’s the deal – just as I was watching the debate last night, got the news alert that Pelosi’s not going to hold a formal vote on impeachment. Now it seems like it’s related to the fact that the absolutely idiotic and bad faith defense of Trump right now is “well you can’t do an impeachment without a formal inquiry vote!” You didn’t fill out the paperwork for this impeachment yet so therefore no crimes. It seems like Pelosi could have just solved that by holding that vote but she has decided not to, do I have that right?
Andrew: You have that exactly right, and let me give you first the legal analysis and then what I suspect may be the political analysis.
So, obviously second half is speculation but I feel like it’s a reasonable hope on the speculation. In terms of whether the Constitution or any past precedent requires – and by precedent I don’t mean conduct, I mean judicially enforceable legal precedent, a prior case, requires Congress to hold a full vote on the floor of the House of Representatives before authorizing an impeachment inquiry.
The answer to that is no, there is no clear requirement. We talked about this last week, the existing Congressional Rules give the Oversight Committee, the Judiciary Committee, the Intelligence Committee, the power, the wide-ranging power to conduct investigations. That has now been declared as an impeachment inquiry, which is, again, consistent with prior precedent from the 19th century.
It is a bit of a departure from the last two cases with Clinton and Nixon. As you point out, it would be very, very easy, there are more than enough Democrats who have said “we would vote yes on there being an impeachment inquiry,” the Democrats have lined up behind this. This is not an example of Nancy Pelosi sparing the House Democrats from a politically unpopular vote.
Thomas: Yeah, I mean that is what I’ve seen some people say and what I was worried about, people speculated “does this mean she actually doesn’t have the votes for the impeachment?”
Andrew: Here’s what I think it means. I think it is a pitch that is aimed at the Supreme Court.
Andrew: Let me tell you why. One of the things that happened in between last Friday’s show and today’s show is – and very publicly – that Donald Trump lost at the D.C. Circuit the day after we predicted that that was gonna happen, in the Trump v. Mazars lawsuit. That was the U.S. District Court for the District of Columbia, Judge Meta’s opinion that was appealed up to the D.C. Circuit, the D.C. Circuit affirmed two-to-one.
The dissent was written by Trump-appointee and Federalist Society darling Neomi Rao. You may remember when we went through the briefs that we were shocked at how much of the briefs seemed to be pitched at Neomi Rao.
Andrew: Because the other two judges are sort of longstanding centrist judges and the arguments were really, really stupid and I was like “uh, why are you trying to win the one judge?” [Laughs] It’s not like when you lose 2-1 that you get a higher seed on remand or something like that.
Andrew: It’s not! Losing 2-1, losing 3-0 is the same thing. Ultimately this case, and Trump v. Mazars is the subpoena to Mazars over Trump’s taxes.
But the issue presented in that case is the issue that Trump and his lawyers, that Patrick Consovoy, that they have teed up everywhere, which is some combination of the President enjoys absolute immunity, which I think the Supreme Court will not endorse, you heard that on the Q&A on Tuesday’s episode and at the live show, and this procedural argument of – and the way the argument was pitched in Trump v. Mazars was the subpoena was issued pursuant to Congress’ investigatory oversight powers, and the idea was Congress needs to consider whether to pass a new law requiring presidential candidates to release their taxes and in order to do that we need to see Donald Trump’s taxes to know just how bad the problem is, which is, again, a perfectly reasonable argument.
Where Congress has power, so long as they have a rational basis for that power courts typically don’t inquire into the motives. The Trump argument that was roundly rejected at the district court level and by the majority on appeal was “oh, no, no, this is really about impeachment and they haven’t had a formal impeachment vote so therefore none of this counts.” In fact, let me read a little bit from Rowe’s dissent, that was her argument in dissent.
She said (quote), “As explained below, allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for treason, bribery, or other high crimes and misdemeanors and has substantial discretion to define and pursue charges of impeachment. While it’s unnecessary to determine the scope of impeachable offenses, Congress has frequently treated violations of the law, statutes of the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.”
Those statements are not supported by any case law. They are made up in the mind of Neomi Rao.
Andrew: There were no case citations to that, there was a little bit of a “See the Federalist No. 65,” but, again, that’s a sternly worded letter.
Andrew: There is no authority for those propositions. What I think is going on is, I think Nancy Pelosi wants a clean record for the Supreme Court. I think she does not wanna have a situation where there is an argument made retroactively about the subpoenas that were issued pursuant to the various House committees after the oversight committee formally voted to launch an impeachment inquiry that would say “oh, yeah, but those were before the full House vote and so therefore they don’t count.”
Andrew: That’s what I think the game is. I
think the pitch is aimed to the Supreme Court of saying – and we’ve talked about this potential double-bind before – okay, if you wanna adopt an argument that is nakedly partisan in support of Donald Trump with zero case citations to back it up, go for it, but we’re not gonna muddy up the record, we’re not gonna make it possible for you to obscure and Bill Barr your way out of this.
You’re either gonna have to bite the bullet and say the President is immune from compulsory process unless there is a full House inquiry, at which point then I will go back and then have a full vote, whatever. Or we’re gonna force you to confront this argument and rule in our favor that this is a valid use of process. By the way, if you’re on the Supreme Court, a Republican isn’t gonna be President forever [Laughing] but your cases will last forever. So that’s what I think the game is right now, I think it is not politically to protect Democrats.
Democrats are associated with impeachment, they’re happy to talk about impeachment, we saw that the first 20 minutes of the debate on Tuesday night.
Thomas: It’s not Pelosi getting cold feet about it or anything.
Andrew: No, no. I don’t-
Thomas: I’m seeing a lot of people talking about that.
Andrew: I don’t think that it is. I think it is – because, again, for whatever Nancy Pelosi is, she’s a smart political operative. Given that everybody has said “well I don’t understand, why don’t you just take the votes?” You have to look and figure out why she didn’t take the vote. It certainly isn’t the polling, polling support for impeachment has followed exactly the Thomas Smith plan. You said maybe if we start talking about it then the popularity will go up!
Andrew: And shockingly we talked about it and the popularity went up, so I don’t think it’s any of that, I don’t view this as a negative development. I think it is trying to have a clean record because otherwise that is sort of a tacit admission in all of these outstanding cases involving subpoenas that okay, well, we went back and we did this to dot the I’s and cross the T’s.
You could make that argument in front of a judge, I certainly have before. I’ve gone back to a judge and said “look, I don’t think we needed to do this, but we filed this out of an abundance of caution but you shouldn’t interpret that as saying we thought we’d done something wrong before.”
But I think what she didn’t wanna do is derail the existing cases, I think she wants to have a clean record for it. So that’s my view on that!
Thomas: Wow! Alright, well I’m glad I asked because I don’t see anybody talking about it from that angle.
Thomas: Well, there you have it!
Thomas: Now that we’ve hopefully established that Pelosi is not afraid of impeachment, let’s get to our main segment and talk about all this. We’re already on the last segment, that’s how you know it’s gonna be a doozy.
Thomas: We don’t even get to take an ad break yet, it’s too early!
Trump’s 9 Crimes and Misdemeanors
Thomas: Let’s go right into our main segment on all the ways, so far! [Laughing] That Trump should be impeached. And, actually, sorry, is this mainly the Mueller report or even up and to the Ukraine stuff?
Andrew: Yeah, no this is just the Mueller report. This is the pre-Ukraine stuff.
Thomas: Oh, okay.
Andrew: Because, like I said, I think the Ukraine stuff is proceeding apace and I don’t want us to lose sight of how well Robert Mueller laid out Donald Trump’s criminality in volume II of the Mueller Report. So I’ve gone back, and this is kind of your guide to – now what I want you to do is I want you to talk to the Uncle Franks in your life. The people who believe Fox News, but you can talk to them, you can sit them down with a document. I am going to give you page numbers, chapter and verse, and I want you to walk them through the Mueller Report with us. If they can read they will come away convinced that the President has broken the law.
Andrew: That’s the goal here.
Thomas: Well first step, do people remember who Mueller is?
Thomas: I dunno, it’s been [Laughs] in Trump-terms it’s a whole new era. Somehow that was all anything was about and then Bill Barr kind of fudged the summary and the hearings didn’t – Mueller didn’t do cartwheels and scream that the President should be impeached so everyone’s like “well that’s not what I wanted” and then we just forgot about it.
Andrew: [Laughs] You know, when I was preparing for this show I went back – so we’ve talked about that, we talked about how Mueller was a terrible witness. We talked about how he felt constrained by the DOJ Office of Legal Counsel memoranda that said he could not render a judgment on whether to indict the President or not, so therefore – some people, for example, have taken the only good answer he gave in the first half was to Ted Lieu who said “alright but if there wasn’t that OLC memoranda you would’ve indicted the President, right?” and he said “yeah.” [Laughs]
Thomas: And then he changed his mind! Yeah, yeah.
Andrew: Then came back out and said “well look, what I meant by that was then yes if there had been no-
Thomas: We would’ve decided to decide whether we-
Andrew: Yeah. Exactly.
Thomas: Come on.
Andrew: And that got some play in Fox News circles as, you know, some spin. So there’s all of that, there’s also the fact that the Mueller report is written by a lawyer to lawyers, so when I went back thinking about how I was going to Opening Arguments it up I realized it’s pretty easy to get lost.
Andrew: So what I’m gonna do is I’m gonna jump around a little bit, because I don’t think the Mueller report is really written narratively in a way that punches you. Unless you’re a lawyer!
Andrew: Which was my initial reaction! So, for those of you who are not, I think we should revisit. I think we should revisit because, as we talked about on the very first impeachment episode, this story fits in with the Ukrainian whistleblower story. This is an easy, one line sentence which is “the cover up is worse than the crime.” That’s all volume II is about.
Volume II is about once various investigatory procedures were underway there is overwhelming evidence that Donald Trump tried to interfere in those investigations in a way that is criminal. So that’s what I want to do. By the way, I want you to put a pin in this one.
On my third close reading of these 240 pages I am more convinced than ever that Bob Mueller thought – if we could hook him up to an actual polygraph machine that worked and was not nonsense – he thought that the immediate result of his report being released would be a vote within a couple of weeks at most in the House to impeach the President. I believe that.
Thomas: I’ll betcha that’s right.
Andrew: Yeah. Put a pin in that, I’ll explain why when we get there.
Thomas: His brain is just in a different era, I think.
Andrew: Yes, yes! I think that is right. He gives us some clues, so ready to tackle into the text?
Thomas: Alright! Let’s go! Let’s start, let’s yodel!
Andrew: I agree!
Thomas: Alright, now that we’ve done some mandatory yodeling, ‘cuz if this isn’t a yodel I don’t know what is!
Thomas: Well, take us through it! Let’s get started!
Andrew: Okay, I want you to start on page 2. These are the decisions that guided Mueller during his investigation. Again, a lot of these have been quoted already, but the paragraphs that are numbered with italics Third and Fourth on page 2 explain how Mueller felt constrained during his investigation.
Third says “we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”
I haven’t seen that statement quoted anywhere else.
Andrew: But there is Mueller telling you “our investigation was designed not to give you a conclusion.”
Thomas: That doesn’t – what in the world?
Andrew: Yup! We want to lay out the facts in order for the House of Representatives to make a conclusion, but we did not want to make a conclusion. We did not want an approach that could potentially result in a judgment. So remember, as you’re going through this-
Thomas: Oh my god.
Andrew: -as we see the strength of the language, remember that that’s against a background of a guy who said “I don’t wanna make any judgments. That’s the first thing to keep in mind.
The Fourth paragraph says that, “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards … we are unable to reach that judgment.”
Andrew: So again, remember, this is a one-way process. If it exonerated the President they would have said “this exonerates the President.” If it would result in saying “we would indict the President they would say “well, we’re throwing up our hands.
Thomas: Yeah, it’s Heads I win, Tails you lose, I guess.
Thomas: For the President.
Andrew: That is right! And despite that, he still manages to lose! [Laughs]
Andrew: So that’s a pretty strong indication of criminal – so okay, keep that just in the back of your mind as how this volume got written.
Thomas: I’m sorry, I’ve said it before, but can we just for a second contrast that with Ken Starr?
Thomas: It was pretty much the opposite, like, I’m going to investigate for years and years and years and end up somewhere where I didn’t even start, I’m just in general gonna do whatever I can to find where the Clinton’s might have done something wrong. I’ll do that for years and years and years and then I’m gonna write the most scathing attention-grabbing report that I possibly can to try to get the President impeached. The difference is just staggering. It’s so frustrating that we play by two different sets of rules!
Thomas: The Democrats get one set of rules and then Republicans get to be investigated by Republicans, Bob Mueller is a Republican, and they get to be investigated by a guy who’s going to dance around it as much as possible and be as careful as possible to do nothing that might maybe tell us Trump is the most corrupt President in history. [Angry] Ugh! Sorry the unfairness just really nags at me!
Andrew: I’m with you.
Thomas: Gotta get that out.
Andrew: Good clearing the air. So now what we do is we jump to page 9, which is the legal standard for each of the 10 crimes that are going to be discussed at length.
Andrew: Ten, yes.
The legal standard for all of these are – all of these crimes are obstruction of justice. There are several different statutes, but one of the things Mueller does really well here is say there are three basic elements that are common to the relevant obstruction statutes. Again, I’m reading from page 9. “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”
Now, the act, you have to do a thing. And the corrupt intent, you have to do so in order to undermine the legal proceeding. Those are pretty straightforward.
The idea of this nexus is, and again, here I’m just gonna quote from Mueller. To establish a nexus it would be necessary to show that the President’s actions would have the natural tendency to effect a proceeding, or that they would hinder, delay, or prevent the communication of information to investigator.
Okay, so that tells us our standard. In order to prove that somebody has obstructed justice you have to prove that there is an official proceeding in which they meddled for a bad reason.
Andrew: So, now-
Thomas: Sorry, just spit balling, would going on TV and saying “I fired this guy because of the Russia thing,” seems like case closed, Mueller report closed, we’re done.
Andrew: You might think so! Let’s get there.
Andrew: But now what we’re gonna do is we’re gonna jump from page 9 to page 156. By the way, if you’re playing along with the home game, every time I give you a number here if you are using the link from the show notes that has both volumes of the Mueller report add 212 to get to that page. So in other words, these are the pages of volume II, there’s 211 pages of volume I.
Thomas: This is interesting, it’s like the choose your own adventure.
Thomas: Now we’re going to find out what happens to us on page 170 whatever you said.
Andrew: That’s exactly right! We’re going to page 156. This is after a discussion of all ten crimes. This is the overall conclusion. Mueller says, “First, the conduct” (that we just talked about) “involved actions by the President.” Again, I’m reading this word-for-word. “Some of the conduct did not implicate the President’s constitutional authority and raises garden-variety obstruction-of-justice issues.”
Andrew: Yeah, let me take a side bar on that. What this is doing is-
Thomas: Like obstruction that you or I would do-
Thomas: -on any given day.
Thomas: Just the obstruction of justice we all do.
Andrew: Yes, and what this is doing is this is responding to the 2017 unsolicited Barr memo that he sent.
Andrew: That firing a subordinate officer or offering a pardon can’t be obstruction because those are powers of the President, and so-
Thomas: Oh right. Which is BS anyway, we already know that’s BS.
Andrew: We know that’s BS, but notice here with this first sentence, even if that argument were true, some of the conduct that President Trump engaged in is just garden-variety obstruction!
Andrew: Even if you accept Barr’s argument, some of the things, like encouraging witnesses to lie or to create false records, those are things you or I could do!
You or I can’t fire the Director of the FBI, but we can pull aside somebody who is about to testify and tell them “hey, you know, if you wanna ex-nay on the ime-cray,” that’s just garden-variety obstruction of justice. And also, by the way, not only do we know that the 2017 Barr memo argument is nonsense, but so does Bob Mueller.
If we jump ahead – so do this like a choose your own adventure! Keep one finger on 156.
Thomas: Okay, yup.
Andrew: Jump ahead to 178.
Again, I’m gonna read the sentence word for word. “We were not persuaded by the argument that the President has blanket constitutional immunity to engage in the acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.” (End of quote).
Thomas: So this was, like, the sentence said “you see a walrus wearing glasses making a terrible legal argument.”
Thomas: “Do you pursue them?”
Thomas: And then we’re like “yes.” If so, turn to this page.
Andrew: Turn to page 178, that’s exactly right!
Andrew: And that’s exactly what they say. Yeah, the argument that the President can’t obstruct justice by doing things that he could otherwise reasonably do is just nonsense.
So go back to 156 and they put it into context. They say “A factual analysis of that conduct would have to take into account both that the President’s acts were facially lawful” right, okay, that is offering a pardon to somebody just like offering to appoint somebody to the Senate for Rod Blagojevich, that’s a facially lawful thing to do.
Andrew: But, or I should say, let me again read the text word for word. “[A]nd that his position as head of the Executive Branch provides him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.”
So, in other words, you have to balance out the fact that, yes, some things are legal for the President to do but also the fact that there are things that are legal for the President to do means that he has enormous leverage over just about everybody with whom he comes into contact with. That’s the first top level finding after talking about all of his conduct.
Second. This was the part that Bill Barr in 2019 lied about. So I’m gonna read the part that he quoted in his (quote) “summary memo.” “The evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” That’s the part Bill Barr quoted. “But [Laughs] the evidence does point to a range of other possible personal motives animating the President’s conduct.”
So what does that section mean? It means that we don’t have direct evidence that Donald Trump was, you know, Yuri from No Way Out, that he was a deep cover Manchurian candidate Russian operative. But what do we have? We have a but!
Andrew: Let’s go back to Mueller.
“These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events – such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians – could be seen as criminal activity by the President, his campaign, or his family.” So the way we prosecute these cases is to look at the overall pattern of conduct as a whole.
This is now onto page 157. “Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations … These … ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; the attempted use of the official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance.
For example, the President’s direction to McGahn to have the Special Counsel removed was followed almost immediately by his direction to [Corey] Lewandowski to tell the Attorney General to limit the scope of the Russia investigation to prospective election-interference only – a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.”
Andrew: So put all of that together. The most critical part was the part that I slowed down for, which is yeah, Presidents have official duties, but when they undertake their official duties in such a way as to interfere with a law enforcement investigation to benefit yourself, your campaign, or your family by exerting undue influence over that investigation, that’s a crime.
That is said black and white on page 157.
Thomas: Duh! We all should know that! [Laughs]
Andrew: Yup! Now, remember the pin I told you to put in?
Andrew: Actually, hey why don’t we –
Thomas: I stuck it right in my arm!
Thomas: Oh, no! [Laughs]
Andrew: Why don’t we take an ad break and then I’ll pull it out.
Thomas: Good idea! Everybody hold that pin and we’ll take a break!
[Commercial – kettlebellkitchen.com, promo code “arguments” for $25 off each of your first two orders]
Thomas: Alright, Andrew, I’m about to pull this pin. Should I pull it?
Andrew: Yeah! Go for it. Jump on the grenade!
Thomas: I’m pulling it! Alright, what page do we go to? [Laughs]
Andrew: Alright, we’re gonna go back to page 178 now.
This just jumped out at me. This is, like I said, a little bit of a side bar, but it’s how we know that Robert Mueller thought that Congress would immediately impeach upon receipt of this report. There’s a section that begins on page 178, begins at number 3 because, again, written by a lawyer and not by somebody trying to tell a good story, that says “Ascertaining Whether the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties.”
Andrew: Now, what does that mean? That means it is perfectly reasonable for a law enforcement official to determine whether the President violated the laws preventing you from obstructing justice. Doing so, (quote) “would not chill the performance of his Article II duties.”
In other words, he could still be the President and still do President stuff and you could still figure all that out. Now remember, we started on page 2. Robert Mueller explicitly said “I’m not ascertaining whether the President violated any obstruction statutes.” So if Robert Mueller isn’t doing it, and if this section is about the performance of Article II duties while in office, so this is not about future prosecutors doing it, what does that leave? That leaves only the House of Representatives beginning an impeachment inquiry to figure out whether the President obstructed justice.
Here’s what Mueller says, by the way. He says, “Applying the obstruction statutes to the President’s official conduct would involve determining as a factual matter whether he engaged in an obstructive act, whether that had a nexus to official proceedings, and whether he was motivated by corrupt intent. Applying those standards to the President’s official conduct should not hinder his ability to perform his Article II duties.”
Then he goes on to explain why, he says we’ve got safeguards in place because we have settled legal standards. We have the presumption of regularity in prosecutorial actions, we have evidentiary limitations on probing the President’s motive. So he says that historical experience, then, just confirms (quote) that “no impermissible chill should exist.”
So here’s how Mueller thinks that that would play out. He says “Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding that directly and adversely affected the President’s financial interests for the purpose of protecting those interests.”
So, in other words all of those are, again, garden variety bad faith motives for obstructing justice. There’s no problem adjudging that on the basis of the President.
Here’s where he says the President deserves the benefit of the doubt. He says, “In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt … For instance, the President’s decision to curtail a law-enforcement investigation to avoid international friction would not implicate the obstruction-of-justice statute.”
Thomas: [Sighs] What?
Andrew: Yeah, that’s a little bit of a weird standard. I’m gonna explain how – now we gotta turn back 90 pages to figure out what the hell he means!
Andrew: But here’s what he means.
This is, of the ten instances of obstruction of justice, this is the only one where Mueller clearly comes out and says “this is probably not enough.” This is Trump’s efforts to hide the June 9, 2016 Trump tower meeting between Trump Jr. and his senior staff and the Russians.
Now this may seem weird because this is, the details as this came out in the Mueller report were some of the salacious and bombshell level details when they came out. But here’s what Muller says – and this is page 98, by the way.
So we’ve turned back to 98 because we went back in the cave. “By June 2017, the President became aware of emails setting up the June 9, 2016 meeting between … campaign officials and Russians who offered derogatory information on Hillary Clinton as part of Russia and its government’s support of Mr. Trump. On multiple occasions in 2017, the President directed aides not to publicly disclose those emails and he then dictated a” and I’m gonna add in this is the only word that is not directly in this sentence, but it’s in the next paragraph. He dictated a false “statement about that meeting to be issued by Donald Trump Jr. in describing the meeting as about adoption” in Russia.
Thomas: Yeah, remember that, everybody?
Andrew: Yeah. Those were gigantic clownhorning lies! And immediately afterwards, Sarah Huckabee Sanders told the media that the President (quote) “certainly didn’t dictate” (end quote), that’s her words, the statement but that he [Sarcastically] weighed in, offered suggestions, like any father would do. God, I hate Sarah Huckabee Sanders!
Andrew: Anyway. But “several months later, the President’s personal counsel stated in a private communication to the Special Counsel’s office that (quote) ‘the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.’”
Andrew: So, alright, okay maybe that information was unreliable. Oh, but wait, it’s Trump so of course he [Laughing] tweeted about it as well! [Laughs]
Andrew: The President later told the press, (quote) “that it was irrelevant whether he dictated the statement and said, ‘It’s a statement to the New York Times. [Impersonation] That’s not a statement to a high tribunal of judges.’”
Alright, so that’s what happened with Trump Tower. You have an illegal meeting, you have the President trying to spin it, you have the President dictating a statement that is 100% a lie for his son, Donald Trump Jr., then lying about whether he dictated that statement, then later recanting and being like “yeah, but it doesn’t matter.”
That’s all super, duper bad, right?
Thomas: Uh, yes.
Andrew: Yes. Here’s – this is the best case scenario. This is why I went through this one first.
This is the best case scenario for Trump. Mueller says, this is page 106, evidence does not establish that the President took steps to prevent the emails or other information from coming out in connection with the Special Counsel’s investigation. Rather, the steps that he took were in the context of developing a press strategy, and however scumbaggy that is that’s not depriving Congress or the Special Counsel of the emails, it’s depriving the public and that’s not a sufficient nexus.
That is not a sufficient demonstration of specific intent. That’s why I wanted to start with this one. So let’s summarize and go back because it’s all downhill for Trump from here. The best case scenario is, okay, the President had his campaign team conduct an illegal meeting with the Russians, he lied about it, he lied about lying about it, he tried to keep that information from the public, but in trying to keep the information from the public he wasn’t trying to interfere with the Special Counsel’s investigation, he was just trying to lie to the American public, and that’s super, duper bad but it’s not a crime bad. That’s the best.
Thomas: Okay, I get that you’re establishing that’s the best for him. Question, kind of outside of this I guess. Do you think that that’s still an impeachable thing?
Thomas: Or is that just garden-variety lying to the – because I mean, let’s be real, we’re not going to make it such that any lie to the public is impeachable for the President, then just every President will have to be impeached.
Andrew: Yes. [Laughs]
Thomas: Because eventually… But do you think this rises beyond just a normal everyday misleading the public on something as President?
Andrew: So to me the reason that this rises above everyday lying to the public is that the underlying thing that he’s lying about is also a thing that only benefits Trump and his inner circle of cronies and has no conceivable public justification.
Thomas: Oh, I see.
Andrew: So look, suppose – let me concoct an argument for Donald Trump. This is a terrible, terrible argument, but suppose it were true that Donald Trump had pulled Don McGahn into the White House, into the Oval Office at this time, and said “hey look, we gotta stop these emails from coming out because I’m just about to announce new tariffs on Ukrainian steel and if it looks like I’m a Russian stooge then everybody’s gonna question my motives for those tariffs and we really need those to protect the American economy.”
Now that would be incredibly stupid and false, all of that would be terrible, but I would be on Trump’s side on that one. I would say however bad it is, we do not want the courts to inquire into how a President is legitimately doing their job. The answer to “Do we have a President who slaps tariffs on someone to distract from the fact that he’s a Russia”- well, vote! Don’t vote for Trump in the future.
To me that is clearly a separation of powers nonjusticiable question. But there isn’t even that here! [Laughs] There is “I’m trying to hide an illegal meeting between my campaign staff and Russia so that I can get re-elected again.” So I certainly-
Thomas: So, we’ve gone to the top. This is the best case for him and you still have made a good case that it’s impeachable.
Thomas: But let’s tumble downhill.
Andrew: Let’s go to all the others, alright. There are nine, and now we get to go back to page 46 for these. Okay?
Andrew: Crime number one begins on page 46 because they’re in chronological order. That is, pressuring then-FBI director James Comey over Michael Flynn. Again, I’m gonna do these elements out of order because I want to tell the story more than I want to write a legal brief.
Let’s start off with is there an official proceeding and is there a nexus? Yes. Michael Flynn committed a crime. He lied to the FBI about Sergai Kislyak. That’s the Russian ambassador whom he met in secret to discuss lifting sanctions on Russia. So Flynn was being investigated by the FBI at this time.
What was the obstructive act? This is page 45, again I’m reading here from the report. That is trying to get the head of the FBI to drop the investigation. Donald Trump literally cleared the room to talk to James Comey in private, demanded his loyalty and said “I hope you can see clear to letting Flynn go.”
Thomas: Yeah, I remember that!
Andrew: Yup, because Mueller isn’t a disingenuous idiot, Mueller writes it this way. [Laughs] This is typical understating, again I’m quoting directly from page 45. “[B]ecause the President is the head of the Executive Branch, when he says that he ‘hopes’ a subordinate will do something, it is reasonable to expect that the subordinate will do what the President wants.
Indeed, the President repeated a version of ‘let this go’ three times, and Comey testified that he understood the President’s statements as a directive, which is corroborated by the way Comey reacted at the time.” So that’s the obstructive act.
Part three, is there criminal intent? Here Robert Mueller says “yeah!” The criminal intent is evidenced by the fact that there were multiple one-on-one meeting in which Donald Trump kicked the Attorney General out of the room against the advice of his top aides including White House counsel Don McGahn. Trump later denied that he cleared the room!
This is, again, a direct quote, and asked Comey to let Flynn go, “a denial,” Mueller writes, “that would have been unnecessary if he” (President Trump) “believed his request was a proper exercise of prosecutorial discretion.” (End of quote).
Andrew: The President then tried to have Deputy National Security Advisor K.T. McFarland write an internal email denying that the President had directed Flynn to discuss sanctions with Kislyak.
Andrew: Mueller notes that that (quote), “highlights the President’s concern about being associated with Flynn’s conduct” and that this request (quote), “was sufficiently irregular that McFarland” who, by the way, refused to do that, felt the need to draft an internal memo documenting the fact that she was asked to do that. So that’s-
Thomas: So it’s almost like this whole time when these people have been lying and lying and covering stuff up and lying and all that and then in the end are like “well we didn’t do anything wrong.”
Thomas: It’s almost like that’s, uh, maybe nonsense.
Andrew: Yeah! Total nonsense. So there you have it, right there. Okay, well, maybe you’re not convinced on just Comey and the Flynn thing because that was so long ago. But there, by the way, are all three elements of the crime, I read it to you from pages 45-46. Let’s go to crime number two, shall we?
Thomas: Crime number two!
Andrew: Tried to prevent Jeff Sessions from recusing himself at the start of the Russia investigation. This is page 60.
So, the nexus. On March 20, 2017, James Comey announced that the FBI was investigating Russian interference in the 2016 Presidential election. The obstructive act, after that Trump (quote) “repeatedly reached out to intelligence agency leaders to discuss the FBI’s investigation,” including Director of National Intelligence Dan Coats, who then (quote) “recalled that President asked that Coats state publicly that no link existed between the President and Russia.” (End of quote). Coats declined to say that because [Teeth clenched] of course links existed between the President and Russia!
Criminal intent, this is page 61, “The evidence shows that the President was focused on the Russia investigation’s implications for his presidency and specifically on dispelling any suggestion that he was under investigation or had links to Russia. In early March, the President attempted to prevent Session’s recusal, even after being told that Sessions was following Department of Justice conflict-of-interest rules.” (End of Quote).
So, again, contrast that with where we gave him the mulligan. We gave him the mulligan on the Trump Tower meeting because maybe he was just trying to mislead the American public. This is not an example of that. This is an example because Donald Trump, the evidence demonstrates, was focused on the Russia investigation’s implications for his presidency and therefore attempted to circumvent DOJ rules and prevent Jeff Sessions from following the law.
[Laughing] We’ve said it on the podcast before, we’ll say it again. Thank god for Jefferson Beauregard Sessions the III’s sense of ethics! That’s crime number two, all three elements met. Are you convinced yet?
Thomas: We’re only on crime number two!
Thomas: Can’t wait to get through nine? Ten? What did you say?
Andrew: Nine here, because the tenth was we gave him the pass.
Andrew: He gets one!
Thomas: So right now he’s 1-2, he’s batting a respectable 333 in terms of crime?
Andrew: Yeah, let’s bring him down to 250.
Thomas: In terms of not-criming.
Thomas: So his not-criming rate batting average, 333! So, pretty good, let’s see how he does in the remainder of the season! Crime season.
Andrew: Yeah! Next up in the crime season, page 75, firing James Comey.
So what’s the nexus? Those are the last two that we just talked about. Comey said there was a Russia investigation and Flynn was still under criminal investigation.
What was the obstructive act? Page 74, I’m gonna quote it directly. “firing Comey would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation.” (End of quote).
Now here, in the interest of fairness, there is some competing evidence. The competing evidence is Trump allowed Andrew McCabe to serve as interim director before firing him, of course. And Steve Bannon told Donald Trump, “hey, you can fire the director but you can’t fire the FBI.” Robert Mueller looks at that, that’s sort of a version of the too stupid to crime argument that gets Don Trump Jr. off the hook for conspiring with the Russians.
In other words, if you fire the FBI director because you’re mad but you know that the FBI investigation will still go on even after you fire him then maybe that’s not enough to prove obstruction of justice? That’s how far we’re bending over backwards, by the way, to defend Trump.
Andrew: Now, do those obstructive acts constitute – is there criminal intent behind those obstructive acts? Again, Mueller says yes.
“Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement.”
The President’s other stated rationales for why he fired Comey are not supported by the evidence. For example, the President’s draft termination letter stated that morale at the FBI was at an all-time low and Sarah Huckabee Sanders told the press after Comey’s termination that the White House had heard from (quote) “countless” FBI agents who had lost confidence in Comey.
Andrew: And then, with typical Muellerism, he writes “But the evidence does not support those claims.”
Andrew: This is how you demonstrate corrupt intent in any case. You show that somebody says one thing but does a different thing, because if the thing that you said publicly was a thing that you believed you would probably do that thing and the fact that you lied about it lets a jury infer that you have the requisite criminal intent. Remember, that’s what all of this is.
When we talk about pre-judging the President’s intent, we’re not talking about “can you convince every single person as a prosecutor beyond a reasonable doubt?” No, we’re talking about is there sufficient evidence to go to the jury to say, look, should a jury be allowed to infer that this is corrupt intent? And I think this clearly meets that standard. Alright, that’s crime number three! Crime number four are Trump’s efforts to remove the Special Counsel. This is beginning at page 87.
So the nexus is on page 89, Special Counsel began investigating the President as early as June 2017. When we say “Special Counsel” we mean Mueller’s office. “Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.” (End of quote). Again, we don’t have time to get into it, that’s another important line.
It shows that Trump could be indicted when he leaves office as well. I should also add, and again, we don’t have time for this either, that the report talks about how at this moment is where Trump’s motives really shifted into high gear, when the walls were closing in around him, and instead of it just being like “oh there’s gonna be this investigation and maybe I’ll look bad,” instead it was “no, no, we’re investigating your conduct itself, Mr. President.” Robert Mueller details at great length how Trump’s actions became more frenetic after that point. We don’t even have time to get to that! [Laughs] So there is a proceeding.
Was there an obstructive act? Yes. The obstructive act was Donald Trump tried in multiple ways to get Robert Mueller fired. “Substantial evidence,” this is page 88, “Substantial evidence supports the conclusion that the President in fact directed Don McGahn to call Rod Rosenstein to have the Special Counsel removed.
McGahn’s clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that (quote) ‘Mueller has to go.’ (End quote). McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House. McGahn spoke with the President twice and understood the President’s directive the same way both times, making it unlikely that he misheard or misinterpreted … In response to that request, Don McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre.”
We did it on this show, as well. “He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff, told (chief of staff Reince Priebus that the President had asked him,” and Brian, you can keep the clownhorn in on this one, “had asked him to ‘do crazy shit’ (end quote) and informed Priebus and Bannon that he was leaving.” Then, again, Mueller’s typical understatement, “Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice” (end of quote). So that, I think, overlaps rather nicely with the criminal intent.
Again, Mueller says “Substantial evidence indicates” this is page 89-90, “that the President’s attempt to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct.” The President called McGahn “after McGahn specifically had told him he could not be involved in pressing conflicts claims and that the President should consult with this personal counsel” instead, but the President did not do that. He “sought to use his official powers to remove the Special Counsel. And after the media reported on” it, Trump “denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story… Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”
I don’t even know what you could say to argue against that. If you or I had engaged in that conduct we would be under arrest at the moment.
Thomas: I think you’d just say [Impersonation] no collusion! No obstruction!
Andrew: [Laughs] Right. Since, I’m not surprised, we’re running late, I’m gonna summarize the next – that’s just the first four crimes! I’m gonna point you to the pages, the next five.
Efforts to have Jeff Sessions curtail the investigation once it was underway – and here, gosh you might even have forgotten this. I sort of forgot it a little bit. After June, after the Mueller investigation was publicly evaluating the President’s own actions, Donald Trump tried to get Jeff Sessions to send a directive to Rod Rosenstein that the Mueller investigation could only look at future interference-
Thomas: [Chuckles] Oh yeah.
Andrew: -between Russia and the United States and not back, not at the 2016 interference.
Thomas: Totally normal, totally non-criminal behavior?
Andrew: Yeah. Mueller says – so the nexus and the obstructive pretty clear.
The intent: “The sequence of those events raises an inference that after seeking to terminate the Special Counsel” which we just talked about, “the President sought to exclude his and his campaign’s conduct from the investigation’s scope.” Then he talked about the manner in which the President tried to do this, this is all pages 97-98.
He met with Corey Lewandowski, again, alone in the White House. Somebody who is no longer a White House employee. He did not contact the acting Attorney General. Just very, very clear. On July 22, 2017 the President directed Reince Priebus to obtain Sessions’ resignation. That’s the blank resignation that then he made good on. “That evidence” again, with Mueller’s understatement, “could raise an inference that the President wanted Sessions to realize that his job might be on the line as he evaluated whether to comply with the President’s direction that Sessions publicly announce that, notwithstanding his recusal, he was going to confine the Special Counsel’s investigation to future interference.” So, that’s crime number 5.
Crime number 6, this is page 112, and again obviously I’m directing you to particular top lines, this was – boy, I forgot this. This was the effort to get Sessions to un-recuse himself again and investigate Hillary Clinton instead! I’m not even gonna read it, it’s just ridiculous. And that’s page 112.
Andrew: Crime number seven, page 119, Trump ordered McGahn to deny that he’d been told to fire Mueller. [Laughing] So here’s how this one came out! On January 25, 2018 there was a Maggy Haberman / Michael Schmidt article that was published in the New York Times that said “Trump ordered Mueller fired but backed off when White House counsel threatened to quit.” Once that came out Trump tried to get Don McGahn to write a memo to deny that Trump ever told him to fire Mueller.
You might say okay, how is responding to a New York Times article obstruction of justice? Well, by January 2018 the Special Counsel had already returned several indictments. Mueller notes, “If the President were focused solely on a press strategy in seeking to have McGahn refute the New York Times article, a nexus to a proceeding or to further investigative interviews would not be shown. But the President’s effort to have McGahn write a letter (quote) ‘for our records’ (end quote) approximately ten days after the story had come out – well past the typical time to issue a correction for a news story – indicates the President was not focused on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it.”
I find that unbelievably persuasive. This administration, we know, of all the things that they do incompetently, what they do competently is respond immediately to press reports. By time. I’m not saying that their responses are competent.
Andrew: I’m saying that their timing is, and the fact that – the clear inference if you’re on a jury is the New York Times article came out, the President said “Oh holy clownhorn I’m in trouble! Alright, time to create some fake records to disprove this when they come looking for me.” That is, in fact, what Mueller says. Page 118-120. The last two crimes, bet you thought we’d never get here!
Andrew: Are witness tampering. Again, this is another area I think really illustrates just how far Mueller bent over backwards. So the first section, this begins at page 131, deals with Michael Flynn, with Paul Manafort, and with Redacted, who is almost certainly Roger Stone.
Andrew: But again, it’s redacted because of ongoing matters, so we don’t know – all the stuff on Stone is redacted so we don’t know if he tried to tamper with Stone. Mueller concludes we don’t know enough about Flynn because so much of it is covered by attorney-client privilege.
Thomas: Can I just stop, though. Why would he need to meddle with Stone? Isn’t Roger Stone pretty dyed in the wool Trump gonna do whatever? Or is it just the fact that he’s telling him “here’s how you best not implicate me in your testimony” or something?
Andrew: Yeah, that’s exactly right and these – the witness tampering, the obstructive act here is dangling a pardon, both directly and indirectly, in exchange for saying “hey, you better not flip.”
You might be sitting there thinking, okay, as is always the case with Donald Trump, here, let’s quote this directly from page 131. “The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not (quote) want Manafort to ‘flip’ and cooperate with the government.” [Laughs] (End of quote). Yeah, that’s garden-variety, textbook obstruction of justice. The government has a cooperating witness and you’re like “hey man, Johnny Tightlips better not” – are you kidding me?
And, again, the intent is shown on page 133. “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort not to cooperate with the government.” “Some evidence supports a conclusion that the President intended … to influence the jury.”
I can’t even get into – there’s two pages of how the President also tried to tamper with the jury pool. If you recall, Manafort’s first jury trial the jury hung on 10 of the 18 counts, so, you know, it might have worked. Finally, the last criminal act, witness tampering with Michael Cohen.
Super easy nexus, this is page 154, not only was the Special Counsel’s Office, but Congress and the Southern District of New York were all publicly investigating Michael Cohen. It may be hard to remember now after the President has thrown him under the bus, but at the beginning, (quote) “Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not flip.” Again [Sighs] yeah…
Andrew: Right?! That’s the thing that you say when you’re the bad guy!
Thomas: When you’re not a criminal, if I’m just going around not being a criminal, and police knock on Andrew Torrez’ door or something, and they’re like “we need to ask you about Thomas Smith over there,” and I’m just not a criminal, I’d be like “woah! Wow, let me know what that’s about, but yeah, okay, talk to the police.” You know? You better not flip on me Andrew.
Thomas: Said no non-criminal ever. What are you flipping about? What’s the flipping?
Andrew: Yup. Now here, this is Cohen’s testimony, so I’m sure your Uncle Frank will disbelieve it, but of course the President’s about to corroborate it. Cohen’s testimony is that the President’s personal counsel told him, quote “he would be protected so long as he did not go rogue,” and “Cohen recalled discussing the possibility of a pardon with the President’s personal counsel, who told him (quote) “to stay on message and everything would be fine.” (End of quote). Now. You’re thinking if you’re Uncle Frank, yeah, but Michael Cohen, he’s a dirty scumbag lawyer.
But, “The President indicated in his public statements that a pardon had not been ruled out” for Cohen and also stated publicly that (quote) “most people will flip if the Government lets them out of trouble but that he didn’t see Michael doing that.” (End of quote). [Laughs] That’s page 154, Uncle Frank.
So now, is this corrupt intent? Some of this obviously is political, but again – again I’m just gonna read from page 155. “There is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.”
That is, I think, a fitting place to end this podcast where for so many of our listeners it began, with Stormy Daniels.
Andrew: So there you have it, that is our trip, choose-your-own-adventure through the Mueller report, that is way more damning than you probably remembered! I do not see how-
Thomas: This really could have been, the whole thing could have been a yodel mountain remembers, really.
Andrew: Yeah, yeah! It absolutely could.
Thomas: Remember a time when all these crimes were given to us in report form that almost nobody read except for Elizabeth Warren?
Thomas: Who then immediately said “oh, wow, let’s impeach him.”
Andrew: Yeah, that is exactly right. So, look, if you have Uncle Franks who are willing to sit down and read the actual Mueller report, you can walk them through.
Thomas: That’s nobody.
Thomas: Write in if a single person tries this.
Andrew: Please do, please do try!
Thomas: I’m curious.
Andrew: Look, we live in an era of fake news and the underlying – it’s why we only do the show when we have the underlying documents. I believe – again, I believe this because I’m lawyer who likes to read documents, but I believe that’s how you move forward when someone’s like “oh, well, you know, it’s just you and your MSNBC bubble.”
Well, no, this entire episode with the exception of a couple of jokes, is me reading from the Mueller report and reorganizing it and putting it into context, but those are not my words. Those are the words of a lifelong Republican.
Thomas: Alright, well there you go! Yodel Mountain Remembers, everybody! Alright well it is time for First Timer Friday.
We’ve gotta thank our new patrons over on patreon.com/law. By the way you’ve got a Law’d Awful Movies coming at you very soon and all kinds of perks. I hope the patrons enjoyed the entire live show audio, they got access to that already. It’s not too late to sign up and go get access to that, and then you’re gonna get some more perks in the coming weeks.
I will say this, if you haven’t heard your shout out we are still catching up, we didn’t want to take an entire show to thank a million people so we’re taking it a chunk at a time. We’re getting there, we’re almost caught up.
[Patron Shout Outs]
Andrew: Thank you all!
Thomas: Woo! Wow, well nice job, thank you new patrons, that’s awesome! Hope you enjoy all the perks, and now it’s time for T3BE which I am killing lately!
Andrew: Sure are!
#T3BE – Question
Thomas: Or is that sarcasm?
Thomas: Or is that serious people who haven’t heard the live show.
Andrew: Oooh! [Laughs]
Thomas: Maybe I was joking about that.
Andrew: Alright Thomas, a man intensely disliked his neighbors.
Thomas: Ha ha! Always a good start!
Andrew: One night, intending to frighten them, he spray painted their house with racial epithets and threats to kill them. Well this took a dark turn.
Andrew: The man was arrested and prosecuted under a State law providing that (quote) “any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety may be imprisoned for up to five years.”
Andrew: In defense, the man claimed that he did not intend to kill his neighbors, but only to scare them so that they would move away. Can the man constitutionally be convicted under this law?
Thomas: Huh. Interesting.
Andrew: Your options are A) No, because he was only communicating his views and [Laughing] he had not commenced any overt action against the neighbors. [Laughing] Maybe I should not – I didn’t mean to editorialize on that. That could be a correct answer.
Thomas: That’s just –
Andrew: But that seems ridiculous.
Thomas: No, we’re both laughing ‘cuz it’s just every single intellectual dark web argument.
Andrew: Right, yeah that was exactly why I was laughing.
Thomas: Yeah, so let’s hope it’s not-
Andrew: That doesn’t mean that it’s wrong. B) Yes, because he was engaged in trespass when he painted the words on his neighbor’s house. C) Yes, because his communication was a threat by which he intended to intimidate his neighbors.
Andrew: Or D) Yes, because his communication was racially motivated and thus violated the protections of the 13th Amendment.
Thomas: What a weird question. This is a lot different than any question.
First off we’ve got one no answer and three yes answers, I was strongly leaning towards yes so that goes with what I’m saying but imagine if the intellectual dark web wins here. That would be interesting, that would mean this law was unconstitutional. This is very short, we can go over it again here. So the law is “any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety may be imprisoned for up to five years.” I mean, it would be hard for me to imagine that that’s not Constitutional.
Would free speech, would the 1st Amendment say “no, you’re allowed, you can’t have a law that says threatening violence to somebody is illegal.” No, that doesn’t seem like – I’m gonna go ahead and say the intellectual dark web is wrong and eliminate A.
Then the question is can the man constitutionally be convicted under this law? So therefore I’m really gonna just dismiss B, because B says yes because he was engaged in trespass when he painted the word. That cannot be right. It better not be right, because that’s not the law. We read the wording, I read the wording, we both did. It has nothing to do with trespass and everything to do with threats of violence, so that shouldn’t be it.
So we’re down to C and D. I think it’s gonna come down to what was his motivation, maybe. Do we have the mens rea kind of thing? I don’t know. Intending to frighten them. So we know he intended to frighten them and he spray painted not only racial epithets but also threats to kill them and again, the law is any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety.
So this really strongly is C. I am going to be flabbergasted if I get this wrong because this seems like the easiest question I’ve ever had. C, yes because his communication was a threat by which he intended to intimidate his neighbors. Seems straightforward to me, we know he intended to frighten them, he wrote stuff that was threats to kill them, it would be amazing – like if an answer was “well, but he only wanted to frighten them but not to kill them” maybe I guess that could be some crazy answer.
But D is yes because his question was racially motivated and thus violated the protections of the [Laughing] 13th Amendment. Augh, if this is one of those ones where the weird answer is right I will just have to take it, ‘cuz this law has nothing to do with race whatsoever. If the only reason he can constitutionally be convicted is because of the 14th Amendment I would be incredibly surprised.
I’m going to eliminate all of the answers except C because they’re all terrible. I can’t even believe we’re having this conversation, you and I. C, yes because the communication was a threat by which he intended to intimidate his neighbors. This one’s so obvious that now I think I got it wrong, but I’m gonna go with C.
Andrew: Alright, well strong, confident answer from Thomas coming out of the gates. If you’d like to play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore and we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright, thanks so much for listening everybody! Thanks most of all to our patrons for making this show happen, we love you and hey, check your feed for Law’d Awful Movies comin’ at you soon. Hope you enjoy it and we will see you on Tuesday.