Listen to the episode and read the show notes
Topics of Discussion:
- Covington & Burling Census Case Legal Fees
- The Open Skies Treaty
- Thomas’ Bar Exam Revenge
- #T3BE – Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 325.
Thomas: Nice round number, I always like multiples of five, that’s good. Feels meaningless but-
Andrew: Yeah, aren’t we due for a new show intro?
Thomas: [Gasps] That’ll be next episode, then.
Thomas: So teaser alert! I know I’m pretty sure you’ve already put up the patron thread, right Andrew?
Thomas: By the way, how ya doin’ Andrew Torrez?
Andrew: I am fantastic! How are you, Thomas?
Thomas: I am great. Way to signpost that new intro, we can say – so this is kind of your last warning, patrons, to get on the patreon thread, that’s where you can choose the new quotes for the intro. [Laughs] Of course we’re not gonna use the blackmail intro that the patrons got to hear, though that was very fun.
Thomas: So hop on patreon.com/law to do that. Today we’ve got a very interesting episode, we have two realities. [Laughs]
Thomas: If you take the normie pill you’re gonna hear a quick segment on the census and Covington & Burling, both pills will hear that segment, so that means it takes the pills a minute to work. Then if you’ve taken the normie pill, which is that? The blue pill, I think? I dunno. This is too – the MRAs ruined this. It used to be a good, fun-
Andrew: I know, I know.
Thomas: -Matrix reference. Let’s reclaim it.
Andrew: There you go, that’s right.
Thomas: Because the Matrix was written by a couple trans people anyway, so MRAs don’t get to take that from us. Alright, so if you take the normie pill then we are going to have you listen to some more of the live show from L.A. This will be in particular a nice medium to deep dive on the Open Skies Treaty, really fun, then you’ll get to hear a little Thomas’ Bar Exam Revenge which is a fun and popular segment.
Thomas: I get to have a little fun at Andrew’s expense, but I think you might find, listeners, that in the end Andrew had the last laugh. Possibly, we’ll see. You’ll wanna hear.
Thomas: [Laughs] It was fun. So that’s what you’re gonna hear. If you’re a patron, if you’ve taken that patron pill then that means you’ve already heard the live show so we didn’t wanna repeat it for you. Andrew is going to record a little bonus segment for the patrons, but you’ll also get that census segment. So that’s the agenda, anything to add Andrew?
Thomas: Alright well I’m excited. Let’s get to it!
Covington & Burling Census Case Legal Fees
Thomas: So what’s our census Covington & Burling update?
Andrew: Yeah, I love this for a lot of reasons. Covington & Burling just entered into a settlement with the U.S. government for just about $2.5 million in legal fees.
Andrew: The reason for that is that C&B – so we’ve talked about this before and I thought it was worth a little bit of a rabbit trail here. Large law firms like Covington & Burling and comparable firms are ideologically very, very diverse.
So when I worked at C&B, like I said, I worked for some of the most conservative people there. My mentor was an anti-trust lawyer named Deb Garza who’d been in Ronald Reagan’s antitrust department. I used to joke with her, god for those days again! [Laughing] So, what was it like being in Reagan’s antitrust department? You must’ve just done nothing all day, right? What I wouldn’t kill for Reagan’s antitrust department right now.
In any event, I worked for some very conservative people. I worked for Bobby Burchfield who was associated with the George W. Bush re-election campaign and I’ve told the story on the air of having the opportunity to, and declining the opportunity to go down to participate on the winning but wrong side in Bush v. Gore.
Andrew: So that has continued, and Covington & Burling has placed folks into the Trump administration and has placed folks onto the 5th Circuit and into federal judgeships. These are not folks that I would think of as friends of the show. At the same time, Covington & Burling has also taken the lead in arguing on behalf of some of the pro-bono groups that have challenged some of the worst of the administration’s policies. So part of that little rabbit trail is – I don’t know if you remember, there was some goofball non-story about Kamala Harris criticizing a settlement that one big Covington & Burling style firm had entered into, then she had appeared at a fundraiser with other lawyers from that firm.
Andrew: It was trying to be spun as a big “oh, she’s a hypocrite, talking out of one side of her mouth.” I don’t know why I keep feeling the need to defend Kamala Harris who isn’t remotely my candidate and has now sunk to about 5% in the polls, but I feel like she gets the most unfair-
Thomas: In the interest of fairness, yeah!
Andrew: Yeah. It was a nonsense attack because firms aren’t monoliths.
Andrew: This is a really, really good example.
So what did Covington & Burling do? They represented a group of plaintiffs in connection with the challenge to the Commerce Department citizenship question. As we know, they prevailed. So one of the things that happened, Covington actually represented the plaintiffs in the Maryland case before Judge Hazel, whom I’ve spoken about. One of the things that the U.S. Code provides for is that when you prevail in a lawsuit against the U.S. government there are two different ways in which you can get your attorney’s fees paid for.
Now, we know the typical rule in the American legal system is not loser pays. Both sides pay their own freight.
Andrew: But this is designed to say, because lawsuits against the United States have to be specifically authorized, the government has to waive the provisions of the Sovereign Immunity Act, so the idea there is we think it’s probably a social good when people sue the federal government and win. So there are two provisions, 28 U.S.C. § 2412, subsection (d) is what the Court (quote) “shall award” to a prevailing party in litigation against the United States. “Shall” meaning that they have to. They shall award statutory attorney’s fees. I’m gonna talk about that in a second.
Unless the United States position that it took in the litigation was (quote) “substantially justified.” That means, under the case law, justified to a degree that could satisfy a reasonable person or having a reasonable basis both in law and fact.
So unpack that a little bit. What that means is if you sue the government, but the government’s position was substantially justified, was reasonable, it was a super-duper close call or maybe it was a question of first impression and the judge is like “this is really, really close but I’m going with the plaintiffs here.” In that case the law says plaintiffs do not get their attorney’s fees.
Andrew: This was really close, the government was substantially justified so it’s just the ordinary American rule.
Andrew: But there are lots of things that are a reasonable position but are not substantially justified. In that area you get statutory attorney’s fees. We’ll talk about what they are in a second.
Move on up the statute, § 2412, subsection (b) is what the court may award. What they may award are reasonable attorney’s fees at market rates if there is an independent reason that in any other litigation you would also get attorney’s fees.
So if the underlying claim is authorized by statute, if you could get your attorney’s fees by prevailing against me you can also get your attorney’s fees by prevailing against the U.S. government.
Thomas: Makes sense.
In this case, the standard is you can always prevail in litigation on your attorney’s fees if you can prove that the other side litigated the case in bad faith. That takes us to Covington & Burling’s application. [Laughs] Part of why I wanted to put this in here is, you know, we’ve talked about what Covington & Burling legal rates are like. The legal fees here are – will maybe help fokls who are my clients appreciate what they’re paying!
Andrew: The lead attorneys billed out at $1,120.00 per hour. The senior associates billed at $895.00 an hour, all the way down to the, let’s see – this is somebody who graduated in 2015 billed out at $625.00 an hour. Then when we get down to the recent graduates, one was a 2018 law school graduate and that person, oof, directly out of law school, 2018, bills out at [Laughing] $495.00 an hour.
Andrew: Once the calendar year rolled over, $525.00 an hour. So those are the associate rates. The paralegal rates – by the way, there’s no specific requirement to be a paralegal in D.C. law. It’s just you’re not a lawyer.
Thomas: Ooh, am I?
Andrew: Yeah, you could be, absolutely!
Andrew: The paralegal rates were $265.00 an hour, so-
Thomas: I’ll take it!
Andrew: Yeah, that’s a bargain.
Thomas: I’m the Opening Arguments paralegal officially, right now.
Andrew: There you go! [Laughs] So when you put all of that together the application that C&B filed under subsection (b), that’s the bad faith, was $7.25 million in legal fees for litigating the commerce litigation case. That’s a little over 9,000 hours of attorney’s fees.
They also, then, filed under subsection (d) under which you get statutory rates. Statutory rates are not quite so generous, and in fact they were set by law in 1996 at $125/hour with a cost of living adjustment, I’m not gonna get into the complication on the cost of living adjustment but basically that makes it around $210 today.
Thomas: I’ll take it.
Andrew: Which again, good living.
Thomas: Yeah! [Laughs] I accept.
Andrew: But rather less, so the low end, then, was $2.8 million.
Thomas: Just to make sure, you’re saying this is the rates the government is setting for when you can get paid your attorney’s fees when you’ve prevailed against the government.
Thomas: So we’re saying “oh, yeah, that’s a lot of money,” but if the rate is wrong then you’re out that money because you already paid your attorney more, maybe, but then the government’s giving you back this amount. Do I have that all right?
Andrew: You do with one dynamic on there, which is think about who the plaintiffs were, the individual plaintiffs in the commerce litigation. These were ordinary Americans, Latino/Latina Americans that were just average citizens that had no ability to pay $2.5 or $7.5 or any amount of legal fees.
So the dynamic that happens here, this is what Covington & Burlington, what lots of big law firms do, when there is a case of public interest against the United States they’ll take the case pro-bono.
Thomas: Do they bill after they win? Here’s what we charged you!
Andrew: You bill the whole time.
Thomas: Oh but you just comp it? [Laughs]
Andrew: But then at the end you just write it off if you lose.
Andrew: That’s exactly what happens.
Thomas: I see.
Andrew: You do have to do that because you have to submit an affidavit with the court that these are contemporaneous records.
Andrew: Because, yeah, otherwise you win and you’re like “I spent a million billion hours!” [Laughs]
Thomas: [Laughs] Yeah.
Andrew: There is some internal incentive not to pad those hours, because if your associates – if you’re giving them some kind of credit, most firms say they give you at least some sort of credit for pro-bono hours.
Thomas: Oh, right I see.
Andrew: Yeah, so if you get some kind of credit you don’t want the associates slacking off and not doing paying work.
Andrew: There is some internal corrective mechanism, and again, notice that the statute says that the legal fees must be reasonable and the hours must be reasonable and must be documented by affidavit. So, you know, there’s at least some check on driving around with the meter running.
We can talk about big firm legal fees [Laughing] in another episode, but here was an example of where the expense and cost of bringing in a firm is actually an incentive for that firm to do good, because the law says if you prevail and the government’s position was either not substantially justified – somewhere in between not substantially justified and in bad faith, you now have a fair amount of leverage over the government.
So the government settled with C&B for $2.5 million, now that’s lower than the subsection (d), the minimum rates. That represents some discount that the court might say “no, the government’s position was substantially justified.” Now I wouldn’t assign a high level of likelihood to that, and in fact they didn’t. They assigned about a 10% likelihood to that, which strikes me as right. In any case 10% is about as low as I would ever go of “well, obviously the judge would never do X.”
Thomas: Oh, right, especially in this day and age.
Andrew: Yeah! One in ten shot, so I’m not surprised Covington took the $2.5 million, they would also have had the opportunity to dispute hours and that sort of thing, so basically this is the government conceding that its position was not substantially justified in the commerce litigation.
Thomas: Which I know is a tiny deal, but it’s yet another cost to being a total clownhorn in government, right?
Thomas: They’re forced to take up these stupid arguments, cost more taxpayer dollars in legal fees on both sides now.
Andrew: Yeah, and look, this is one case of the hundreds of lawsuits that Donald Trump has spawned.
Thomas: Oh, but he hasn’t taken a Presidential salary, so it’s fine.
Andrew: Yeah, yeah.
The federal government has over all paid out $6.5, $6.65 million in legal fees in connection with the citizenship question because there were multiple cases, so the ACLU got $2.7 million along with Arnold & Porter, which is a Covington & Burling style firm, for the New York case, and that doesn’t even count the California census case, those motions are pending.
So if this one litigation matter has cost taxpayers somewhere between $7 and $9 million dollars, you can only imagine the litigation costs that the Trump administration has passed onto all of us. This is an argument that people raise particularly at the local level.
We’ve talked about this before, but when the Dover Area School District, when their school board enacted a blatantly unconstitutional intelligent design curriculum-
Thomas: Oh yeah, or my High School, right?
Andrew: Yeah! [Laughs] Bret “The Hitman” Hart High School.
Andrew: Those are real. So, you know, $7 million-
Thomas: So you’re saying it’s even worse when it’s like a smaller-
Andrew: It’s way worse! Yeah!
Thomas: Because obviously at the federal level it’s hard to be that mad about $7 to $10 million, but it’s more like A, the idea that conservatives don’t care that his idiotic positions are costing all this money, they don’t care.
Andrew: Yeah, the party of fiscal responsibility.
Thomas: Same with all the golf trips that I think I saw, was it 250 years of Presidential salary or was it even more? But anyway, they don’t care! But it’s a big deal at the lower level, the local level when a tiny high school like mine does some stupid religious thing it’s gonna cost the town or [Laughing] whoever it is a lot of money!
Andrew: Yup, yup! That is exactly right. So, a brief discussion on attorney’s fees, I thought it was fun.
Thomas: Alright, well now that those pills are starting to take affect! [Laughs] If you’re a Matrix fan that means the mirror for patrons, the mirror’s gonna start eating you or whatever?
Andrew: Whoa, déjà vu!
Thomas: [Imitates Mirror Sound] Yeah! [Laughs] I will not have you besmirch the name of the Matrix, best – so good! We can talk about it- [Laughs]
Andrew: No, Matrix is great! Yeah!
Thomas: Alright, so for normies we’re gonna have more of that live show and for patrons we’ll have a little bonus Andrew.
[Commercial – ziprecruiter.com/oa]
Thomas: Here we go, medium dive! Open Skies! And I think we might get a little quick impromptu live performance, what do you think?
The Open Skies Treaty
Thomas: Yes! Aw, that is a load off my mind! I spent hours practicing that!
Thomas: Okay, what do you have for us today Mr. Medium Dive?
Andrew: Yeah, so we learned earlier this week that Donald Trump is seriously considering abrogating the Open Skies Treaty. I’m gonna tell you what that means, obviously, but here’s the summary, the quick takeaway. It’s not something that only a Russian stooge would do, but it’s definitely something that a Russian stooge would do.
Thomas: Andrew, I have a slide that might help with that, hold on.
Thomas: This is sorta – that’s what I think maybe you might mean?
Andrew: All the graphics here were lovingly prepared by Thomas.
Andrew: So just keep that one in mind.
Andrew: Anyway, we learned about that this week, turns out this has been in the works for over a year. Again, doesn’t prove that Trump is a Kremlin asset, but it’s the kind of thing that Russia would reward one of its assets.
Okay, what is this? The Open Skies Treaty is, of course, a Republican initiative. It was passed in 1992 under President George H. W. Bush. [Laughs] I would – there is no limit of things that I would do to bring back President George H. W. Bush at this point, okay?
Andrew: But the background begins in 1954 at the height of the Red Scare. We had 1954, Joseph McCarthy.
Thomas: There we go, that guy!
Andrew: I guess we’ll have to say he’s the second most evil demagogue in our nation’s history?
Thomas: Ah, okay. Hold on. There we go, I got it!
Andrew: [Laughs] And you guys all know this, he had alleged that communists had infiltrated the U.S. government including the army. So, hint hint Congress, for important legal proceedings before the U.S. Senate the army decided that they were going to hire a lawyer to present their case on national television instead of, you know, five minute chunks of congressmen grandstanding for no good reason? Just something to think about.
Thomas: Well, that’s the only way congress can get the “hims” ads, though, in between-
Thomas: Never mind. These are all patrons, they have no idea what our ads are! [Laughs]
Andrew: Yeah! They’re like “the show has ads? What?”
Andrew: Anyway, so the man that the army hired was Joseph Welch, he was a lawyer from Boston, and June 9th, 1954 McCarthy continued the one play that he has in his playbook, that is alleging that people are communists and have infiltrated various organizations, and he alleged that one of Welch’s own staffers was a secret communist, one of the junior lawyers on the staff.
Welch looked into the camera and delivered one of the most famous lines in American history, you know where I’m going with this, right? Here’s what he said, “Until this moment, Senator, I think I’d never really gauged your cruelty or your recklessness.” Then McCarthy tried to interrupt with his usual bluster and in even tones Welch said, “Let us not assassinate this lad further, Senator, you’ve done enough. At long last, have you no sense of decency, sir?”
Today we think about that as being the turning point for Joseph McCarthy. So, as if to prove that Yodel Mountain was alive and well back in the 1950s it didn’t quite happen that way. This was in June, as late as November 1954 when the Senate was debating whether to censure McCarthy, 13,000 [Clownhorns] gathered together and – oh yeah, we can swear in the live shows, too!
Thomas: Oh yeah!
Andrew: So that’s another benefit.
Andrew: So 13,000 [Clownhorns] got together at Madison Square Garden to hold a rally in support of Tailgunner Joe to try and pressure the Senate not to expel or censure him. Turns out that wasn’t enough. He was censured by the Senate.
Thomas: Oooh, I have an artist rendering of what that might have looked like. Here.
Thomas: Senator Frank Sparta said that.
Andrew: Yeah! [Laughs] He was ostracized by his fellow Republicans, treated as a laughing stock in the media after that and died three years later at age 48, a broken and defeated man.
Thomas: Good things used to happen.
Andrew: Yodel Mountain does have a peak.
So what the hell does this have to do with the Open Skies Treaty? In the shadow of this post-McCarthyism moment, July of 1955, President Eisenhower came up with a plan to try and lower our fears at the height of the Cold War of surprise attacks. He came up with a plan to allow Soviet aircraft to make unlimited surveillance flights over the United States if they would allow us to do the same.
The idea is we have open skies, we know you’re spying on us, you know we’re spying on you, let’s do it out in the open.
Thomas: I found a copy of the treaty.
Andrew: Shockingly the Soviets did not go for this treaty, but the post-McCarthy American public really loved the idea. Eisenhower’s offer brought him some of the highest approval ratings of his Presidency for somebody who was a pretty popular President to begin with.
The ultimate politician, then Senate Majority Leader Lyndon B. Johnson, publicly praised the initiative and said, (quote) “This will separate the warmongers from the peacemakers at a time when the American people yearn for peace.” Now, Lyndon Johnson was planning to challenge for the presidency in 1960 so complementing a sitting President means that that was unbelievably popular across the political spectrum at the time.
Notwithstanding that, the Soviets wouldn’t go for it and it took four decades for a version of this to come back into the public eyes. Signed on March 24, 1992, the Open Skies Treaty permits each state party to conduct short-notice, unarmed, reconnaissance flights over the other’s territories, the entire territories, to collect data on military forces and activities.
Again, remember, this is that 1950s ideal of “hey, if we’re flying over your territory we’ll be able to observe troop movements, we’ll be able to see if you are bringing military equipment into a threatening position.” The observation aircraft have censors that are specifically designed to enable observation of military equipment. Now you should know, this treaty was signed in 1992, the observation technology was obsolete even for 1992. The idea is not to allow super high resolution scanning all the way in, but to be able to distinguish a tank from a truck, which we could do even in 1992.
There are 34 signatory nations, it’s most of Europe and particularly the former Eastern-Bloc nations of the old Soviet Union.
The way it works is you, as a party to the treaty, you have to give 72 hours’ notice that you’re going to overfly the country, so three days. Then the host country has 24 hours to acknowledge that request, and they can choose, they can say “you can use your own plane or you can use one of our planes.” Then 24 hours before the flight you have to give them the flight plan and say “alright, we’re gonna fly over X, Y, and Z.”
Then there’s a bunch of other logistical stuff, it’s not really important, you get the idea.
Thomas: But it sounds like, okay, the idea is let’s try to maybe not kill each other with nukes, right?
Thomas: Let’s find a way – tensions were really high, it’s all these ways to be like “is there something we can do?” Obviously it’s not gonna work if Russia’s just like “no, we’re fine, we’re not doing anything.” Nobody trusts each other so we need to be able to actually see what’s happening, but it’s a weird counterintuitive thing I never would have thought – honestly I didn’t know about this treaty. I never would have thought that we had agreed, okay, we can each look at everybody’s stuff so that maybe we don’t kill each other.
Is that the idea?
Andrew: Yeah, that’s exactly right.
Thomas: Now Trump wants to get rid of that?
Andrew: I’m gonna skip over the technology, we talked about that a little bit. Ultimately this has been a good thing for two reasons.
The first is the principles that Thomas, you just talked about, the vision that Eisenhower had. It’s helped reduce the tensions between nations that were formerly at each other’s throats during the Cold War.
The second is it’s more than just symbolic. The Open Skies treaty provides us with actual useful intelligence. We have the same number of flights that are scheduled per year, it’s 42 per nation. Since 1992 the United States has overflown Russia 210 times and Russia has overflown the United States 70 times, so we’ve used it three times as often. It’s unquestionably been a benefit to us in terms of actual gathering of intelligence in addition to its reducing tensions.
What I really want to get to is the arguments, because if Trump does this the Republicans are gonna make a whole bunch of pretextual arguments. You need to know what those are and why they’re nonsense. There are basically two arguments that they are going to make.
Number one, they’re going to say “well, the Russians are cheating on the treaty and they allege we’re cheating on the treaty, so if we can’t hold them to that why should we hold ourselves to this treaty?” That’s their first argument. This argument has been made rather consistently for the last 20 years, and across Democratic and Republican administrations, the United States has agreed to continue the treaty and the Russians want the treaty blown up. I’ll just let you draw your own conclusions from that.
Thomas: Push back to that one. I mean, I don’t want to interrupt but I do want to ask the big question. What possible reason – I feel like we’ve all been gas-lit a lot what with the Mueller report coming out and then the Glen Greenwald’s of the world and everyone else saying “you idiot liberals,” what is it? You stupid libtards.
Thomas: Whatever Andrew said in the intro. We’ve all been gas-lit over the idea that he was never a Russian stooge, that was absurd. Rachel Maddow’s been making up stuff all day, it’s nonsense. Then you see this and thirty other examples of this exact thing, where it’s like we were pretty reasonable to be worried that he was maybe doing things in Russia’s interest and not in the United States interest, right?
Thomas: Is there any other explanation for that?
Andrew: So the only other explanation I can dig up is there is an argument that current satellite technology – because, again, remember I told you the cameras that are authorized by the treaty were – I just envision these as the camcorders your mom had when you were growing up. This huge thing with VHS in it, whatever, they’re bad resolution cameras. There’s an argument that says “we have these super sophisticated satellites now so we don’t need the crappy cameras that are on the Open Skies initiative.”
Thomas: Do they just have one VHS tape that says “Christmas 1992” that they just keep popping in and out of it?
Andrew: Right. Notice, by the way, that that argument is only a defensive argument. It’s not an argument that says the treaty is bad for the United States.
I cannot find a Republican right now who has said this treaty is bad for the United States. I have found some that have said “meh, it’s maybe not that useful.” Mind you, the “not that useful” argument is not that good an argument for a lot of reasons.
Number one, because remember that the intel that you’re gathering are things like troop movements. You don’t need to zoom in from a satellite. Also, when I saw the satellite thing I was like “okay, well that makes sense,” then I looked at how spy satellites work.
The way in which your airspace works is you own a wedge shape, when you own a piece of land you own a wedge shape from that land out into space. So we can’t have satellites in permanent orbit over Russian airspace, to get out there the satellites have to reposition themselves in order to be able to zoom in on Russia.
As it turns out, it takes longer to reposition the satellites than it does to give your 24-hour flight plan notice on the OSI, so if you think they’re secretly moving troops you can say “alright, we’re doing a flight, we’re gonna go over here and give you the flight plan and we can discover that” and they only have 24 hours to move their stuff if they’ve got secret stuff in the way; whereas if we’re moving a satellite that takes like a week to get there. So I didn’t know that.
Planes also have more flexibility in their flight paths, you can divert off. If you miss something an airplane can turn around and double back and take another picture of it. All of that is permitted within the OSI. So all of that are like the technical reasons, but there’s one really, really comprehensive reason to want to keep the OSI treaty in space. In place!
Andrew: And that is the pictures that you take as part of the Open Skies Treaty are shared among all the signatory member nations.
Some of you who may be around our age may remember a little debacle of Colin Powell going to the U.N. and saying “we have proof of Iraqi sites that are constructing weapons of mass destruction” that turned out to be, like, baby food factories and the like. I’m serious, the United States Intelligence took, and our reputation for the voracity of our intelligence, took a huge hit with that debacle from which we really haven’t fully recovered.
The difference between gathering proprietary U.S. pictures that everybody’s gonna be like [Sarcastically] “right, the CIA took these pictures just like you did in 2002, right?” The idea that these are publicly validated and shared across all the member-nations is really, really important when you want to try and build a coalition to say “hey, look, there are serious troop problems here.”
So we bolster our credibility with international cooperation, which I think [Laughing] I’m starting to see why Trump doesn’t wanna do this.
Thomas: Do you think this’ll be the kind of thing – well, A, so I wanna know what the process is, and then B, it feels like for now, anyway, that Republicans are kinda pushing back on the incident with the Kurds and Syria and all that.
Do you think this would be maybe more in that category where we’ll get some [Sarcastically] amazing shows of courage and strength in the form of Tweets about being kinda troubled about stuff and no action? Would you put it in that category or do you think Republicans will bother trying to jump on board with this?
Andrew: Well, my record for predictions is [Sarcastically] doin’ great. Bill Barr’s orange jumpsuit testifies to that. It absolutely – national security is and should be a core Republican area that they ought to care about. I dunno how much further [Laughs] how willing I am to go beyond that, but look, it is, and as part of the ongoing narrative of the collapse of the Trump administration, you could see that causing a wedge.
Now, as for what can happen? We actually covered this back in episode 214 with Trump’s threat to unilaterally pull out of NAFTA. As it turns out, Presidents – the Supreme Court is really clear – Presidents can unilaterally abrogate treaties. This shouldn’t be the case. It makes no sense from an Originalist position because Article VI, Section 2 of the Constitution is super-duper clear.
When we did episode 214 I had a bunch of people tweet at me and they were like “dumbass, the Constitution specifically says that treaties shall be the supreme law of the land and judges in every State shall be bound thereby and anything in the constitution or laws of any State to the contrary notwithstanding, so you’re wrong and I’m right.”
I wrote back and said, “uh-huh, it does indeed say that.” As it turns out, since 1979-
Thomas: God grant me the confidence of some dude quoting the Constitution at you!
Thomas: That thinks you haven’t even done that. They think you’re just talking from nothing? And they’re like “here, let me show you the Constitution.” Oh, there’s a Constitution?! [Clownhorn]! Okay.
So as it turns out, in his administration Jimmy Carter unilaterally withdrew from the SALT-II Treaty, the Strategic Arms Limitation Talks Treaty. Members of Congress sued to enforce that, to say “hey look, SALT-II was ratified by Congress and it says it’s the supreme law of the land, and whatever you are, Jimmy Carter, you can’t unilaterally abrogate the supreme law of the land.”
The Supreme Court said maybe he can? We don’t really know. This was our old friend nonjusticiability.
Andrew: The Supreme Court was like “you know there are lots of cases we’re not gonna think about and one of them is whether a President – we’re just not gonna allow a sitting Congress to sue a sitting President for how he’s carrying out foreign policy. He’s probably wrong, it probably does violate the Constitution, but your remedy there is impeachment or whatever, your remedy is not coming to us as the Supreme Court to make him abide by the treaty.”
Thomas: You guys remember that time when Jimmy Carter charged foreign leaders to stay at his peanut farm?
Thomas: And he charged them – the price for the peanuts he sold them was like double, triple the price? He made so much money on that peanut farm.
Andrew: Yeah, that’s why there are buildings all across the country with “Carter” on them in huge letters.
Andrew: This case is called Goldwater v. Carter, Barry Goldwater, and it’s one of these super fractured per curium opinions, but again, basically what it amounts to is if the President does it there’s nothing you can do about it.
Thomas: There you go!
Andrew: That was not how I planned to end this segment, but there you have it!
Thomas: That was a medium dive that I think bordered on deep dive. I think that was – would you say? I would say that was a deep dive actually, so you got more than you bargained for. Alright, well, thank you for that! I’m terrified, as always, that Trump is doing whatever he’s doing, we’ll see if we can put an end to that someday.
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Thomas’ Bar Exam Revenge
Thomas: That was so much fun. The fact that I just so brilliantly got that right does a little bit ruin our next bit here, which is now a tradition of live shows, which is Thomas’ Bar Exam Revenge!
Thomas: How many people get that reference? Anybody? The picture? Yeah, one two – that is from A Fish Called Wanda, that is one of my favorite movies, it is so good. Check it out everybody.
Andrew: [Impersonation] Revenge!
Thomas: [Impersonation] Revenge! Okay, so you know, in times past when I have sought revenge on you – in a public way, I mean – we’ve gone to the sovereign citizen well to find out what those kooks think about the law and see if Andrew could guess.
You know, I was thinking, though, lately Republicans are about as bad as sovereign citizens anyway!
Andrew: Oh ho ho ho! [Laughs]
Thomas: So I’ve got some different questions for you. Here’s a fact pattern. You know, the bar exam loves to do this, this is a long fact pattern.
Thomas: “A man who has lived for 73 years without ever giving a woman an orgasm becomes President. It’s entirely possible he doesn’t know or care that such a thing is possible. Once his wife made a commendable attempt at faking an orgasm but then realized her pleasure was completely irrelevant to anything he was doing so from that point on she usually just lay motionless and wait for him to be done. Anyway,” this – they like to put in those facts, you know, it’s the bar, they like to mess with you.
Andrew: I’m issue spotting with that!
Thomas: Issue spot, exactly.
“Anyway, this man said the following on national TV (quote) ‘China should start an investigation into the Bidens because what happened in China is just about as bad as what happened with Ukraine’” (end quote). So that’s your fact pattern, now you have to answer some bar questions based on that fact pattern.
So which Republican responded by saying (quote) “I doubt the China comment was serious. He loves to bait the press.” Here’s your options, ready? “A) Lindsey Graham; B) Marco Rubio; C) Roy Blunt; or D) Donald Trump, Jr.”
Andrew: Ooh. Alright, let’s see. I’m immediately ruling out Lindsey Graham.
Andrew: Because Lindsey Graham would have just repeated the exact question back. Would have been like “what Joe Biden did in China” – by the way, did Joe Biden do anything in China? Anyway.
Thomas: Nobody knows!
Andrew: But Graham would have said “and obviously the nation’s highest priority is investigating what Joe Biden did in China” so I’m eliminating Lindsey Graham. Marco Rubio is tempting, but he would’ve had to have shown up, so-
Thomas: There’s Twitter, though! He doesn’t have to go anywhere.
Andrew: Oh, alright, okay! Don’t try and help! Roy Blunt – is he still the Governor of Missouri? He’s – he’s a guy.
Thomas: I suppose I should’ve looked that up…
Thomas: I mean the bar exam commission, they assume you know.
Andrew: That sounds like – well, no. I was really tempted for Donald Trump Jr. because of the defense, the “he loves to bait the press.” But, yeah, Donald Trump Jr, I don’t think he knows what the word “bait” means.
Andrew: So I’m torn. I was tempted, I think D is an attractive distractor, I think I’m torn between Rubio and Blunt, I’m gonna put Rubio back in ‘cuz you gave me a hint there that he could do this on Twitter, so he could actually be wherever the hell it is Marco Rubio spends his days that’s not on the floor of the Senate. I’m gonna go with Blunt.
Thomas: Okay. You’ve gone with Blunt, let’s find out if you got it right. You got it right!!
Thomas: Wow. Here’s the thing, Rubio was the attractive distractor, I hate to embarrass you but you actually didn’t know enough to know that, like happens with me on the bar sometimes.
Thomas: I don’t know enough. Because he actually had a very similar quote, I was trying to mess you up here because his quote was (quote) this was Rubio, “I don’t think that’s a real request, I think he did it to gig you guys, reporters. I think he did it to provoke you, to ask me and others to get outraged by it. He plays it like a violin and everybody falls right in, that’s not a real request.” So I just had a legal question for you, Andrew.
Thomas: The other day a guy drew a knife on me and he was like “give me your wallet” and I was like “Oh my g – wait. Is this a real burglary, or are you just tryin’ to rib me?”
Thomas: And he was like “you got me! I mean, yes, give me your wallet, but not really?” and I still had to give him the wallet, but I don’t know. Was that a crime?
Andrew: So I would need to know, is he an androgynous person?
Thomas: That’s a callback-
Andrew: That’s a callback to the New York live show if you didn’t get that.
Thomas: But no, you got it right, it was Roy Blunt but I thought I’d trick you with that similar quote. I didn’t. I do wanna ask you in seriousness, do you want to talk a second about the idea of the defense of “he didn’t really commit the crime he said he was doing, he was just joking.” Does that work? Can you do that?
Thomas: So no. Alright, are you ready for question two?
Andrew: Bring it on!
Thomas: Okay, this is tough because this is actually a multiple thing. So can you match the statement of the Republican to who made it? Sorry, I’m gonna give you a statement. No. This is my first time seeing this! No, I’m just kidding.
Thomas: I’m gonna give you 4 statements and then you have to try to match who said them. It’s gonna be kinda tough, but the bar exam’s – it’s hard to be a lawyer so you’ve gotta do it.
Statement 1: (Quote) “I’m pretty sympathetic with what the President has gone through. I have never seen in my lifetime a President after being elected not having some measure of well-wishes from his opponents.”
Andrew: Mitch McConnell.
Thomas: Something that-
Thomas: Something that could only be said if your lifetime started in two-thousand [Clownhorn] seventeen!”
Thomas: And not before 2008 when Barrack Obama had absolutely no measure of well wishes from any of his opponents.
Anyway, second quote here, (quote) “You watch what the President said, he’s not saying China should be investigated” and then the bar helps you out here ‘cuz it reminds you of the fact pattern. “Fact pattern reminder, direct quote, China should start and investigation into the Bidens.” Just FYI. “Also Trump has still never really sexually satisfied another human being,” it also reminded you of that.
Thomas: Another statement, three, (quote) “I feel that my loyalty to the Republican party does not relieve me of the obligation which I have.”
Thomas: And final statement, (quote) “what the President has done is incredibly serious and it would be an abdication of my Constitutional duty, an insult to the office I hold, to not support a full investigation into his conduct regarding Ukraine, China, and any other foreign nation with which he may have engaged in inappropriate conduct.”
So here are your choices. It’s a mix and match. Representative Butler, Senator Johnson, Senator Blevins, Senator Romney, or Representative McCarthy. So it gave you one extra to try to trip you up.
Andrew: Yeah, yeah.
Thomas: So what do you think? It’s kinda hard but what have you got?
Thomas: We can go one at a time if you want? We can do one, you can tell me who you think it is.
Andrew: Yeah, I think 4 is Mitt Romney.
Thomas: Okay. Just do ‘em all.
Andrew: Yeah, I’m gonna try and work backwards.
Andrew: Romney could also be 3, because that’s the kind of weasel words that he likes to use before sending a Sternly-Worded Crunchwrap over to the White House.
Andrew: I think 4 is D.
Andrew: I think 4 is Romney. Kevin McCarthy is a lying sack of [Clownhorn] so-
Thomas: Not the question, but okay. Yeah.
Andrew: So I’m gonna say 2 is E, 2 is the worst.
Thomas: 2 is E, okay.
Andrew: McCarthy is, I think, the worst of those guys up there. So gonna go 2 and E.
Thomas: I see your reasoning. Okay.
Andrew: Let’s see…
Thomas: I know it’s a tough one, I gave you a lot. That mathematician should also tell me how many combinations there are of this.
Thomas: [Laughing] Because it’s not really one out of four. It’s like one out of two-thousand-million.
Andrew: [Laughs] I am gonna go with … Senator Blevins? Senator Blevins. I’m gonna go with Butler for – A for 1 and Johnson for 3. So that’s my final answer.
Thomas: So the order is A, D?
Andrew: No, A, E.
Thomas: A, E-
Andrew: B, D.
Thomas: Okay, let’s find out how you did. B! So number one is Senator Johnson. That is “I’m pretty sympathetic with what the President has gone through. I have never seen in my lifetime a President after being elected not having some measure of well-wishes from his opponents.” That’s an incredible quote! The stupidity!
You didn’t get it right but I appreciate your reasoning, that was an either/or. Let’s see what 2 is. 2 is E, so that’s McCarthy. You got that one right, right?
Andrew: Yeah. That was the gimme.
Thomas: Well done, that was good. Those first two I think were tough, they really could’ve been either/or. Let’s find out what 3 is. 3 is A, so 3 is Representative Butler. So, the only thing is, Representative Butler happens to be M. Caldwell Butler who wrote this in a letter to his mother about standing up to Nixon during Watergate?
Thomas: So, I mean – sorry. Doesn’t apply to Trump.
Thomas: Just FYI, his mom didn’t want him to stand up to Nixon, she was worried about it. So not only did, back then, a Republican stand up to the President of the United States, the most powerful member of their party, he also went against his own mom in the process!
Thomas: It’s like, “no, mom, back now where we are in now times we have dignity. In the future they might not, but now we’ve gotta actually stand up for the rule of law” and he did! So that’s that one. Let’s find out, what’s 4? Ah, yes, that’s Senator Blevins.
Thomas: It’s so Blevins, it sounds exactly like what he would say. The only problem is I made him up and I made the quote up? So …
Thomas: While it’s totally what Senator Blevins would say, Senator Blevins also isn’t real. And neither is any meaningful Republican response to Trump.
Andrew: I think I should get half credit for knowing that Senator Blevins was made up.
Thomas: I know, I was gonna help you more – I was gonna-
Andrew: Help me less.
Thomas: -be harder by saying “Representative Blevins” ‘cuz who the [Clownhorn] knows? There’s probably 12 of them, but I was like “you know, I’m gonna go Senator Blevins, give him a chance.” I googled it, there’s never been a Senator – there’s like State Senator Blevins, but.
Andrew: Isn’t Blevins one of the Dodgers relievers?
Thomas: I dunno, maybe.
Andrew: No, no no! That was not a crack!
Andrew: I think Jerry Blevins is a reliever for the Dodgers.
Thomas: Okay, here you go. A Constitutional law question, so this might be right in your wheelhouse. What’s the correct text of Article 2, Section 4 of the Constitution? Don’t worry, we’ve got options. (Quote) “The President shall be removed from office on impeachment, etc., etc., unless the Vice President is a Christian weirdo who calls his wife mother,”
Thomas: “in which case it’s best to just wait it out. Also, slavery is awesome, reminder it’s the 1700s and we Founding Fathers are almost all giant pieces of [Clownhorn].” So is that the correct answer? That’s answer 1.
Andrew: Super tempting!
Thomas: Could be that. Let’s see, what’s the next one?
“The President shall be removed from office on impeachment for and conviction of treason, bribery and other high crimes and misdemeanors, but the House should only vote to impeach if they first have time traveled to the future and verified that the Senate will actually convict, otherwise the President by rule will gain an automatic 10-point approval bump in every poll and be granted an extra 200 electoral votes in his next election.” So that’s possible, could be that based on what we’ve seen lately.
C, (quote) “The President shall be removed from office,” etc. etc., “unless those high crimes are done in full view of the public on something called ‘TV.’”
Thomas: So is that? Could be that.
Andrew: That’s very tempting.
Thomas: Or the final answer, “The President shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.” Period! Emphasis mine.
Thomas: I wanted to help you out with a freebie. Do you know it? Do you know it though, do you actually know which one it is? Remember from law school which one it is?
Andrew: Alright, so, uh.
Thomas: What are your top two choices? [Laughs]
Andrew: Well I was born in Springfield, Illinois so that’s not it.
Thomas: [Laughs] Alright, it’s D, we all know it’s D. What else we got? We got a couple more here. Oh duh, we all know that.
Thomas: Let’s see, where are we?
Oh, another fact pattern! “Owner One owned a lot on a hilltop, Owner Two owned the neighboring lot in the valley below. In the spring the water from the melting snow on Owner One’s lot flowed downhill where Owner Two captured it and used it to water his crops.
Recently Owner One dug a trench on his land to capture the water from the melting snow to use to water his own crops. Owner Two must now purchase an alternate source of water for his crops because the water no longer flows to his land. The lots are located in a riparian jurisdiction. May Owner Two recover the costs of the alternate water source from Owner One?”
You answers: A) Yes, because Owner One may not alter the natural flow of surface water; B) Yes, because Owner Two suffered damages from the alteration of the natural flow of surface water; C) No, because Owner One may capture diffuse surface water on his own land for any reason; and D) No, because Owner One may alter the natural flow of surface water to use in connection with his own land.”
How do you [Clownhorn] like it?!
Andrew: Alright. And I wanna point out that Thomas and I never coordinate on these questions.
Andrew: So riparian waterways have to do-
Thomas: [Laughs] Dammit! I was hoping you wouldn’t remember! [Laughs]
Andrew: -with the flow of water.
Thomas: I just googled “hardest real property question” and all of them wanted me to pay for it so I found one free one and I was like “okay, he’s not gonna know that.”
Andrew: So riparian does have to do with the flow of water.
Andrew: But what it prevents you from doing is when a stream runs through your backyard you can’t dam up that stream and then cause injury to the [Laughing] literally downstream property owners.
But I don’t believe that riparian rights apply to something like melting snow, because that’s not a river or an aquifer, so I am going to go with option C.
The reason that I prefer C to D is because in a riparian jurisdiction you may not alter the natural flow of surface water in connection with your own land. That would allow you to dam up the river. So I think it’s C, I feel pretty confident on that.
Thomas: Alright you [Clownhorn]!
Andrew: Thank god I got that right!
Thomas: Got it!
Andrew: I would’ve looked like-
Thomas: Yes, Mr. Lawyer, you got the lawyer question exactly right. Hey, you know what? We’re both big winners today! You nailed it, I nailed it, we’re the best at the bar let’s face it.
Andrew: [Impersonation] Case closed!
Thomas: Wow, I thought I’d get you! I even typed out the explanation thinking “oh, he’ll forget what riparian is” or whatever? Don’t need it. You said exactly what it says. So [Clownhorn] you got it exactly right.
Thomas: Yeah, I thought you might go for D, maybe as an attractive distractor. Well, you’ve won the game, sir!
Thomas: Okay, it is time for Top Patron Tuesday! Thanking our hall of famers, our all time greats over on patreon.com/law.
[Patron Shout Outs]
Thomas: Alright, well it is time for the thrilling conclusion of what I think is the easiest bar question ever, but I can’t wait for this to be the weird wrong one.
#T3BE – Answer
Andrew: Yeah, so this was a man who intensely disliked his neighbors so he commits a hate crime.
Thomas: [Laughs] Yeah.
Andrew: Goes out – no he does!
Thomas: I know, you’re right.
Andrew: Spray paints their house with racial epithets, threats to kill them. He was arrested and prosecuted under a State hate crime law, a law providing 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.
Thomas: Hold on, you said a hate crime law, was that in the?
Andrew: Yeah, it absolutely was not. That is in fact part of how this question is trying to trip you up.
Thomas: Ah, gotcha.
Andrew: Because the question gives you – this is a pre-Trump question – but it says “spray painted their house with racial epithets.”
Andrew: I’m thinking that’s probably not Honky Go Home, right?
Andrew: But the State law does not have anything to do with the racial epithets.
Thomas: I just wanna be absolutely clear, I was critical to the question somewhat – well I don’t even know if I was, but-
Thomas: It did not specify that it was a hate crime law, it just said violent threats, right?
Andrew: Correct. Yup. So then the question is, a man says “I wasn’t trying to kill them, I just wanted to scare them?” Can he be constitutionally convicted? One no answer, free speech; three yes answers. First you said well obviously the intellectual dark web position is ridiculous. That is correct!
Thomas: Oh, thank god.
Andrew: Communicating a threat with intent to intimidate the recipients is plainly not free speech. We have talked about that at great length, you know it better than I do, 100% correct. You went to yes, because his communication was a threat by which he intended to intimidate his neighbors, that is absolutely correct.
Thomas: [Sighs] Oh, okay.
Andrew: Easy question, easy answer.
Thomas: Thank god.
Andrew: Swing and a deep drive over the fence!
Thomas: Yeah! A series winning grand slam on terrible pitcher Joe Kelly-
Andrew: There you go!
Thomas: Sort of like that.
Andrew: Yeah, this question is the Joe Kelly of bar questions.
Thomas: Thank god I was really worried that there was gonna be something completely wrong with my legal framework! [Laughs]
Andrew: Nope! And the whole 13th Amendment thing is-
Andrew: A total nonsense – the 13th Amendment prohibits involuntary servitude-
Andrew: Racially motivated threats-
Thomas: Nowhere in that. And the way you know is that racially motivated threats were probably super cool right after the 13th Amendment, forever! [Laughs]
Andrew: Yeah, well… So, yeah! That was why D was just wrong, and B is also incorrect. Here’s what the bar says: “This answer correctly states that the man may be convicted but misstates the legal reasoning.”
Andrew: “The State may not punish an individual for the content of his speech simply because he engages in unlawful conduct as an incident to that speech.”
Andrew: “The speech restriction itself must be consistent with the speech clause.” I guess what that’s saying there, it’s why I read it out loud because I wasn’t instantly following it. It’s saying that the answer B, yes because he was engaged in trespass, suggests that otherwise the speech would have been a problem.
Andrew: But the fact that he was trespassing made it – and no, no, we’re not talking about the speech.
Thomas: This was an easy question for once!
Thomas: Thank you, I needed it.
Andrew: Great work! But you got it right!
Thomas: On a roll, doing great, nailing it, gonna pass the bar, thanks for playing everybody! Oh, well why don’t you hop in your time machine and see who else got this question obviously right! Or maybe we’ll look for a wrong, we’ll see if anybody got it wrong with a good answer, we’ll see.
Thomas: Anyway, hop in that time machine, tell us who this week’s winner is.
Brian: This week’s winner of T3BE is @TTTBE_Guesses: “This is an easy C. ‘With the intent to cause that person to fear for his or her life’ and ‘did not intend to kill his neighbors, but only to scare them.’ You do not have to intend to kill, only intend to scare, which this guy admitted to doing. Real Rudy Giuliani defense.” Give them a follow @TTTBE_Guesses.
Thomas: Alright thanks so much for listening, hope you enjoy the dual vision episode, thought it was pretty cool myself, and we will see you on Friday!