Transcript of OA326: When the SCIF Hit the Fan

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[Show Intro]

New Show Intro

Thomas:         Hello and welcome to Opening Arguments, this is episode 326.  I’m your host Thomas Smith, that over there is Andrew Torrez, your legal expert and Andrew how are you doing?  And I just remembered we all just heard a brand new intro that was so funny, I don’t even.  I was laughing the whole time and I don’t even remember what the new quotes were!

Andrew:         [Laughs]  

Thomas:         In this timeline I haven’t done it yet, but they were great, weren’t they? [Laughs]  

Andrew:         [Laughs]   I have every confidence that they will be fantastic.  I will give you my suggestions when we’re done with the record which you never take, so-

Thomas:         Ooh.

Andrew:         [Laughs]  We’ll see how that goes!

Thomas:         [Laughs]  I wouldn’t say never.

Andrew:         Just infrequently.

Thomas:         [Laughing] Yeah!  Well, you know, there’s a lot of concerns, there’s a lot of moving parts.

Andrew:         That’s right, I get it.

Thomas:         Sometimes they’re too long, sometimes they’re not funny. [Laughs]  

Andrew:         [Laughs]  There you go!

Thomas:         Speaking of funny, though-

Andrew:         That’s the new tagline for the show! 

Thomas:         [Laughs]

Andrew:         Sometimes they’re too long, sometimes they’re not funny!

Thomas:         Yeah, well, credit where credit’s due, sometimes I try to punch up the titles of the episodes ‘cuz, you know, they’re dry?  Not the case in today’s episode.  That was all Andrew and the episode title is hilarious and I wanted to give you a shoutout.

Andrew:         [Laughs]  Alright.

Thomas:         I audibly guffawed when I saw the title, so good stuff there.  [Laughing] We’ve gotta talk about when the SCIF hit the fan!  Ah man, what a bunch of clowns!

Andrew:         Yup!

Thomas:         What a bunch of absolute clowns!  But anyway, we’ll get to that! [Laughs]  So what do we need to plug.  Oh, you wanted to plug the 324 transcript.

Andrew:         Yeah, our amazing transcriptionist Heather Loveridge put together, if you haven’t seen the regular transcripts of the episodes at, you should, they’re a great way to share the show with folks who maybe don’t listen to podcasts or whatever, the work Heather did on 324, that was your guide to the nine crimes explicitly laid out in the Mueller report is amazing.  What she did was, instead of transcribing where I’m reading from the report, she has actual screenshots from the Mueller report embedded into the article. 

Folks on our Facebook group, in the Facebook community, Ashley Beisley I think in particular had some success talking to their Aunt Cathies and Uncle Franks and putting the evidence out in front of them.  We wanted to make this a tool to help you talk to the folks in your life who maybe are still not sold on the whole impeachment thing, this feels like it’s a good tool.  I was really, really excited and I wanted to give a special shoutout to Heather who did an amazing job on that.

Thomas:         Absolutely!  Heather is amazing, totally echo that shoutout, she’s awesome the transcripts are great.  I also wanna echo your shoutout to Ashley. 

Reaching Out to Uncle Frank and Aunt Cathy

I was just thinking, a lot of it feels so futile when you talk about the Uncle Franks and the Aunt Cathies, the trademark Uncle Frank and Aunt Cathy references that we do.  But even if you’re not convincing someone in the moment, ‘cuz that never happens, that really never does.  Almost never is somebody gonna be like “ope, I was wrong about everything that I’ve been saying,” and not only saying but been delivering in a really condescending, insulting way.  I’ll just turn on a dime and say I was wrong when I did all that, that never happens, but you never know what the little thing is that kinda chips someone just enough on the way to ultimately changing their views sometime down the road, so even if, you know – let’s be real, nothing’s gonna be the Matlock moment-

Andrew:         [Laughs]  

Thomas:         [Laughs]  -of we’re gonna show the Trump support this-

Andrew:         [Impersonation] I confess!  I did it all!

Thomas:         [Laughs]  Oh yeah, in memoriam, that quote that is no longer gonna be on the opening.  [Impersonation] Yes, I did it!!  Yeah, it’s not gonna be that but you never know.  It could be one of the straws on that camel.

Andrew:         Yeah, yeah!  I think that’s right.

Thomas:         That’s great.

Andrew:         Part of, to me – I wanna echo what you’ve said 100%, it’s a long game and it’s a tough conversation to have.  What I try and do in any one conversation with somebody who’s on the other side is point out that their sources are not just accidentally wrong.  [Laughs]  Right?

Thomas:         Yeah.

Andrew:         That when you are relying on propaganda by people who have an agenda to protect the President they do things like delete the word “not” in the middle of a sentence.  You know, it’s hard.  We’ve talked about this, when you have an alternative view of the universe sometimes bringing that cognitive dissonance into focus does, I think, the way you put it, leave a little bit of a stone in someone’s shoe to be like-

Thomas:         Yeah.

Andrew:         Yeah, you know, the last time I used this source, the last time I sent somebody over to The Daily Caller I sure look like a goddamn idiot as a result of that.

Thomas:         [Laughs]  

Andrew:         Maybe I won’t do that anymore.  So, you know.

Thomas:         Yeah, I really wonder what the strict Constitutionalists have to say.  Remember how up in arms everybody would get over Obama because they thought, all the conservatives thought he was just burning, ripping up the Constitution.  Then you have Trump who literally says “oh, your phony emoluments clause.”

Andrew:         [Laughs]  Right.

Thomas:         Just doesn’t even acknowledge it, says a whole section of the Constitution – or a whole clause, rather – is just wrong ‘cuz he says so.

Andrew:         Yeah!

Thomas:         It’s not real.  Fake news, fake Constitution!

Andrew:         [Sighs

Thomas:         [Sighs] Good times. 

Andrew:         There ya go.

Serious Inquiries Only Coverage of Tulsi Gabbard

Thomas:         Oh I also wanna give a quick shoutout over to SIO, Serious Inquiries Only podcast, Jamie and I covered Tulsi Gabbard ‘cuz we both, for so long, have just wondered WTF is with Tulsi Gabbard?  Genuinely unsure, and we did a little bit of a deep dive on that.  Tried to look at every source we could to see how best we could come up with what her deal is.  Literally, what is her deal?

Andrew:         [Laughs]  

Thomas:         I don’t know that anyone can know for sure, but we talked a lot about it and I hope people enjoy it.  Go check out the Tulsi Gabbard episode.

Andrew:         Yup, absolutely!

Thomas:         New outro music and credits, by the way.

Andrew:         Oooh!

Thomas:         Just throwin’ that out there.

Andrew:         I like that!  One more thank you before we get into the main segment, lots of folks know I’m travelling and this week’s episode would not have happened on my end without some really timely research by friend of the show Morgan Stringer who put together a bunch of stuff for me, so Morgan, thank you. 

Thomas:         That’s awesome, yeah.  I was not gonna mention it because I didn’t know if you wanted to pull off the illusion that you were right there in wherever you live, Maryland, but okay.

Andrew:         [Laughs]  

Thomas:         Now that the cat’s out of the bag, Andrew’s been sippin’ delicious wines and prosecco over in – I’m not gonna get into it, but I wish I was there and the pictures are amazing, but it’s okay.  It’s okay, we’re doing the show, let’s do the show!

Andrew:         Yeah, let’s do the show! [Laughs]  The show always comes first!

Thomas:         Let’s talk about the SCIF hitting the fan!  Here we go!

The SCIF Hits the Fan

[Segment Intro]

Thomas:         Okay, are we just yodeling?  Is that all we’re doing?  Just constant yodel?

Andrew:         I think, yeah.  The show, maybe the new intro will just be a minute of four different yodel super-mixes, because at least our Friday shows-

Thomas:         Combined with different clown noises?

Andrew:         [Laughs]  

Thomas:         And the sound of Matt Gaetz walking in clown shows [Imitates Clown Shoe Squeak].

Andrew:         Oh, god.  Yeah, he is the worst.  No, so look, everybody knows the incident.  Matt Gaetz led a troop of clowns-

Thomas:         [Laughs]  

Andrew:         Actual, literal clowns.

Thomas:         Yeah, we demand to be taken seriously.

Andrew:         Not just clownhorns.  Right! [Laughs]  Straight out of the Ministry of Silly Walks. 

Thomas:         [Laughs]  

Andrew:         Into a SCIF, which is a “Sensitive Compartmentalized Information Facility,” where they disrupted the deposition of Laura Cooper, the Deputy Assistant Secretary of Defense.  You know all of that, we’re going to break down what potential crimes were committed in doing so and we’re gonna talk about why this goes-

Thomas:         All the consequences they aren’t going to face for it!  I can’t wai.

Andrew:         Well, you know… [Laughs]  

Thomas:         We’ll see.  Maybe I’ll be wrong.

Andrew:         Maybe you’ll be wrong.

Thomas:         Okay.

Andrew:         I think it’s worth starting out, we retweeted this out from the OA Twitter account, it’s theme that we have emphasized.

Thomas:         Let me do the-

Andrew:         Go ahead.

Thomas:         Let me ask you the question that I think even a bunch of liberals like you and I might wonder about, which is: Alright, Andrew.  The Democrats are doing all these hearings and they seem to be behind closed doors, we don’t know what’s going on, it seems like it could be a little shady if I’m making the other side’s argument, here.  Don’t you usually get to see the accusations against you?  And also, just to my layperson memory, I remember from learning about it, the Watergate hearings seemed to be public, a lot of them at least.  There was public testimony in the Clinton impeachment, so what’s going on?  Are the Democrats doing something untoward here?  Are they being too cagey?  What’s the story there?

Andrew:         Yeah, I like that steel-manning of the other side.  So, look, I wanna begin with the idea (I doubt this will last because all pro-Trump arguments are ad hoc arguments).

Thomas:         [Chuckles]

Andrew:         If we can have a robust debate in this country about what due process means, I’m all in favor of that.  If all of a sudden Republicans have started discovering that their new best friend is due process of law, maybe we can-

Thomas:         Yeah.

Andrew:         Like I said, don’t get your hopes up.  So I kinda wanna begin by bracketing this, by noting that process arguments in our nation’s history, while process is important, have always given way to substantive concerns.  The easiest way to think about that is to think about the exclusionary rule.  We agree, it’s super bad (most of us agree) it’s really, really bad when cops violate your rights, so in the 1960s the Supreme Court created a remedy for that process which was the Exclusionary Rule.  If the cops violate your rights in obtaining a piece of evidence then – the old rule used to be they got to use the evidence as much as they wanted and you could sue them afterwards.

Thomas:         Right. [Laughs]

Andrew:         It’s not hard to realize that’s not much of a vindication of your rights.

Thomas:         Yeah, it’s like the judge is gonna frown at them really hard while the judge still convicts you of whatever it was ‘cuz the evidence was acquired unlawfully.  [Laughs]  

Andrew:         Right!  Then you’re a convicted felon trying to sue the police, right?

Thomas:         Yeah, yeah.

Andrew:         Leave aside that that reduces your likelihood of success, it also (and this is where it ties together), that doesn’t vindicate your right of due process.  That gives no incentive for the police to respect those rights.  So in an effort to proactively say “hey, look, we think that this has value,” the Supreme Court said that’s not gonna be sufficient to just compensate you afterwards, some things are non compensatory.  When the police beat you up and rifle through your stuff without a search warrant, that’s irreparable harm, we want to stop that in advance so they created the exclusionary rule.  Almost immediately they gutted the exclusionary rule!  [Laughs]  

Thomas:         [Laughs]  

Andrew:         They did because of this fundamental tension between process and substance.  So the two major exceptions to the exclusionary rule are the good faith exception – that literally means what it sounds like.  If the cops violate your rights but they do so thinking that they were doing okay, they didn’t really mean to, then there’s no harm no foul – I mean, except to you.

Thomas:         [Laughs]  

Andrew:         And the evidence comes in.  So that’s one side of the equation.  There is also the side of the equation, the second major exception, is the inevitable discovery rule and that is what it sounds like.

Thomas:         Right.

Andrew:         In other words, the cops come in-

Thomas:         If they were going to find it anyway or something?

Andrew:         We were gonna find it anyway.

Thomas:         Yeah.

Andrew:         You can create a tortured-

Thomas:         If I remember right, that’s the one that’s gotten pretty loosey-goosey ‘cuz you can just argue, it’s really easy to come up with hypotheticals of why you would’ve found something anyway?

Andrew:         Yeah, this actually goes back to – we did the episode on Alan Dershowitz in the 1990s, was very, very concerned with the neologism that he coined of “testilying” which was police officers being coached to give testimony that everybody in the room knows is a lie and a major chunk of that actually plays into this inevitable discovery rule.  So police would come in and testify, “well, you know, I could definitely smell the aroma of marijuana on the person.”

Thomas:         Mm-hmm.

Andrew:         And it was like, “you could smell it inside the sealed ziploc bag at the bottom of their sock drawer?”

Thomas:         Yeah.

Andrew:         No, you couldn’t, and we all know this.  Everybody would wink and nod and you would then use that lying testimony to say, okay, even though we didn’t have a warrant to search his sock drawer we would’ve gotten one because the cop definitely smelled the scent of pot on his socks.  That’s a real life example.  Take that, the reason I wanted to bracket with all of that is let’s be careful.  [Laughs]  

Particularly if you’re talking to Uncle Frank, Aunt Cathy, this is – the impeachment process – the end consequences of the impeachment process are almost certainly at the very worst that Donald Trump will be removed from office.  He will then be eligible to be criminally prosecuted, but there’s no – we know that what will happen is President Pence will pardon Donald Trump.  Donald Trump is not going to prison.  So the first thing to remember is, let’s not shed too many tears for violations of process that are, the ultimate consequence of impeachment is way less significant than process for an ordinary criminal defendant.

Thomas:         Yeah, you don’t get to be the king of the country anymore. [Laughs]  

Andrew:         Correct.

Thomas:         It’s like the most privilege there could be.

Andrew:         All of that is background to the actual answer, which is, by the way, Donald Trump is getting way more process right now than any criminal defendant ever would. 

Thomas:         Right.

Andrew:         Because where we are is in the investigatory phase. 

Now, you may recall, the investigatory phase for both Nixon and Clinton was handled by the Special Counsel’s Office and all of that stuff was private, was handled by Grand Juries and was not made public to anybody, let alone the opposing sides, until after the report was delivered.  Here we don’t have a special counsel, here we have the investigation being conducted by three separate House committees. 

On those committees are a total of 47 Republicans; 16 on the Intelligence Committee that we’re gonna talk about with respect to the SCIF that was invaded.  This is not a cabal of Democrats meeting in secret and keeping out everybody who’s a Republican.  But even if it were that would be consistent with the way Grand Juries work and the way in which the Clinton impeachment inquiry was carried out. [Laughs]  

Thomas:         Yeah, that makes me wonder why isn’t there a special investigation about this?  I get – is it just strategic?  Because strategically I get it, but is that the only answer?

Andrew:         No, the answer is because the independent counsel law had a sunset provision in it and was allowed to lapse after the Clinton impeachment and was allowed to lapse-

Thomas:         But we had a special investigation for the Mueller stuff – Mueller happened.

Andrew:         We did, yup.

Thomas:         So when this Ukraine stuff happened why wasn’t the instant answer “whelp, Mueller, put those lawyer socks back on, sorry!”  Or somebody, whoever it would be.  May be nice if it was a Democrat instead of a Republican.  Why wasn’t that the response?

Andrew:         So two answers; let me give you the worst one first, which is because the independent counsel statute has been allowed to expire there is no congressional provision to appoint a special counsel.

Thomas:         Hmm.

Andrew:         The way in which Mueller got appointed was because the Attorney General recused himself and then the Acting Attorney General, the assistant Attorney General, acting as the Attorney General in connection with the Russia investigation, Rod Rosenstein, said “okay, I’m not gonna do this myself but pursuant to the appropriate sections of the U.S. code I am authorized to hire outside counsel to help the Department of Justice in its investigation.”  That’s who Mueller reported to, that’s who authorized Mueller, that’s who paid his salary.  That was all internal to the Department of Justice. 

There is no chance that Bill Barr would do anything.  So Congress can’t make Bill Barr do anything.  That’s the difference between the independent counsel statute and being a special counsel which is what Bob Mueller was.  But let me give you then the second answer, which is even if there were I think given the timing that Democrats would look at it and go “yeah, it was great and Bob Mueller was super thorough and blah, blah, blah” and leave aside ultimately how it was packaged to us, which I think – we don’t need to opine any more on that. 

Thomas:         Mm-hmm.

Andrew:         I think Democrats would look at it and go “yeah, we can’t have a two year closed investigation even if that was available.”  That’s why the scope of the latest impeachment inquiry really has been narrowed down because that way you can get through and tell a compelling story in a limited and focused way.  Even if Bill Barr wasn’t a corrupt hack I don’t think it would go that route.

Thomas:         Yeah, okay, makes sense.

Andrew:         Alright, so what was happening here with the SCIF?  The House Intelligence Committee was deposing Laura Cooper, who is the Deputy Assistant Secretary of Defense, and she was being deposed inside a SCIF, a Sensitive Compartmentalized Information Facility.  Why?  We don’t know.  That’s why it was inside a SCIF, right? [Laughs]  This is the Intelligence Committee and the reason you employ a SCIF is to make sure that there’s zero chance, or as close to zero chance as possible, that a hostile foreign power is able to intercept the most sensitive intelligence matters.

Thomas:         Mmm, I see.  And so clearly this was just Democrats in the SCIF, right?  Because the Republicans were outside like “hey, what’s going on in there?  There’s only Democrats in this SCIF” right?

Andrew:         No, 16 Republicans in there.

Thomas:         [Laughs]  

Andrew:         And again, remember, the minority members of the House Intelligence Committee.  This is a really good – I’m glad you raised it.  Only the ranking members, only the majority members, only Democrats on the Intelligence Committee can issue subpoenas and can start the investigatory process.  This is why when we talked about the results of the 2018 midterm elections and there was sort of that brief wave of disappointment when Beto O’Rourke failed to knock off Ted Cruz and then we realized the Republicans were gonna gain seats in the Senate and folks were saying “well, maybe this isn’t a blue wave, maybe it’s not as big a deal.”  You and I went on the air and said look, it’s a big deal. 

Thomas:         Yeah.

Andrew:         The reason it’s a big deal is because-

Thomas:         And you were absolutely right about that.

Andrew:         Well, I’ve been wrong about a lot! [Laughs]  The impeachment of Bill Barr is still, I guess-

Thomas:         Yeah, that’s your worst one, but…

Andrew:         That’s my worst one.

Thomas:         Yeah.

Andrew:         So there is a difference between being a Democrat on the committee, you get to issue the subpoenas, and being a Republican, you don’t.  That’s why it was really, really important for us to retake the House of Representatives.  By the way, that was an issue in the 2018 midterms, Democrats ran on that.  They said if we take back control of the House we’re going to investigate Donald Trump, and by and large the public was like “well that’s a good thing ‘cuz it sure seems like he’s committed a lot of crimes.”

Thomas:         Yeah.  I think that was incredibly important.

Andrew:         Yeah!

Thomas:         Unbelievably important.  The counterfactual in which we didn’t win at least the House back in 2018 is, I think, a nightmare.  It wouldn’t even be – we’d have nothing.

Andrew:         Yes, that is correct.

Thomas:         And also this is the reason why we got years and years of Benghazi hearings forever, right?

Andrew:         Yeah, exactly!  Exactly right.  So the check on – so all of this, I love you bringing up Benghazi.  The check on House investigatory oversight gone awry is the political process.  Representatives are re-elected every two years.  They’re running all the time!  If the public generally perceives that a partisan House has gone too far in exercising its powers, the public starts voting those people out.  When you talk about process, the first check is the political system, the second is that while the ability to direct the investigation is still under the control of the majority party, the minority members are there!

Thomas:         Yeah.

Andrew:         You still serve on the committee.

Thomas:         This is not the “No Homers Club” from The Simpsons.

Andrew:         [Laughs]  Right.

Thomas:         It’s only Democrats in there, nobody else!

Andrew:         We get one.

Thomas:         There’s one Matt Gaetz in there and they’re like, “sorry, we mean no Matt Gaetz’s is the thing” and Matt Gaetz is standing outside like “aw.” [Laughs]  

Andrew:         I would pay any amount of money for the House of Representatives to start a “No Matt Gaetz Club.” 

Thomas:         [Laughs]  

Andrew:         Anyway, so a tiny bit more on SCIFs just from a technological standpoint, I’m going to link [Chuckles] there is a 174 page technical manual.

Thomas:         Nice.

Andrew:         Put out by the Director of National Intelligence, I skimmed it I will be honest with you, I did not read all 174 pages.

Thomas:         Is this how I should build by recording studio?  As a SCIF just for fun?

Andrew:         You should!

Thomas:         [Laughs]  

Andrew:         Then I’m gonna include, I went looking.  I’m gonna include an article from Wired magazine, again, not a political magazine, but that really breaks down what those technical specifications are meant to do. 

So the room has to be RF shielded, Radio Frequency shielded.  That prevents stuff from going in and out, radio signals from going in and out.  The way in which you do that is by putting a ton of metal in the wall.  The walls are then stuffed with sound attenuation material, that sounds like stuff you’ve got in your studio, and topped off with an acoustic sealant.

Thomas:         Nice.

Andrew:         That sounds kinda delightful, yeah.

Thomas:         Yeah.  That’s why I need – ah!  I wish I had a separate little – some people have that for their studio, a separate little – what’s the word I’m looking for?  Just a detached little room or whatever?  I would do all this just for fun, it would be amazing.  No Matt Gaetz’s are gonna interrupt my recordings!! [Laughs]  

Andrew:         And if you did, if you did create something akin to a SCIF, it is – I want you to think about the airlocks in 2001.

Thomas:         [Laughs]  

Andrew:         It is information – no seriously, they use, to bring in outside information into the SCIF or from one SCIF to another, they seriously put it in a special bag. 

Thomas:         Hmm.

Andrew:         Everything, because that is the exception to the general rule.

Thomas:         Then they have to put whoever was testifying in a bag and like [Laughs] just toss it in the middle of the SCIF?  Alright, come out, okay, let’s hear your testimony!

Andrew:         So here’s the thing, everything that gets said or played or done in the SCIF stays locked inside the SCIF unless there’s a special dispensation.  That’s because it wouldn’t make any sense – think about it.

Thomas:         Yeah.

Andrew:         This is like having a three-layer encrypted password and then it’s written on a post it stuck on your monitor.

Thomas:         [Laughs]  Right.

Andrew:         That doesn’t do you any good!  So if you go inside the SCIF and you get all the super sensitive information and we know – here’s the big thing from a technological perspective.  We know that hostile foreign powers are trying to eavesdrop on the SCIFs. 

Thomas:         Yeah, Matt Gaetz!  [Laughs]  

Andrew:         Yeah!  They stick out.  So they’re trying to hack that information, so if you could just come out with a piece of paper in your binder that summarizes – well that would defeat the whole purpose in the first place.

Thomas:         Mm-hmm.

Andrew:         Again, I just wanna emphasize, there’s a 174 pages describing how you have to build this thing.  The most famous SCIF is the situation room in the White House, Barrack Obama apparently had a little tent that you could set up a portable SCIF.

Thomas:         Oh, yeah, when they’re travelling!  I’ve heard a lot about that.

Andrew:         Yup!

Thomas:         Like if you’re in a hotel room the President’s staff, they have to set up this, like – I don’t even know, for some reason it made me think of E.T. when they have the-

Andrew:         Yes, right! 

Thomas:         Plastic everywhere.

Andrew:         Exactly right.  So there’s one at Mar-a-Lago ‘cuz Donald Trump’s always at Mar-a-Lago.  This is an ordinary and normal part of how you secure your most sensitive information from hostile foreign powers that are trying to eavesdrop on that most sensitive information.  What happened was America’s dumbest congressman, Matt Gaetz (and there’s a lot of competition for that spot).

Thomas:         Yeah, I was gonna say!  Did he win that?  Okay, good for him.

Andrew:         [Laughs]  Yeah. 

Thomas:         Tough! [Laughs]  

Andrew:         Barged in with a coterie of idiots behind him carrying cell phones!  One of them tried to live tweet out the proceedings from inside the SCIF.  A cell phone is the very, very worst thing you can bring inside a secure area, because cell phones can have malware on them, can have Trojan Horses, and can easily – I just want you to think about, [Laughs] go back to Hillary Clinton’s emails being stuck on a private server and all of the crocodile tears about how hard it was going to be – how easy it was going to be to download secret information by hacking into the private server.  Turned out not to be the case.  These idiots walked in with phones!  With cell phones!

Thomas:         Yeah.

Andrew:         Yeah, so anyway.

Thomas:         Then I sent you, ‘cuz I saw a tweet that was “oh look, now they’re trying to backtrack.”  These idiots realized “oh, I just broke 7,000 rules and laws.’

Andrew:         Yup.

Thomas:         So a few of them, and I really wanted to get your opinion-

Andrew:         [Cackles]

Thomas:         -on whether this matters or is real.  A few of them after this tweetstorm where they’re like “we just barged in!”  They put like “oh, tweet sent by staff outside the room.”

Andrew:         [Laughing] Tweet sent by staff!  [Cackles]

Thomas:         Oh, that wasn’t me, that was the staff outside of the SCIF, definitely they stayed right on the border.

Andrew:         The “Shaggy it wasn’t me” defense.  I love that.  Here’s the law Matt Gaetz broke.  It is obstruction of justice. 

Thomas:         Huh.

Andrew:         It’s really, really straightforward.  18 U.S.C. § 1505, “whoever corruptly or by threats or force” and there’s arguably force, there certainly is corrupt intent, “influences, instructs, or impedes or endeavors to influence, instruct, or impede, the due and proper administration of the law or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by any committee of either House, shall be fined and imprisoned not more than five years.” 

They barged into a deposition, delayed a legitimate deposition by five hours.  You wanna go through the rest and we could apply the same elicit access to confidential information and go through all of the analysis we did on Hillary Clinton’s emails, which was episode 13.  We could do that but it doesn’t matter.  Even without the SCIF, even without the possibility, I would say maybe even the likelihood that some top secret information has been compromised as a result of these clownhorns, you wouldn’t need that! 

You have a straightforward violation of the law that occurred when they broke into a deposition and created a circus.  Yeah, the fact that the deposition eventually went forward, don’t take legal advice from a podcast or anything, but something you really don’t wanna try and do is show up, prevent Congress from doing its job for five hours, and then use the excuse of “well, eventually you did that.”  That is not going to keep Thomas Smith out of federal prison.

Thomas:         [Laughs]  

Andrew:         It will probably keep Matt Gaetz out of federal prison, because again-

Thomas:         Yeah, let’s transition to the part where nothing matters and justice doesn’t actually happen to these people.  How do we, uh …

Andrew:         So the statute of limitations on this crime is 3 years.  I do not believe Bill Barr will be Attorney General in 3 years.  Right now it’s a federal crime, it would have to be investigated and prosecuted by the Department of Justice.  If your-

Thomas:         But we have a cool system where they can just not if they don’t feel like it.

Andrew:         Yeah.  Look, that is what will happen.  There is zero chance the Department of Justice – they will be – this is a case where your sternly worded letter is the correct kind of scoffing.  This is a case where there will be sternly worded letters sent to Bill Barr demanding that the Department of Justice investigate these tactics, and Bill Barr, dishonest corrupt hack, will say “well, the whole system is corrupt, you’re out of order!”  He’s gonna make up some nonsense, it will not get investigated. 

Donald Trump will not be in power forever, and I don’t believe he will be President in two years.  Those crimes will still be live.  So there you go.  Clear criminal violation, nothing will happen because our Department of Justice has been hijacked by the most corrupt Attorney General in American history.  This is why he and Donald Trump need to be impeached and removed from office.

Thomas:         Yeah, it’s just one more thing we have to remember.  Everybody put it on their list, okay?  We all need to remember all the things we have to do, a giant checklist once Trump is no longer in office.

Andrew:         Yup!

Thomas:         Frankly it’s too much, there’s just no way we’re gonna remember it all, but this is one of those things.

Andrew:         This is one of those things. 

Thomas:         Okay, well we’re going to hear about Taylor’s testimony after this break!

[Commercial –]

Yodel Mountain – Due Process and Closed Door Testimony

[Segment Intro]

Thomas:         Andrew, this was pretty huge.  A lot of people talking about this testimony.  I think we just have access to the opening statement somehow, right?

Andrew:         Yes.

Thomas:         But I don’t think we have it all?  Okay.

Andrew:         Yeah.  That is correct.

Thomas:         Now here’s a question, and obviously get to what you’re gonna get to, but also do you think it’s the intention – and I could have asked this earlier – but do you think the way this is going to work is get all this testimony behind SCIFs, behind closed SCIFs and all that and then get your ducks in a row and do it again but publicly?  Is that how it’s gonna be or is it just gonna be confidential and then they’ll do an impeachment vote?  What do you think they’re gonna do there?

Andrew:         I think that’s an excellent, excellent question and I think it’s going to be the former.  If you’re making an analogy, and I am, I would say that what the three congressional committees is are doing is sort of akin to taking depositions in a civil case.  This is the fishing part of the expedition.  Again, Republicans are gonna seize on that and be like “this is fishing expedition, this is a witch hunt!”  That’s what you do when you’re figuring out your case.

Thomas:         Yeah.  Hypothetically you should want that!  Because what if, hypothetically, there was nothing here (which is not the case) but let’s pretend there was nothing here, well then all you’ve done is held secret, secret, top-SCIF secret testimony, then you’re like “oh, turns out Trump’s a great guy, nothin’ wrong so we’ll just not have the impeachment vote,” and then you haven’t publicly called into question his reputation and all that, right?  Isn’t that part of the reason they’re doing it this way?

Andrew:         I could not have said that better myself so I will not try. 

Thomas:         [Laughs]  

Andrew:         Yeah!  No, look, it is – and I’m gonna make a liar out of myself as I’m about to restate that in more words.

Thomas:         Go ahead!

Andrew:         [Laughs]  

Thomas:         Yeah, put it into smart Andrew-ese!  That’s fine! [Laughs]  

Andrew:         No, that’s 100% correct, that’s the whole point of the process.  That’s why, as we retweeted back out, impeachment is due process!  [Laughs]  

Thomas:         It’s like if I was being investigated for, like, something just totally weird like streaking or something and then the investigators are like quietly secretly asking my neighbors like “hey, did you see, was Thomas just runnin’ around streaking?” And I’m like [Shouting]“Woah!  Where’s my due process!?  Can you announce this to everybody?!  Tell everybody the accusations and do these interviews with my neighbors publicly, please, so I can have some due process!”

Andrew:         [Laughs]  Then, turns out false, but you know-

Thomas:         [Laughs]  

Andrew:         You never live down-

Thomas:         Everybody thinks I was! [Laughs]  Yeah.

Andrew:         Everybody thinks of you as Thomas Smith, oh yeah, from the waist down Thomas Smith.

Thomas:         The streaker, yeah! [Laughs]  

Andrew:         Yup!  Alright, so that’s all correct and that is what is going to happen.  So the Democrats in full view and with knowledge and participation by Republicans on these committees, are conducting what are essentially depositions, they are figuring out the testimony that is there, and then when they have either direct evidence in a way that is easily explainable to the American public of what specific crimes for which Donald Trump needs to be impeached, then they will bring back the key witnesses to deliver that testimony as succinctly as possible. 

Remember, by the way, in the Clinton impeachment there were only three witnesses who testified.  Those witnesses testified via closed-circuit television and were not cross-examined live, so I’m sure we’ll talk about that if and when there is an actual impeachment vote, an impeachment hearing, but it’s important to remember that the presentation was one-sided in our most recent impeachment in American history. 

Thomas:         Yeah, also another tidbit in the Nixon hearings, I heard that – remember the famous one where the guy reveals he might have this taping system, that took place twice.

Andrew:         Yeah!

Thomas:         He revealed that in a secure, in a secret hearing, and then did it publicly again.  So I guess that’s the way to go. 

Andrew:         Exactly right. 

So what do we know with respect to Taylor?  Let’s talk about the legal issue to which he can speak upfront and then unpack what we know about his testimony working backwards from that.  You’ve seen that the characterization of Taylor’s testimony is “was there a quid pro quo.”  Again, this is where the latest round of defense is going to be with respect to Trump’s conduct, is “No quid pro quo, no quid pro quo.  The President said it wasn’t a quid pro quo, so it’s not!” 

That’s not the way it works.  [Laughs]  You may be surprised to know that the statute does not use the phrase “quid pro quo.”  This is, again – we’ve talked about this in previous episodes – this is 18 U.S.C. § 201, it’s the bribery statute.  This is subsection (b)(2) that applies to Trump.  It is super straightforward.  It says “whoever, being a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to do any of those things, anything of value, personally or for any other person or entity in return for being influenced in the performance of any official act is guilty of bribery.” 

So the quid pro quo is “did you seek, receive, accept, or agree to receive or accept anything of value?”  That’s all the test is.  So I think that what’s being done here by the Republicans (and I just wanna make sure that our listeners are out in front of this) is similar to the effort to control the narrative by saying “no collusion.”

Thomas:         Yeah, exactly.  I was gonna say that exact same thing.

Andrew:         Right! [Laughs]  

Thomas:         Collusion all over again.

Andrew:         Yeah.  Quid pro quo, Latin “this for that,” we’ve already seen the first wave of dishonest hacks.  When Matt Gaetz breaks into the SCIF he’s just a moron.  That’s easy to say, well okay, he’s just an idiot doing idiotic things. 

When Ted Cruz says a quid pro quo needs to be an explicit agreement to do X in exchange for Y, Ted Cruz is lying.  Ted Cruz knows what the bribery statute requires, and you can damn well bet that if it were Hillary Clinton Ted Cruz would be out there very publicly saying “look, quid pro quo is a shorthand for what the statute requires, what it explicitly says is it requires you to get or ask for anything of value in exchange for you doing or being influenced in the doing of anything that’s part of your job.”  That’s what it comes down to.  We’ve talked about how the Bob McDonnell case before the Supreme Court made it very, very difficult to prove many kinds of bribery.  That’s because the hard part is proving being influenced in the performance of an official act.  That’s the easy part here!

Thomas:         Yeah.

Andrew:         You do not need – and, again, this is sort of the bottom line – you do not need to show an agreement.  I’m thinking of the Beavis and Butthead movie where [Laughing] the police officer is having the wire on Beavis, “we need you to say I want to offer you money in exchange for sex otherwise it doesn’t count.”  You do not need a secret recording of Donald Trump going “I need you to do this in exchange for this.”  That’s not what the law requires.

Thomas:         But what’s weird is we have a phone call in which he says-

Andrew:         We do!  We do!! [Laughs]  

Thomas:         [Laughs]  

Andrew:         Thanks for stealing my punchline! 

Thomas:         Yeah.

Andrew:         We happen to have that! 

Thomas:         Yeah.

Andrew:         But we wouldn’t need it.  So keep that in mind-

Thomas:         Can I ask you this on that topic, though?

Andrew:         Mm-hmm?

Thomas:         I have seen some talk about would it be – okay, so I guess a couple layers to the question.  Would it matter if somehow – and this has been another one of the Republican defenses – would it matter if he was only offering the White House visit versus the military aide?  Is there a distinction there and if there is, is it one that’s actually legally relevant or is it just an image distinction?  Like it’s gonna be easier to say “well, it was just a White House visit, come on this isn’t really that big of a quid” I guess.

Andrew:         [Laughs]  

Thomas:         Or a quo.  One or the other.

Andrew:         Yeah, actually that gets to … So let me answer the question first.  There would be, in my view, a distinction in bringing the bribery charge that I just described if the only part of the quid pro quo was the White House visit because that would then potentially run afoul of the performance of the official act part of this.

Thomas:         Hmm.

Andrew:         Because the McDonnell case makes it clear that just access, just generically being a scumbag – and, remember, McDonnell was one of the worst most cartoon-level super villains in terms of being a scumbag that you can imagine.  His wife got fur coats and he got driven around in a Ferrari and he brought in con artists and gave them entrée into the Virginia legislature and gave them obvious input and thumb on the scale to Republicans in the Virginia legislature of “hey, you wanna curry favor with the governor you gotta do what these guys want” and the way those guys got access was by directly giving Bob McDonnell suitcases full of money and expensive gifts, which seems like bribery, right?  

Thomas:         [Laughs]  

Andrew:         That seems like the kind of thing for which you should go to jail.  The Supreme Court ruled nine to nothing that just introducing folks around is not the performance of an official act.  So yes, that’s why that argument is being advanced. 

I will tell you Taylor’s testimony, in my view, the really damaging aspect of Taylor’s testimony is not connecting up the actual official act part.  We’ve already seen the potential for ambassador Sondland to walk back the question of “well, you know, I didn’t say that it was definitely going to be, we were definitely gonna withhold the aid, all I said was” and there were various pretextual alternative statements, you might say.  Where I think Taylor’s testimony was likely useful – again, extrapolating from his statement – is much more in terms of setting the picture of demonstrating the corrupt intent. 

Here’s why.  Let’s start with is there the performance or influence in the performance of an official act?  I actually think, if Republicans are gonna try and make that argument, that it is a loser a of an argument because the law is super-duper clear that the President did not follow official protocol in terms of directing Office of Management and Budget to withhold release of congressionally authorized aid to Ukraine.  That law is 31 U.S.C. § 1512.  This is part of the Congressional Budget and Impound Control Act. 

There’s a related provision, 2 U.S.C. § 683, that does allow the President to withhold some or all of certain funds, but that law requires you to make certain procedural findings first.  So section 683, subsection (a) says “whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided, then the President shall transmit to both Houses of Congress a special message specifying” and then there are five things.  The amount that he proposes to rescind, the account, department or establishment of the government to which such budget authority is available, the reasons why it should be rescinded, to the maximum extent practicable the estimated fiscal, economic, and budgetary effect of the proposed rescission, and all the facts and circumstances around that determination. 

Then subsection (b) says “any amount proposed to be rescinded in such special message shall be made available for obligation by the executive agency unless within 45-days Congress passes a rescission bill rescinding all or part of the amount proposed to be rescinded.”  Now let me unpack that a little bit, I know that was a lot of legalese all at once!  What this means is, Office of Management and Budget cannot set policy.  They can’t say “oh, there’s a transition in Ukraine, we’re not sure whether our money is gonna be…”  When congress directs funds to be spent, the executive agency cannot say “yeah, well, pfft congress!  What do they know?”

Thomas:         Yeah.

Andrew:         Congress has the power of the purse.  That was that first statute I cited but did not read to you because it’s super long and boring.  31 U.S.C. § 1512 says “you gotta spend the money that Congress tells you to spend and you are prohibited from setting agency policy.” 

Thomas:         I think there should be an actual literal United States purse that they carry when they pay stuff.

Andrew:         [Laughs]  I agree with that!

Thomas:         I have the power of the purse!  Here, I got a bunch of gum in here…

Andrew:         [Laughs]  You gotta put it on the conveyor belt when you go through security.

Thomas:         Yeah, hold on, I’m gonna pay these congressional bills, one sec hold on just let me dig through my purse here.

Andrew:         So the importance of these two statutes is that even if you wanna make a Bill Barr defense, even if you wanna say “well, when the President does it it’s not illegal,” that’s not true!  That’s not true here because the President didn’t do the thing that the law requires him to do!  He did not make a determination that there was any reason to rescind or hold up the Ukraine funds, he did not send a special notice to Congress, he did not outline his reasons.  None of that happened. 

So nobody is talking about 2 U.S.C. § 683 yet.  [Laughs]  

Thomas:         Yeah, they’re all talking about 3 U… S… C… 870… I dunno.

Andrew:         [Laughs]  No but look!  In legal circles that is the next item up to be discussed because while Republican sycophants are crafting “oh well the President just gets to sort of do what he wants,” that isn’t true. 

The President could have legally followed the procedures and moved to rescind part of the aid to Ukraine, but he has to do it in public.  He has to transmit what’s called a (quote) “special message to the congress” and it has to comply with the five subcomponents of the law that I talked about.  He didn’t do any of that, so at the end of the day, I don’t think the official act is going to be the problem.  And when you look at Taylor and you look at his testimony, again, from his opening statement, to me what jumped out was the fact that from the beginning Taylor is going to testify that the United States was running a shadow operation in Ukraine. 

The four people he names are special envoy Kurt Volker, EU ambassador Gordon Sondland, Rick I-Can’t-Count-to-Three Perry, and Rudy Giuliani.  That, again, trying to predict what plays with the American public is a challenge.  It’s been a challenge for the past three years.  I think it’s not hard to understand that the President took his personal attorney and the dumbest guy in his cabinet and was undermining the appropriate channels for conducting diplomacy in Ukraine.

Thomas:         Can I ask a clarifying question? 

Andrew:         Yes.

Thomas:         Are you saying, is this another law he violated, or are you using this as proof that he violated the bribery law?

Andrew:         Yes!  It’s the latter.

Thomas:         Okay.

Andrew:         It’s the proof of the corrupt intent. 

Thomas:         So it’s not another crime?

Andrew:         No.  It is all part of the bribery, but  remember when we went through volume II of the Mueller report that part of the difficulty in prosecuting these sorts of crimes is how do you demonstrate corrupt intent? 

We saw, from Mueller, from career-prosecutors, one of the ways that you demonstrate corrupt intent is by showing that people who were doing things that might have been lawful did them covertly, changed the rules, had odd weird processes.  All of that are the kinds of things that in ordinary cases, in garden-variety criminal cases, go to the jury to say “well, ladies and gentlemen of the jury, you can use your own judgment to determine when, after this particular phone call, all of the records were locked down, stored in a secret server, and all copies were deleted, whether that’s evidence of corrupt intent or not.” 

Now maybe it just so happened that the really bad damaging phone call they also failed to – but if you’re a juror and you’re not an idiot we allow you to use your own judgment.  I mention the phone call not just because that is the one piece of information we have from the whistleblower complaint, but also because Taylor testified as to that July 25th phone call.  He said “I was chief of mission to Ukraine” and he received no readout, a summarized transcript, of that phone call.  That violated normal protocols and he said that he found it odd.  He then said the Ukrainian government issued a (quote) “short cryptic summary of the call.” 

So Taylor went and spoke with a national security council official about the call who said [Laughing] (quote), “It could’ve been better.” (End of quote). 

Thomas:         [Laughs]  

Andrew:         [Laughs]  I like that one!  And told him that Trump wanted Zelensky to meet with Giuliani or Bill Barr.  Taylor never got a summary.  Then after that, and we don’t – the details of his opening statement are publicly available, so we don’t need to continue to read it, but I will tell you that in my view this is the testimony for which I think Taylor will be called upon in the event that there is a formal impeachment investigation and that Taylor is a witness.  It will be “hey, look, I’m the guy in Ukraine.” 

By the way, Taylor specifically took the position in June of 2019.  He was in the public sector, he was at the United States Institute of Peace, he was the executive vice president, he was brought in to run the United States foreign policy with Ukraine in June of 2019 and he had a lengthy sit down with Mike Pompeo and said “I will take this job assuming that the United States does not change its policy with respect to Ukraine since 1991, since Ukrainian independence.  That we support Ukraine as against the Russians.”  Pompeo (quote) “assured Taylor that the U.S. still supported Ukraine.” (End quote).  Last point on this – so here’s the guy, very sober diplomat. 

Will he be tarred as a Democrat?  Probably.  In the alternative universe in which lifelong Republican Robert Mueller is a Democrat, you will be able to say that Bill Taylor is a Democrat.  He was legislative assistant for Senator Bill Bradley in New Jersey, he was appointed special coordinator for Middle East Transitions in 2009 by Barrack Obama, but that doesn’t really survive any kind of rational scrutiny. 

He was made U.S. ambassador to Ukraine in 2006 under George W. Bush, he is a West Point graduate.  You know, he’s a military guy.  This is not somebody who is working for the Bernie Sanders campaign, he’s just a career diplomat.  I could add a little bit more about his bio, he’s got a Masters in Public Policy from the only school that matters, he was top 1% in his class, but this is a military guy, served in the infantry in Vietnam, earned a bronze star in Air Medal 5 for heroism.  I don’t even know what that is. 

Thomas:         Hmm.  Hair Metal 5?

Andrew:         [Laughs]  That I know what that is.

Thomas:         I’ve only ever seen Hair Metal 2 or 3.  I’ve never seen that level of Hair Metal!

Andrew:         [Laughs]  Yeah, that’s uh-

Thomas:         Incredible.

Andrew:         It’s for the mashup of Wasp and Striper.  It’s pretty amazing.

Thomas:         [Laughs]  

[Commercial –, promo code “lawpod” for 20% off your first order]

Andrew:         No, look, he was appointed ambassador to Ukraine in 2006.  That Obama appointment as Special Coordinator for Middle East Transitions was designed to get him out of the role of ambassador to Ukraine and install somebody else who was more favorable to Obama in ’09.  Again, he left government service in 2014 in the middle of the Obama administration and was brought back by Mike Pompeo, so, you know, not a crazy leftist.

Thomas:         Yeah.

Andrew:         But the race to discredit him is, yeah.

Thomas:         Anyone who doesn’t unquestionably support Trump in everything he does and praise him as a genius becomes a Democrat.

Andrew:         Yup.

Thomas:         It’s just pointless, there’s not logic to it.

Andrew:         There is not.  So lots more.  His statement is disturbing.  It is somebody who, when you read it and you know the background, this is somebody who cares very deeply about the United States geostrategic interests, is very skeptical of Russia, has the 2012 Mitt Romney Republican Party platform position that views Russia as the greatest threat to the United States and wanted to be involved in Ukraine to support Ukraine as a bulwark against Russian interests. 

That’s why he was there, that’s why he agreed to go back, and he went back and discovered things that he found disturbing.  The President’s personal lawyer and Rick Perry running shadow foreign policy ops and holding the government of Ukraine hostage over political favors and it bothered him.  That’s why he’s testifying.  So that’s where all of this fits in to the impeachment investigation.  His testimony, from what we can tell, relevant to those elements of the bribery statute and there you go.  That’s your medium dive Yodel.

Thomas:         Yeah.  Everything I’ve seen makes this testimony sound like it’s the end and very serious.  Is that your impression?  Then does the fact that you’ve got these clowns marching onto the SCIF affect how you view Republicans reaction to this?  Or is it just, that’s a group of people that’s so diehard anyway that we’re never gonna get them even if there’s enough Republican support to actually convict Trump?  What do you think?

Andrew:         Yeah, wow.  [Laughs]  I don’t know how to answer that.  My gut feeling is this feels like desperation.  It feels like, okay, this is bad but you know what?  We could see that desperation has worked, inexplicably, for this President already.  We called it out, we went through the “crime” that Bill Barr committed in releasing his (quote) “summary” of the Mueller report.  That was – and I’m using “crime” in scare quotes, it’s not perjury because it’s not official testimony, but I’m sure I could find some actual crime that it was – but it was definitely inappropriate conduct for the Attorney General.  It was easily proven false, it had the kind of stench of desperation about it, and they got away with it.  So I don’t know.  It feels like the same thing here.  It feels like a kind of “holy clownhorn, this is super bad, let’s throw everything at the wall and see what sticks.”  By the way, that’s worked out pretty great so far, so…

Thomas:         Yeah, but maybe this is such an easier compelling story and you don’t have to have Bob Mueller doing everything he can to prevent impeachment but still do a report.

Andrew:         Yeah!  The decision on whether this constitutes a crime, a high crime and misdemeanor, will not be usurped by Bill Barr in this case.

Thomas:         Yeah.

Andrew:         That, I think, gives us a lot more room for optimism and you know, maybe this is a good way to wind it down, [Sighs] this stems from one of the conversations that Ashley shared in the Opening Arguments Facebook community. 

I think kind of the next phase of this is when Republicans move to the line of “okay, fine, you’ve demonstrated that there were crimes, but why should I care?”  That’s a hard one for me because you’ve demonstrated the President has committed a crime, but why should I care is a really hard statement to evaluate!  [Laughs]  

But that’s what we need to be thinking about in terms of how to make that salient and how to say – it’s why I spent a lot of time the first episode we did on Ukraine in talking about the actual situation on the ground there, and I wonder if that isn’t the way to make that salient?  This is a United States ally that is the subject of a 5 year war that, by the way, is happening because of the bipartisan work we did getting a pro-Russian stooge elected President of Ukraine, and since then has 12% of its territory occupied by Russian troops.  Who, by the way, have shot and killed tens of thousands of Ukrainians. 

The idea that Trump is holding foreign policy hostage for his personal ends should be enough, but this is even worse than that.  This is not “oh, we didn’t send an appropriate aid package to France.”  This is a country that desperately, where people are being killed, where its territory is being occupied by the actual Russian army and you have Trump going “well, we’d love to help you out but first you’ve gotta manufacture evidence about a debunked conspiracy theory from Q-Anon about the 2016 election.”  Are you kidding me?!  Sorry, I’m on the soapbox again.

Thomas:         Alright, well it’s time to thank our new patrons, our First Timers over on, enjoying all the goodies.  Law’d Awful Movies, that came out pretty recently, that’s a good one check it out, and the bonus episodes, all the good stuff!  And I think it’s your turn to start, Andrew.

Andrew:         Yeah, I should be dropping yet another bonus patron episode, this one featuring my son who just turned 17, so a little more thoughts on debate.

Thomas:         Ooh.

Andrew:         People seemed to like the last one so lots of cool stuff out there.

[Patron Shoutouts]

Thomas:         We will be caught up next week!  We didn’t quite make it.

Andrew:         Wooo!

Thomas:         We will finally be caught up thanks to all the new patron love, you guys are the best.  I hope you’re enjoying all the goodies!  Now it’s time for Thomas Totally Nails the Bar Exam, T3BE.

T3BE – Question

[Segment Intro]

Thomas:         Here we go.

Andrew:         I love that level of confidence!  Alright, Thomas – you’re on a pretty good winning streak right now so let’s hope that continues.  Thomas, an innkeeper who had no previous experience in the motel or commercial laundry business and who knew nothing about the trade usages of either business bought a motel and signed an agreement with a laundry company for the motel’s laundry services.  The agreement was for a term of one year and provided for (quote) “daily service at $500 a week” (end of quote).  From their conversations during negotiation, the laundry company owner knew that the innkeeper expected laundry services seven days a week.  When the laundry company refused to pick up the motel’s laundry on two successive Sundays and indicated that it would never do so, the innkeeper cancelled the agreement.  The laundry company sued the innkeeper for breach of contract.  At trial, clear evidence was introduced to show that in the commercial laundry business, daily service did not include service on Sundays.

Thomas:         Interesting.

Andrew:         So is the laundry company likely to succeed in its action for breach of contract?  A) No, because the laundry company knew the meaning the innkeeper attached to daily service and therefore the innkeeper’s meaning will control; B) No, because the parties attached materially different meanings to daily service and therefore no contract was formed.

Thomas:         Hmm.

Andrew:         C) Yes, because the parole evidence rule will not permit the innkeeper to prove the meaning he attached to daily service; or D) Yes, because the trade usage will control the interpretation of daily service.

Thomas:         So this is very interesting.  It seems very clear that these two people who formed the contract had different ideas of daily service and it does add in from their conversations during negotiations the laundry company knew that the innkeeper expected laundry services 7 days a week. 

So this is one of those, if I’m just trying to be a rational guy answering what I think the law should be, I think it’s pretty skeezy to form a contract when you know that the other person has a different idea and then you’re negotiating price based on that I’m sure, and you’re not gonna do the laundry service on Sunday, so seems like I would want it to be a “no” action, as in no the laundry company isn’t likely to succeed, but I dunno, let’s see.  I’ll go through these answers one more time.  Let’s see, at trial clear evidence was introduced to show that commercial laundry daily service did not include service on Sundays.  So the norm is that, but at the same time it’s a contract between two people, I don’t know, so we’ll see. 

So A, no, because the laundry company knew the meaning the innkeeper attached to daily service and therefore the innkeeper’s meaning will control.  That’s a plausible answer.  B, no because the parties attached materially different meanings to daily service and therefore no contract was formed.  I kinda like this answer.  I like it better as a “no” answer than A, ‘cuz it makes sense as a principle that if you happen to write a contract that has a phrase in it or a word or a term and you genuinely have different meanings attached to it I think it makes sense to say, then, you didn’t really have an agreement.  So just on a theoretical level I like B. 

C, yes because the parole evidence rule will not permit the innkeeper to prove the meaning he attached to daily service.  I don’t like that.  It’s using parole evidence rule, that’s something we know applies to contracts, but it doesn’t fully makes sense to me.  [Mutters] to prove.  I don’t really think that’s what the parole evidence rule does, not permit someone to prove the meaning they attached to daily service, and also the facts stipulate that they both were aware that this is what the guy meant.  I don’t like C, not in love with that one. 

D, yes because the trade usage will control the interpretation of daily service.  Now that’s the best “yes” answer, so as much as I’m leaning toward a “no” answer I personally would eliminate A and C, who knows if I’m right in that but that’s what I would do.  I think it would be between B and D if I were to pick a “no” and a “yes” answer.  So B, no because the parties attached materially different meanings.  I really like that one, I could see it being D which is just “look, when you write a contract when you’re in this business – look, when you’re in the laundry business we all know what daily service mean.”  That’s plausible that that could just control the interpretation so it’s a toughy. 

I dunno, it’s a coin flip question as most of them are for me.  [Laughs]  Right around 50% success, or 55, but I think there’s enough in here to make me wanna say B, that the parties attached materially different meanings.  It’s interesting that in that answer it doesn’t sound like it matters whether or not the laundry guy even know, it sounds like from that answer that fact wouldn’t matter, because it says the laundry company owner knew that the innkeeper expected laundry services 7 days a week. 

It’s interesting that the only answer that includes that fact would be A because the laundry company knew the meaning the innkeeper attached to daily service and therefore the innkeeper’s meaning will control.  I like the first part of that, I like that the laundry keeper – this is answer A – but I don’t like the second part.  Just because the laundry company guy knew it that therefore the innkeeper’s meaning will control?  That doesn’t seem fair.  I could see some answer that was like “well, yeah, because they knew and he knowingly was trying to get the contract amount under a different meaning,” but I don’t think that, that’s why I don’t like A, the second clause there doesn’t really follow in my mind. 

Anyway, I’m gonna go with [Sighs] it’s tough but I’m gonna go with B.  I think D is a strong answer but I’m gonna go with B and hope that we live in a just society and this poor innkeeper who doesn’t know how things work can be bailed out here because they had materially different meanings for daily service.  Final answer!

Andrew:         Alright!  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 answer, your reasons therefore, and we will pick a person as a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, let’s hope the improbable streak continues.  Thank you so much for listening, everybody.  Thanks most of all to our patrons for making the show happen, we hope you enjoy all the bonus stuff, and thanks to Andrew for Andrewing us as usual, even while he’s sipping Prosecco in amazing locations that we all wish we were experiencing with him.

Andrew:         I wish you were here with me too, Thomas.

Thomas:         He at least descended from his vacation to give us a great episode, thanks Andrew!  We’ll see everybody next time.

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