Transcript of OA328: The Impeachment Inquiry Resolution! (H.R. 660)

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 328, still cruising!

Andrew:         [Laughs]  

Thomas:         I’m Thomas, that’s Andrew, always on a ship, on a boat, how’s it going Andrew?

Andrew:         It is going fantastically well, obviously the time I picked to take a vacation I am pleased that world events decided to take a vacation with us-

Thomas:         Yeah.

Andrew:         -and absolutely nothing is happening.

Thomas:         It’s not like the President’s being impeached or anything like that.

Andrew:         No, no!

Thomas:         Nothin’ major, yeah.

Andrew:         So I have 90-minutes of baseball law for this episode if that’s okay with you.

Thomas:         [Laughs]  Well there was quite a controversial call last night that I’m sure we need to sound off on.  I mean it was a 7-2 game, right?  So it didn’t really matter, but still, lots of controversy.  So that’s what we’re doing, 90-minutes baseball law, the replay where the ball might’ve hit the guy, I dunno I was barely watching.  No, not really!  We’ve got a lot to talk about, we’ve got yodeling to do, there’s some guy named Vindman testified, it seems bad, I can’t wait for Andrew’s take on that, all kinds of stuff.  Ooh!  The impeachment inquiry resolution is maybe finally happening, so there’s that.  I can’t wait, we better get to it.  What do you think, anymore announcements-

Andrew:         Alright, let’s get to it.

Thomas:         -or are we good?

Andrew:         Nope.

Thomas:         Alright, we’re gonna get right into it, but first-

Andrew Was Wrong

[Segment Intro]

Thomas:         -a quick Andrew Was Wrong.  I’m told you were wrong about a few things.

Andrew:         [Sighs] Yeah, I was wrong about a couple of things.  First, this is totally indefensible and thanks to my buddy and Yodel Mountain league fantasy football co-player John Budd who points out that in the last episode I confused Leona Helmsley, the hotel magnate, with Marge Schott, the owner of the Reds who was the partial inspiration for the Rachel Phelps character in Major League.  He is 100% correct, I was 100% wrong and I have nothing to say to defend myself in any way whatsoever, I confused two separate evil dead women.

Thomas:         Magnates?  [Laughs]  

Andrew:         Yeah.  [Laughs]  So there we go.

Thomas:         Yeah, I can’t criticize you for this one, I don’t know either of those people so when I saw on the whiteboard Marge Schott v. Leona Helmsley I was like “oh what’s this lawsuit?”

Andrew:         Yeah! [Laughs]  

Thomas:         Schott v. Helmsley, huh?

Andrew:         That would be truly one of those lawsuits where there could be no winner.

Thomas:         Two magnates enter, one magnate leaves!

Andrew:         [Laughs]  Exactly, exactly!  Thunderdome to decide.  They’re both bad, so…

Thomas:         I’ve always wanted to be a magnate, I don’t know what the official requirements are but – I’ve made this joke way back in the day, but I think I could be a Podcast magnate, right?

Andrew:         Yeah, absolutely!

Thomas:         Don’t you think – could be the first.

Andrew:         I wanna be an oligarch on that.

Thomas:         Ooh, oligarch!  I dunno, that sounds too evil though.  Magnate I feel like-

Andrew:         [Laughs]  

Thomas:         Oligarch, I feel like you actively have to be like corrupting government and screwing people over, magnate you probably are too but it sounds better. [Laughs]  

Andrew:         [Laughs]  Alright, you be the magnate I’ll be the oligarch.

Thomas:         One more Andrew was wrong?  [Laughs]  

Andrew:         Yeah, this is a little bit of clarification on this.  On our last episode, in talking about high fructose corn syrup we received a number of responses from dieticians, medical doctors, folks who wanted to write in.  A lot of people had very nice things to say [Laughing] about us, and, you know, for example pointed out – we got a very nice email from one person who has a gastrointestinal sensitivity to high fructose corn syrup.

Thomas:         Hmm.

Andrew:         She says “if I were a beer drinker I could only drink gluten-free beers.  The Budweiser commercials might very well have swayed me to their product.  I’ve gotten very good at reading ingredient lists but if I (quote) ‘knew’ that one variety had corn syrup I likely wouldn’t look at it twice.”

Thomas:         Oh, wow.

Andrew:         So, yeah, a little pat on the back there, that’s to help the medicine go down.

Thomas:         Does this person know, ‘cuz you went through the process and I believe you said in the end there’s no corn syrup in the final product, so this person thinks they would be okay to drink it despite what Budweiser has said?

Andrew:         Exactly right. 

Thomas:         Huh.

Andrew:         We made this – so that was a thank you, but then there were two differing levels of wrongness.  The first, I don’t think that I was wrong on this but apparently I could have made it more clear.  One of the things that Budweiser was doing was intentionally alighting over the difference between regular corn syrup-

Thomas:         Hmm.

Andrew:         -which is just glucose, and high fructose corn syrup.

Thomas:         Yeah, I don’t know the difference between them.

Andrew:         Yeah, well that is the difference.  Non high fructose corn syrup, just good old regular corn syrup, the kind that is in Karo syrup if you have ever bought that for baking purposes – or not! [Laughs]  That is 100% glucose.  High fructose corn syrup has a different kind of sugar, fructose in it.  So I made that distinction at the beginning of the episode, but apparently not well enough so that-

Thomas:         You can blame me, it’s cool, I’ll take the hit on this one.

Andrew:         Alright, good! Good.  [Laughs]  

Thomas:         I was not aware of the difference happening, I accept full responsibility.

Andrew:         Alright, good, well there you go.  So an additional layer of misleadingness is that the product-

Thomas:         For the Budweiser ads, you’re saying?  Not for us.

Andrew:         Yes, for the Budweiser ads, right, that everybody is worried about is the high fructose corn syrup and nobody uses any high fructose corn syrup in the making of the beer process at all.

Thomas:         Gotcha.

Andrew:         So there’s that additional layer.

Thomas:         I mean, not that – would that make a difference?  Again, does it really matter in the process?  [Laughs]  

Andrew:         Well, that gets to a bunch of people who wrote in who were involved in – who are scientists, dieticians-

Thomas:         Hmm.

Andrew:         -who wrote in to say some version of, when I said that high fructose corn syrup is the same as sugar that I’m wrong chemically about that.  This is – I’m gonna read one example, a bunch of people wrote in with this. 

This is from Jeffrey French who says “these two carbohydrates are metabolized differently.  High fructose corn syrup, fructose, is not quite the same as sugar, sucrose.  The differences in the sugars have multiple health consequences, for example fructose is more likely to produce insulin resistance than sucrose.  One of the consequences of this is a reduction in satiety signals,” that is stop eating, “either via insulin or”-

Thomas:         Aah.

Andrew:         -“indirectly through interactions with leptin.”  I don’t know what leptin is, though.  “Further, fructose leads to greater fat accumulation in the liver than sucrose in the same way that alcohol can” and recommends Robert Lustig from UC San Francisco-

Thomas:         Just hearing all these different things that are probably wrong with my body now.  That’s cool.

Andrew:         [Laughs]  Yeah.  Given you’re-

Thomas:         You don’t say alcohol and the fructose that’s in every single product that we eat every day probably?  My liver must look like John Candy by now, pretty much.

Andrew:         [Laughs]  Yeah, given the alcohol consumption plus your level of McDonald’s slash In-N-Out Burger consumption.

Thomas:         Wait, hold on, why is In-N-Out Burger being implicated here?

Andrew:         [Laughs]  

Thomas:         What’s wrong?  Dieticians write in, but that should be totally healthy.  No, I also wanna take the hit on this one because when I say that high fructose corn syrup and sugar are the same I don’t mean that way so I should stop saying that.  What I mean is, in the past – I can’t remember, a couple times this has happened where people have made a big deal about “this soda is from overseas and it has real sugar!”

Andrew:         Right! [Laughs]  

Thomas:         And I taste it and it tastes exactly the same.  There’s no difference to me in taste, that’s what I mean.  Taste-wise it’s the same to me, but that could be different for other people.

Andrew:         Yeah, and I mean it in the social consequences kind of way, which is that because we subsidized corn production in this country-

Thomas:         Mm.

Andrew:         -it is super cheap to make corn syrup and that’s why corn syrup is used as a sweetener in everything.

Thomas:         Yeah.

Andrew:         That is why all of the – if you think about, you and I have kind of similar backgrounds and food choices growing up, but all of that stuff that you think of eating from your childhood is super-duper sweet and that’s because it’s way cheaper to load up cheap food with high fructose corn syrup in this country because we subsidize the production of corn.  So that’s why despite being an incredibly wealthy nation we have a massive obesity problem among our poorest citizens because it’s way cheaper to buy sugar-laden cheap food.

Thomas:         Yeah.

Andrew:         From that perspective I meant that in terms of the health consequences but I’m happy to be corrected on the biochemical process.

Thomas:         Well it sounds like the, yeah, it’s even worse to have the high fructose, so it’s not-

Andrew:         Yeah.

Thomas:         Okay, well that’s good info!  Thanks, smart people writing in, love that.  Alright, I think we’re done shaming Andrew for stuff that I was wrong about.

Andrew:         [Laughs]  

Thomas:         I liked it, it’s nice.  Scapegoat Andrew!  [Laughs]  Andrew Was Scapegoated!  Okay, so-

Andrew:         Always happy to be corrected.

Thomas:         [Laughs]  So I think it’s time for some yodeling.

Andrew:         Yeah, let’s do some.

Yodel Mountain – H.R. 660

[Segment Intro]

Thomas:         Okay, we are yodeling.  Wow, impeachment inquiry resolution?  Why don’t you – are you gonna refresh us?  Because I believe Republicans kinda went all in on “well this whole thing’s a sham ‘cuz you didn’t put it on the right stationary, so this entire – all the crimes Trump has done, he gets away with because you didn’t have the proper forms” I guess?  Then now it sounds like Pelosi is like “okay, we’ll just do the proper forms” and then the Republicans are saying yeah but still.

Andrew:         Yes, that is 100% correct.

Thomas:         Okay, that’s my summary.

Andrew:         Yeah, well, that’s it.  Show’s over, everybody go home.

Thomas:         [Laughs]  Case closed, yeah!

Andrew:         [Impersonation] Case closed! 

Yeah, that is exactly correct.  What happened is pretty much exactly what we predicted a week ago in episode 326, which is as the Republicans focus on process arguments, not to downplay the significance of due process of law which we’ve agreed is important, it makes it very, very difficult for them to mount a substantive defense of what Trump has done. 

So the first round of arguments was, this is not really an official impeachment inquiry because in all previous impeachment inquiries there was a specific vote to create a specific designation and here you got three committees running around, what’re you doing?  That was essentially the argument.  We pointed out two things, which I think have come to pass. 

So let’s cut to the punchline.  As we are recording this the House of Representatives is about to pass H.R. 660 which is a formal resolution coming out of the Rules Committee that directs ongoing certain committees to continue their ongoing investigations as part of the House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Donald John Trump, President of the United States of America and for other purposes.  So that’s the-

Thomas:         Huh.

Andrew:         That’s the header for H.R. 660.  I’m gonna go through – it’s a short resolution and it has a companion rules piece attached to it that is pretty significant.  We’re gonna explain that, but this does exactly what we said would happen, which is the reason why Nancy Pelosi had initially backed off on passing a specific resolution authorizing impeachment was that it would, that you predictably knew that the minute that happened Republicans would say that everything beforehand didn’t count. 

Thomas:         [Laughs]  

Andrew:         Indeed, [Laughing] let’s read, this is from an NBC news article.  “Devin Nunes, Jim Jordan, and Michael McCall of Texas said that they were (quote) ‘disappointed’ that Democrats are trying (quote) ‘to retroactively legitimize their illegitimate impeachment inquiry.” [Laughs]  

Thomas:         Yeah.

Andrew:         So, yeah, they’ve said, oh, we demanded that you pass a formal impeachment inquiry and the minute you do that we said see?  You had to pass a formal impeachment inquiry and you didn’t do that beforehand so none of it counts.  The White House-

Thomas:         But, like, counts for what?

Andrew:         Yeah.

Thomas:         Because we’re not…

Andrew:         [Laughs]  Yeah.

Thomas:         I don’t know what [Laughs]  

Andrew:         I don’t – they don’t finish that sentence, right?

Thomas:         Yeah.

Andrew:         Because they have advanced this argument in the courts and it has been roundly rejected for all of the reasons we have specified on this show, which is that the standing rules of the House of Representatives – rules, by the way, that were last modified January of 2015 when Republicans controlled the House – give the various House Committees the authority to investigate, conduct oversight, take depositions, hold hearings, issue subpoenas, all of those things that they’ve been doing.  It’s all clearly within the constitutional power and prerogative of the House of Representatives so the argument’s nonsense.  Here’s how the White House put it [Laughs] if you wanna hear this!

Thomas:         Mm, can’t wait.

Andrew:         This is the statement from White House Press Secretary Stephanie Grisham, which I always have to be reminded who that is now that it’s no longer Sarah Huckabee Sanders.

Thomas:         Yeah, who is that?

Andrew:         That’s the new White House press secretary.

Thomas:         Okay.

Andrew:         So when you step down from Sarah Huckabee Sanders apparently you go to Stephanie Grisham, who says “the resolution put forward by Speaker Pelosi confirms that House Democrats’ impeachment has been an illegitimate sham from the start as it lacked any proper authorization by a House vote.”  That’s nonsense, by the way, we’re gonna get to that in a second.  “It continues the scam by allowing Chairman Schiff, who repeatedly lies to the American people, to hold a new round of hearings still without any due process for the President.”  That’s all, also, nonsense, which will not surprise you to learn.

Thomas:         We really need – for all of this we need the “I feel dumber for having listened to that.”

Andrew:         [Laughs]  Yes!

Thomas:         Not only did none of that make sense, just nonstop.  Everything he says.

Andrew:         Is that Billy Madison?  I forget which-

Thomas:         I think so.

Andrew:         “At no point in your rambling did you come”-

Thomas:         [Laughs]  

Andrew:         Alright.  So what does H.R. 660 do?  It has four sections. 

The first section says “Resolved that the Permanent Select Committee on Intelligence” that’s Schiff’s committee, “and the Committees on Financial Services, Foreign Affairs, the Judiciary Oversight and Reform, and Ways and Means are all directed to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Trump.”  Notice that we have talked before – so Intelligence is going to take the lead, I’ll explain why that’s important in a second. 

The Judiciary Committee has also been involved, but Financial Services, Foreign Affairs, and Ways and Means have not previously been front and center.  That confirms that at least at this point the potential referral on impeachment is broader than just Ukraine.

Thomas:         Hmm.

Andrew:         At the end of the day, I think Ukraine will still be the straw that stirs the drink, it is going to be the easiest story to tell.

Thomas:         Yeah.

Andrew:         But the House of Representatives very shrewdly – when you include Financial Services and Oversight Reform and Ways and Means you are leaving yourselves open to include things like emoluments and taxes as part of your impeachment inquiry.  So keep that in mind, and notice, by the way, this resolution uses the phrasing “are directed to continue.”

Thomas:         Yeah.

Andrew:         So it is their way of saying, hey look – and this is a very, very common legal device.  They did not use the phrase that the lawyers in the audience are all shouting into their car stereos as they’re listening to this.  That phrase is “for avoidance of doubt,”-

Thomas:         Hmm.

Andrew:         But, you know, you use it all the time as a lawyer.  So the other side will say “well, you didn’t send us proper notice” and my response will be “yeah, I told your client six months ago, the law only requires that if he has actual notice it’s fine, but for avoidance of doubt this letter shall constitute official notice.”  It’s a way of saying, fine, you wanna argue about procedures?  I’m complying with your procedure but I’m not conceding that the argument was correct.

Thomas:         Well I don’t – and what would they even… I know it’s impossible, but under the Republican theory [Laughs] the interpretation, the scholarly interpretation they’re giving, what would happen – like there wasn’t an inquiry officially so then we throw everything away so far?  Is that what we would do?

Andrew:         Yeah, that would-

Thomas:         Then they would interview everybody again?

Andrew:         Yeah, they would say – so for example there are a number of outstanding witnesses that have been served subpoenas prior to this resolution which, like I said, is about to pass any minute now.  So what the White House wants to do is tee up an argument that says all those past subpoenas don’t count, you’ve got to reissue them, which by the way will-

Thomas:         Fine.  You could just do, right?

Andrew:         You could, but when you issue a subpoena you have to build in time for the witness to comply.

Thomas:         Oh, I see.  It’s a stalling tactic.

Andrew:         Exactly right.  They have made this argument over and over again in a variety of cases and they’ve lost every single time.  We’ve talked about this most clearly in the Mazars cases and in particular the opinion written by Judge Mehta, affirmed by the D.C. Circuit, in which the White House argued that Congress didn’t have the authority to request to subpoena Mazars to turn over Trump’s tax returns and every judge except Trump hack and Federalist Society Appointee Neomi Rao in dissent looked at that and was like “yeah, of course they do, what are you talking about?” 

They’ve advanced this argument again and again, it is a stone cold loser in the courts.  It is a stone cold loser with everybody who is not a dishonest hack.  [Laughs]  That doesn’t exclude enough people, but it excludes a lot of Republican of good will.  So this section one also means that the Intelligence Committee is now the lead committee on conducting the impeachment inquiry process.  Again remember that that is functioning akin to a grand jury, they are gathering the information which they will then turn over to the judiciary – this is a spoiler for section 4 of this resolution.  The Judiciary Committee will then vote out formal articles of impeachment. 

But why is it significant that the Intelligence Committee is going to be the lead dog?  That is significant because this committee is 13-9 Democratic and it contains, it has the really, really good distribution of good Democrats on it.  So Adam Schiff is the Chair, Jackie Speier is also on it, Eric Swalwell, Joaquin Castro, Raja Krishnamoorthi, they’ve all been – that’s not to say the other Democrats are terrible, but those Democrats have been really, really good in this process. 

So we have some heavy hitters on the Democratic side, and on the Republican side the ranking member and Trump hack here is our good buddy Devin Nunes.  [Laughs]  

Thomas:         Yeah.

Andrew:         Who’s a crazy person.  The other super vociferous pro-Trump advocate is John Ratcliff from Texas, you might remember him from his completely unhinged statements during Mueller’s testimony. 

Thomas:         You’re gonna have to narrow it down! [Laughs]  

Andrew:         Yeah! [Laughs]  

Thomas:         There were a lot of unhinged statements during that testimony.

Andrew:         That’s true, but this also, the Intelligence Committee contains some Republicans who are not – so Jim Jordan is not on it, Mark Meadows is not on it. 

Thomas:         Hmm.

Andrew:         So the number of people who can turn it into a stunt, Devin Nunes will but he’s crazy even by Republican Tea Party Trump loyalist standards.  Mark Meadows is somewhat effective.  [Laughing]Jim Jordan less so but he’s still better than Nunes. 

Thomas:         Hmm.

Andrew:         And there are a handful of people who have at least expressed some potential concerns.  The two people that I want you to keep your eye on are Chris Stewart from Utah.  Again, Utah is a deep red but an anti-Trump red State.  Trump won it but compared to Alabama Utah has never been super friendly to Trump.  And Will Herd from Texas who asked at least one sensible question during the Mueller hearings.  Look, that’s not a huge bar to clear, but it is a bar. [Laughs]  

So that’s section 1, it authorizes the committees to keep doing what they’re doing and it makes the Intelligence Committee the lead dog.  Then section 2 are The Open and Transparent Investigative Proceedings by the Permanent Select Committee on Intelligence.  It sets forth the authorization of that committee to conduct proceedings pursuant to this resolution and it includes the provision you and I have been begging for.

Thomas:         Oh yeah?

Andrew:         From the beginning, yup.  So the time available for each period of questioning under this paragraph shall be equal for the Chair and the ranking minority member-

Thomas:         Oh!

Andrew:         Yeah, here we go.  The Chair may confer recognition for multiple periods of such questioning, but each period of questioning shall not exceed 90 minutes in the aggregate.  Only the chair and ranking minority member or a permanent select committee employee if yielded to by the chair ranking minority member may question witnesses during such periods of questioning.

Thomas:         [Sighs] Oh thank god.

Andrew:         Yeah!  At the conclusions of questioning pursuant to this paragraph the committee shall proceed with questioning under the stupid ass five minute rule [Laughs] pursuant to clause 2(j)(2)(A) of Rule 11 of the Standing House Committee on Rules.  So, yeah, Adam Schiff can add 45 minutes for each side in rounds, he can add as many of those as he wants and he’s in absolute charge of all 45 minutes and can delegate-

Thomas:         Is he in charge of the order and everything?

Andrew:         Uh-huh!

Thomas:         Okay, here’s my plan.  You go one big chunk, you just go two big chunks, one for us one for them, you do ours first, you get a real questioner who’s gonna take us through everything we need to hear and then because no one knows anything Schiff can just be like “alright, and now you’ve seen that with blah blah blah and we’re done!” Then everyone will turn off their TV-

Andrew:         [Laughs]

Thomas:         -and then he should take like 5 more, leave 5 minutes of empty space there, it’s still technically Democrat’s time.

Andrew:         Oh I love it!

Thomas:         Okay, we’re done, and then leave and then the Republicans get their chance but no one will know because who cares?

Andrew:         I love it.

Thomas:         Because all they’re gonna do is do their upside down world thing anyway.

Andrew:         Yup.

Thomas:         That’s my plan.

Andrew:         So notice the rule expressly permits a permanent select committee employee, and I am pleased to tell you that the Intelligence Committee-

Thomas:         We got hired?!

Andrew:         Close!  Has hired a former partner of mine, Norm Eisen, who you might remember from Eisen painter tribe, one of the core lawyers who has been involved with tracking Trump’s crimes from the very, very beginning, a top-notch lawyer. [Laughs]

Thomas:         Wow.

Andrew:         And somebody who is going to really, really – if he’s the one, now they’ve hired some other lawyers too so I don’t know if they’re going to let Norm do all the 45 minutes, I strongly – Adam Schiff if you’re listening, and you might be!  Let Norm Eisen do the questioning.  He will be really, really, really, really good at it and he has been hired by the committee.

Thomas:         Wow.

Andrew:         Yeah!  So there we go.

Thomas:         Oh my god it’s all coming together!

Andrew:         It’s all – I love it! [Laughs]

Thomas:         Am I still sleeping?  Is this a dream?  Did I-

Andrew:         No!

Thomas:         Am I gonna be awoken to record the real show where it’s like none of this is happening?

Andrew:         No, this is all really, really happening!

Thomas:         Wow.

Andrew:         I’m not gonna go through the exact procedure here, but section 2 also specifies that the ranking minority member may submit to the Chair in writing any requests for witness testimony relevant to the investigation described in the first section, that’s the impeachment investigation, within 72 hours after notice is given for the first hearing.  Any request shall be accompanied by detailed written justification of the relevance of the testimony of each requested witness in the investigation. 

What does that mean?  That means that the Democrats with this resolution have boxed out the argument that Republicans are making, I quoted you from the White House that is 100% a fabrication that says-

Thomas:         Yeah.

Andrew:         -without any due process for the President.  That is what our lying Press Secretary, Stephanie Grisham, said in a published – this is not a Trump tweet, this is an official statement from the White House press secretary that says “it’s without any due process.”  Well start on the bottom of page 3, subparagraph 3-

Thomas:         Oh, the whole thing is due process!

Andrew:         Yes, and specifically-

Thomas:         This is nothing but due process.

Andrew:         Yup.  And it specifically allows the minority member to say “okay, you’re the ones who can issue all the subpoenas,” and this resolution says alright, if you want to call a witness this is the procedure by which you can call a witness.  Now you could argue, and I’m sure Republicans will argue, that Democrats could just refuse to allow them to do that and they could.  So you can say “oh this is an empty shell, they can just refuse,” but these are the rules that were put into place by Republican governing the rights of the minority to conduct oversight when Republicans controlled the House of Representatives. 

This is absolutely the standard process, this is the equal to or better than the rights that Democrats had on the House Judiciary Committee in conjunction with the Clinton impeachment and it absolutely is due process.  Due process doesn’t mean you get to win when you’re in the minority! [Laughs]

Thomas:         [Laughs]

Andrew:         It means there must be a process.  There is a process, there is a public process, and look, if Republicans say “hey, witness X has valuable information that would exonerate the President and Democrats don’t want to call her, and we do,” they have the right to do that.  Look, I want the committee to call said witness.

Thomas:         Well now I’m already going through the possibilities, there’s gonna be some total liar that has-

Andrew:         Yup.

Thomas:         -no accurate information that they’re gonna – and then it’ll be a disaster if we actually do put them on and also a disaster if we don’t, so that’s my next-

Andrew:         Yeah, and look their gonna say “oh and we wanna depose Hillary Clinton,” and that’s why-

Thomas:         [Laughs] That’d be fine.  Bring in Hillary, that’d be fun!

Andrew:         She would be good. [Laughs]

Thomas:         She’s great at these things, yeah.

Andrew:         But, yeah, the Republicans are going to try all kinds of stunts in connection with this, which is why it has to be subject to the approval of the Chair.  The Chair is a Democrat and, look, that’s what happens when you win the House of Representatives.

Thomas:         Yup.

Andrew:         So that is the due process.  Section 3-

Thomas:         We all know that when Republicans say due process, all they mean is due process means people stop being mean to our king, stop being mean to our guy.

Andrew:         [Laughs]

Thomas:         Meanness is not due process to them, that’s equivalent.

Andrew:         No, nope.

Thomas:         Trump didn’t get due process at game 5 of the World Series, people were too mean, not enough due process.

Andrew:         [Laughs]

Thomas:         Before we get to your next bullet I believe we need to take a little break.

Andrew:         Yup!

[Commercial – govmint.com, call govmint at 1-888-201-7080 for a free gold guide]

Thomas:         Okay, I’m in suspense, what’s next?

Andrew:         So what’s next?  Section 3 is just a paragraph, it says the Chair of the Permanent Select Committee, that’s Schiff, or the chair of any other committee having custody of records is authorized in consultation with the ranking minority member, Devin Nunes, to transfer such records or materials to the Committee on the Judiciary.  Then section 4 is what I alluded to at the beginning. 

So 1 and 2 establish that there’s this ongoing investigation, the lead dog is the Intelligence Committee, they will assemble all of this information.  The minority will have certain rights to call witnesses, then when they’re done they will put that together and transmit that record or those materials to the Committee on the Judiciary and then section 4 authorizes the Committee on the Judiciary to then conduct proceedings to vote out Articles of Impeachment.  The crucial part here is that the Committee on the Judiciary is authorized to promulgate additional procedures as it deems necessary for the fair and efficient conduct of those hearings provided that the procedures are not inconsistent with the procedures referenced in the standing rules committee and the Rules of the House.  Then there’s more due process, I’m not even going to go through it, for the minority. 

Alongside this resolution, then – this is a little bit confusing, it took me a while to decipher this.  H.R. 660, everywhere it is being linked, and it will be linked in our show notes, is the 8-page resolution.  In addition to that resolution the House Rules Committee has also promulgated a 2 ½ page document that explains the new rules that they are adopting in connection with the ultimate vote in the House Judiciary Committee to send out Articles of Impeachment.  Did that make sense?  I know that there’s a little bit of confusion there.

Thomas:         [Laughs] Yeah, I think I’m on board.

Andrew:         Okay.  So I’m gonna link this separately, lots of news sites have been quoting from the rules and saying that it is a part of the resolution, it is not.  So pursuant to House Resolution 660 is this document which is the impeachment inquiry procedures in the committee on the judiciary.  The important thing to remember here is this is what is going to happen in a couple of months.  After all the data has been gathered, after the Intelligence Committee has served as the grand jury the Judiciary Committee will then vote out Articles of Impeachment. 

Here’s what they’ll do:  A, initial presentations.  So they will receive at a hearing presentations from counsels designated by the chairs and ranking minority members for the majority and minority of the committee which provides a report, records, or other materials under the resolution that we just talked about.  So, in other words, Adam Schiff by and through his counsel, hopefully Norm Eisen, will make an intro statement, an opening argument if you will-

Thomas:         Hah.

Andrew:         -in favor of impeachment, and-

Thomas:         They really should’ve hired us.

Andrew:         They really should have.

Thomas:         It would’ve been right on brand! [Laughs]

Andrew:         [Laughs] It’s not too late, they still can! 

Thomas:         Ladies and gentlemen for the opening arguments who better than the hosts of the hit podcast!

Andrew:         [Laughs] Hey, we could make this happen.

Thomas:         [Laughs]

Andrew:         Then, again, as if to give more lie to what the White House is saying, let me read directly:  “The President’s counsel shall be furnished a copy of the reports, records, or other materials and any material furnaced to the Committee pursuant to this section.  The President and his counsel shall be invited to attend and observe the initial presentations and the President’s counsel may ask questions subject to instructions from the chair or presiding member respecting the time, scope, and duration of the examination.”  So in other words, Trump and his lawyers will get a copy of everything, they will be invited to attend, they will be allowed to ask questions, they will receive due process. 

Thomas:         But will people be mean to Trump?

Andrew:         Yes!  They’ll be really, really mean.  You know why?  ‘Cuz he’s committed lots of crimes, and you know who we tend to be mean to?  People who commit crimes.

Thomas:         [Laughs] But that’s not fair!

Andrew:         [Laughs] It is not.

Thomas:         Sorry, I’m just channeling my Republican counterarguments.

Andrew:         Yup!  And then there are procedures for receiving additional evidence and calling witnesses, which I’m gonna alight over for the time being, and the section that is being reported on that I just wanna be clear how this applies, this is on page 3 this is subsection F that says “should the President unlawfully refuse to make witnesses available for testimony to, or to produce documents requested by,” the investigative committees listed in the first section of House Resolution 660, we read those, those are the five different committees that we talked about, “in furtherance of the investigations” described in that section, “the Chair shall have the discretion to impose appropriate remedies including by denying specific requests by the President or his counsel under these procedures to call or question witnesses.”  So what does that mean?  That means as a part of this process Adam Schiff will have an additional measure at his disposal beyond the sternly worded crunchwrap.

Thomas:         [Laughs]

Andrew:         That additional measure is going to be the discretion to impose appropriate remedies.  What are appropriate remedies?  Anything he thinks is appropriate.  That can include saying “oh, you denied us access to this person, we’re not going to allow you to ask questions right now, we’re not going to entertain this particular request.” 

Now choosing to impose that set of sanctions will trigger howls of protest from Republicans, but I want to tell you that this is exactly the kind of power that a judge has.  We’ve talked about this, the inherent power of courts to issue sanctions.  I actually have a civil case pending involving this right now.  I can’t talk about it, talk about the details, but you can ask the judge, you can say the other side is doing something that is contrary to the interests of justice and you can call upon the court to use their inherent powers to sanction that other side, to punish them until they stop doing that bad thing. 

It is crucial that Chairman Schiff have that power, he will be pilloried as a dictator for exercising it, but he’s being pilloried by them right now anyway, right?

Thomas:         Yeah.

Andrew:         So this gives him an additional bit of leverage, and he will be dealing with Rudy Giuliani, so who knows-

Thomas:         [Laughs]

Andrew:         But presumably the President will also hire a lawyer who is not insane.  Maybe.  [Laughs]

Thomas:         I was gonna say, I don’t know about that.  Yeah, I hope it’s Giuliani, I think we’re up to the task when it comes to taking on his brilliant legal mind.

Andrew:         [Laughs] To taking on Rudy?  Yeah, I think that’s right.

Thomas:         Not since, yeah, William Jennings Brian has there been a-

Andrew:         An orator of such legendary brilliance! 

Thomas:         [Laughs] Exactly!

Andrew:         Yeah, exactly.  So look, you know, it goes back to one of the things that I’ve been saying since January of 2017, which is yes, if you assume that everything breaks down and nothing matters than everything breaks down and nothing matters.  But if you watch the process you can see the kinds of things unfolding, slowly, that help put more teeth back into this process.

Thomas:         But all because the idiot president was dumb enough to commit a new more straightforward crime.  I really wonder what would be happening in the alternate universe without the Ukraine component of this, but oh well, we are where we are I guess.

Andrew:         I’m with you, I’m with you.  Well let’s – that wraps up at the time that this airs the House will have voted in H.R. 660 and so that will have passed by the time you’re hearing this show.

Thomas:         Oh.

Yodel Mountain – Vindman Testimony

Andrew:         That wraps up our discussion of that.  Shall we talk about the substance a little bit?

Thomas:         The substance, you mean the testimony or what?

Andrew:         Yes, yeah.  Alex Vindman’s testimony.

Thomas:         The testimony, yes.  Let’s talk.

Andrew:         Alright!  So this week we heard testimony from Lt. Col. Alexander Vindman who was an expert on Ukraine who was assigned to the National Security Council who participated in the July 25th call between the President and Zelensky, who was not the whistleblower, but who corroborated in many details the whistleblower’s story.  So remember way back?

Thomas:         You know, it really is comically short sighted, the Republicans defense of these things.

Andrew:         Yes.

Thomas:         ‘Cuz it’s like oh my gosh, whistleblower, we heard this stuff about a call?  Well there’s no transcript!  Oh, here, Trump’s released a transcript.  Well it wasn’t by someone who was there!  Oh, okay, cool, we have someone who was there now.  The next thing will be like they’re a liar, you know?  Every single thing is just dealt with very easily and they don’t seem to care.  Is it ever gonna catch up with them, though?

Andrew:         Again, I think it will.

Thomas:         We’ll see.

Andrew:         But I’m Optimist Prime.

Thomas:         It just drives me crazy.

Andrew:         Yeah, no, look, it should drive you crazy, but this is really, really significant because what we are seeing here are the actions of career civil servants, not partisan Democrats, people who worked with and for Donald Trump who were terrified at what they saw.  Ultimately what the House Intelligence Committee is assembling is multiple sources of evidence that contradict – so Ambassador Gordan Sondland is the Trump lacky here and he has already been contradicted by multiple witnesses, so first by Taylor and second just two days ago by Vindman. 

Again, consider the analogy to the grand jury.  At the end of the day, members of the United States Senate are going to look at these competing presentations and are going to have to decide and make a case to their constituents for who’s telling the truth.  Right now we’re piecing together little parts of the picture, but the picture doesn’t look very good for Donald Trump and Vindman’s testimony, again we only have the written statement we do not have the transcript of the testimony. 

We will be getting for non top secret – I should have mentioned this in the H.R. 660 discussion – going forward for open hearings for non-classified hearings we will be getting transcripts, they are directed to produce transcripts of the testimony.  So we’ll be getting that going forward.

Thomas:         Well and we’ll be getting, eventually, a public version of all this, right?

Andrew:         Yes, absolutely.

Thomas:         That’ll be the whole thing.

Andrew:         Yes.

Thomas:         Okay.

Andrew:         So, look, what did Vindman say?  He said a number of things that build upon – so last week we talked about how Taylor’s testimony was incredibly useful in setting the stage for describing the overall relationship between the United States and Ukraine and casting light on the improper motives of the Trump administration, but Taylor wasn’t really particularly useful in terms of connecting up the specific dots.  He was good for background but not for the precise quid pro quo element of the bribery statute. 

Vindman is very good for piecing together the details.  His testimony describes how Donald Trump weaponized the relationship between the United States and Ukraine and made it contingent upon Ukraine performing a political favor for Donald Trump in exchange for aid that was previously authorized by the United States Congress.  That is the quid pro quo, that is the crime. 

Vindman’s testimony, his written statement, I’m gonna link this in the show notes.  It’s 6 pages long, it’s really, really devastating.  I’m kind of shocked that the media coverage has not focused in on just how bad this is.  So let me summarize it really, really quickly here.  The beginning on page 4, says “I joined the National Security Council July of 2018, I began implementing the administration’s policy on Ukraine.  In the spring of 2019 I became aware of outside influencers promoting a false narrative of Ukraine inconsistent with the consensus views of the interagency.  This narrative was harmful to US government policy.  While my colleagues and I were becoming increasingly optimistic on Ukraine’s prospects, this alternative narrative undermined US government efforts to expand cooperation with Ukraine.” 

That’s a pretty significant introduction and it touches to an issue that we talked about last week, which is the Republicans who say oh, yeah, but who cares?  Okay, obviously Trump committed crimes in the Mueller report-

Thomas:         Yeah.

Andrew:         -but all he did was lie about getting money and setting up a meeting with the Russians and trying to get the Russians to hack Hillary Clinton’s emails.  There is, we talked about the response of “who did that hurt.”  Vindman says this one directly hurt the country. 

Thomas:         Yeah.

Andrew:         Why did it hurt the country?  Well I didn’t know this.  When Zelensky won in April of 2019 he was (quote) “seen as a unifying figure within the country, he was the first candidate to win a majority in every region of the country breaking the claims that Ukraine would be subject to a perpetual divide between the Ukrainian and Russian speaking populations.” 

So, look, I didn’t know that, but that makes sense.  12% of Ukraine is occupied by Russian forces right now and historically there are sub-nationalities, ethnic groups within Ukraine some of which speak Ukrainian and some of which speak Russina.  Zelensky won nationwide, he won in all of those regions.

Thomas:         Hmm.

Andrew:         He (quote) “ran on a platform of unity, reform, and anti-corruption which resonated with the entire country.”  So “in support of US policy objectives to support Ukrainian sovereignty, President Trump called President Zelensky on April 21st, the day he won.  I was one of several staff and officers who listened to the call.  The call was positive and Trump expressed his desire to work with President Zelensky and extended an invitation to visit the White House.” 

Notice that Vindman also puts the first communication of hey you can come out to the White House on that initial call, the day he won.  Then a month later, May 21st, John Bolton and Fiona Hill instructed Vindman to join the delegation attending Zelensky’s inauguration.  He went over, he was there as part of the US delegation to Ukraine.  Then on July 10th, so two weeks before the call, on July 10th, 2019, Oleksandr Danylyuk, the secretary of the National Security and Defense council for Ukraine, visited Washington D.C. for a meeting with John Bolton.  Ambassador Volker and Sondland also attended along with energy secretary Rick Perry. 

That is the weirdest, just as a side bar, eventually we’re gonna figure out why Rick Perry was delegated to be point person on this, we only have speculation right now, but it’s weird. Once we know why that story happened I just have a feeling.

Thomas:         Is it just because there’s nobody left?  [Laughs]

Andrew:         It could be!  I mean, that’s what I speculate.

Thomas:         Is anybody still working here?  Oh, Rick Perry.

Andrew:         And he’s incredibly stupid, even by Trump loyalist standards.  I mean we’ve made the joke that he can’t count to three and that’s true, but I don’t want the fact that that’s funny to obscure the fact that he is a genuinely stupid human being.  Not just stupid for politics, he’s just dumb, so I have speculated that it’s here’s somebody who is loyal and not bright and since I tend to view everything through the lens of an 80s cartoon, he’s the bad guy’s henchman that just does everything unquestioningly and isn’t smart enough to-

Thomas:         Well but he also got thrown under the bus already, didn’t he?

Andrew:         Yup.  I think it’s going to be interesting.  Anyway, Danylyuk comes to D.C., Vindman says “the meeting proceeded well until the Ukrainians broached the subject of a meeting between the two presidents.”  Again, remember, that was promised on the day he won. 

“The Ukrainians saw this meeting as critically important in order to solidify the support of their most important international partner” that’s us.  “Ambassador Sondland then started to speak about Ukraine delivering specific investigations in order to secure the meeting with the President at which time Ambassador Bolton cut the meeting short.  Following this meeting there was a scheduled debriefing during which Ambassador Sondland emphasized the importance that Ukraine deliver the investigations into the 2016 elections” now, remember, that is a bonkers nonsense Q-Anon level conspiracy theory, “the Bidens, and Burisma.”  Burisma is the company on which Hunter Biden served. 

“I stated to Ambassador Sondland that his statements were inappropriate, that the request to investigate Biden and his son had nothing to do with national security and that such investigations were not something the NSC was going to get involved in or push.  Dr. Hill then entered the room and asserted to Ambassador Sondland that his statements were inappropriate.  Following the debriefing meeting I reported my concerns to the National Security Council’s lead council, Dr. Hill also reported the incident to lead counsel.”  That’s a new fact that we learned [Laughing] that delegates, representatives of the National Security Council, upon hearing the administration starting to pressure Ukraine to deliver political dirt on Joe Biden, went and talked to their lawyers.  That’s pretty significant. 

The next event is the election call, that’s the July 25th call.  So July 21st President Zelensky’s party won parliamentary elections in a landslide victory, NSC proposed that Trump call President Zelensky to congratulate him, that call occurred on July 25th, that’s the one that we know about.  Here’s how Sondland describes that call, and I wanna add one more thing that we’ve picked up from his testimony.  He says (quote) “I was concerned by the call.  I did not think it was proper to demand that a foreign government investigate a U.S. citizen and I was worried about the implications for the U.S. government’s support of Ukraine.  I realized that if Ukraine pursued an investigation into the Bidens and Burisma it would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained.”

Thomas:         Hmm.

Andrew:         “This would all undermine U.S. national security.  Following the call I again reported my concerns to NSC’s lead counsel.” 

Thomas:         Yeah that’s the thing, consider the position of the Ukrainian, well not just the President but I guess the prosecutor, everybody involved.  What are they supposed to do?

Andrew:         Yup.

Thomas:         Okay, this is the President who is withholding potentially millions or hundreds of millions of dollars that we badly need, you know?

Andrew:         Yeah.

Thomas:         You can’t really expect them to just say “sorry, this is unethical we’re not gonna do this” and then not get all the money they need and maybe have people die.

Andrew:         Yeah!  No, that is exactly right, and what Vindman does is vividly illustrate the rock and a hard place that puts Ukraine in.  So on the one hand they’re Ukraine, they are used to dealing with strong men and dictators so I’m sure when Donald Trump calls and says [Impersonation] “Hey you gotta do me a favor first,” that Zelensky understands that he’s being shaken down.  At the same time, he also I did not realize, what a sweeping anti-corruption transformational candidate he was. 

Again, if Vindman is to be believed (I don’t see any reason not to) now you’re looking at it and going on the other hand if we play at Trump’s lacky here, well Donald Trump isn’t going to be President forever and if we just are a part of his political arm then we run the risk of alienating the Democrats.  So it really is a damned if you do and damned if you don’t.  If they turnover to Trump what he asks for, and again, part of what he’s asking for is not possible to be turned over because it’s nonsense made up by the same people that think there’s a secret basement beneath Comet Ping Pong.  Part of it is crazy, but part of it, they certainly could invent or turn over actual dirt on Hunter Biden, we’ve talked about that. 

I have no doubts that Burisma’s payments to Hunter Biden would probably reveal some kind of garden variety white collar corruption.  I’m very, very positive on that, so they could turn that over, but if they do now they’ve been turned into a political arm of the Republican party and that’s the kind of thing you don’t do to our geostrategic allies!  Could you imagine, you know, I grew up as a politically aware child at the end of the Cold War and watching the behavior of Ronald Reagan. 

The idea that you would take and convert countries into, that they would align with the partisan interests of one party knowing that we elect a new President every four years is just bonkers

Thomas:         Yeah.

Andrew:         Yeah, it’s crazy.  Alright, one last bit of detail, this is not in the written remarks so again I wanna put the caveat, it’s from multiple news sources, but I don’t have the document.  Apparently according to those sources Vindman testified that he was also concerned about the transcript of the July 25th call that was released.

Thomas:         Right.

Andrew:         In particular what Vindman says is that the ellipses in that TELCON, which we’ve talked about-

Thomas:         What do you know?!

Andrew:         [Laughs]

Thomas:         Another misleading quote unquote transcript or summary or whatever you wanna call it.

Andrew:         That they deliberately omitted specific references to Burisma.  That is that Trump didn’t just say “hey, I need you do do the Biden thing” which is what the transcript says, “and I want you to look into corruption,” that he specifically said Burisma and that would be clearly understood not as a general “hey!” but as a very specific I need you to do a hit job on Joe Biden.  So that would be bad.  [Laughs] This testimony was so bad that the first Fox News kneejerk defense was of course to be racist.

Thomas:         [Laughs]

Andrew:         No, I’m 100% serious about that.  They argued that Vindman-

Thomas:         To be fair, they might have already been in the process of just being racist normally.

Andrew:         Well, yes.  But they said Vindman was born in the former Soviet Union and fled, immigrated to the U.S.

Thomas:         Psh, you don’t say?  The person who’s an expert in these areas has a history and a motivation or a reason why they would be an expert in these areas?  You don’t say.

Andrew:         The hit was well he speaks Ukrainian. 

Thomas:         Yeah.

Andrew:         Seriously.  That was such a bad attack that every Republican asked about this and some unprompted, Liz Cheney unprompted, said “I think that was inappropriate and we need not to be attacking the loyalty and credentials of a lifelong civil servant, purple heart recipient.”  Vindman’s resume, I didn’t go through it, we don’t have time, is impeccable.

Thomas:         Yeah.  It’s yet another person with absolutely no reason to just decide to be an enemy of the Republican President.

Andrew:         Yup.

Thomas:         It’s amazing.

Andrew:         So again, you know, we’re looking for the signs of change atop Yodel Mountain, saying hey, we’re not going to let the President and his worst allies undermine the credibility of that witness is, I think, a very, very encouraging sign.  It’s not enough, but no one thing is enough.  But as you’re looking for things about which to be optimistic, be optimistic about Liz Cheney not being horrible, that’s a good thing to be optimistic about.  Again, Mitch McConnell gave a mealy mouthed Mitch McConnell because … of course he did. 

Liz Cheney said “oh, and I want to say” unprompted brought it up and said I think the attacks on Vindman are inappropriate, we can be better than this.  [Laughs] Look, when a Cheney tells you we can be better, that tells you where we are.

Thomas:         [Laughs] That’s a low bar!

Andrew:         Yeah.

Thomas:         For being better.

Andrew:         A low Bill Barre.  So there we go.

Thomas:         You know, as much as I’m usually the Negatron, I think there’s a chance if this gets to a vote in the Senate that he could actually be convicted.  It’s so bad, ‘cuz what do you need, 20 Republicans?  [Inhales]  Oooh, well you got Mitt Romney?  [Laughs]

Andrew:         Yeah.

Thomas:         Maybe 19 other Mitt Romneys?  I dunno.

Andrew:         Susan Collins, you know, Lisa Merkowski.

Thomas:         It’s so bad though, how are they gonna not?  Oh well, hopefully we get to that point.

Andrew:         We’ll see, we’ll see.  So there you go.

Thomas:         Alright, well we are way out of time.

Andrew:         We are way outta time.  Maybe I will do, if I can, a Patreon only segment bonus on the absolutely crazy story coming out of the Harvard Law School Federalist Society [Laughs] I really, really wanna cover this.  It will be incredibly interesting, so maybe look for that in your Patreon feed, but we gotta bring it to a close.

Thomas:         Alrighty, yeah, it’s time for First Timer Friday!  Yeah, it’s time to thank the First Timers and good news Andrew, we’re gonna be all caught up after this finally!

Andrew:         Awesome.

Thomas:         I mean, maybe that’s bad news actually.

Andrew:         [Laughs] Yeah!

Thomas:         Make us not caught up, everybody!

Andrew:         Let’s have more patrons, come on, sign on up!  Patreon.com/law!

[Patron Shout Outs]

Thomas:         I know we’re out of time, but speaking of Gaetz, the idea that he was on a li’l date with Trump to game 5, you know, Trump and Melania have a, what 9, 10 year old boy, don’t they?  Or did they get rid of him?

Andrew:         Yeah, Baron.

Thomas:         Do they still have Baron?  And nope, they took their little child Matt Gaetz and some other Republican hacks to the game.  I just thought that was [Sighs]

Andrew:         [Sighs]

Thomas:         I feel like that’s a little window into what’s going on there.

Andrew:         Yeah.

Thomas:         Can you imagine?  Anyway.

Andrew:         Yup. 

Thomas:         Alright, now it’s time for T3BE.

T3BE – Question

[Segment Intro]

Thomas:         I blew it last time, I offer my sincerest apologies but time to get back on that horse, get back in the positive let’s do it.

Andrew:         Yeah, and there’s no better way to do that then with a real property question, obviously, so here we go!

Thomas:         Ah, okay, well I’ll see you all next week! [Laughs]

Andrew:         [Laughs] Thomas, a landowner orally gave his neighbor permission-

Thomas:         Well watch, out, hold on!  Sorry, I thought that was the, never mind.

Andrew:         Yeah.  So [Laughs] orally gave his neighbor permission to share the use of a private road on the landowner’s land so that the neighbor could have more convenient access to the neighbor’s land.  Only the landowner maintained the road.  After the neighbor used the road on a daily basis for three years, the landowner conveyed his land to a grantee, who immediately notified the neighbor that the neighbor was not to use the road.  The neighbor sued the grantee, seeking a declaration that the neighbor had a right-

Thomas:         Oh yeah.

Andrew:         -to continue to use the road.  Who is likely to prevail?

Thomas:         Well this is not possible.

Andrew:         [Laughs] It’s a straightforward question! 

Thomas:         Sure, yeah.

Andrew:         A) The grantee, because an oral license is invalid; B) The grantee, because the neighbor had a license that the grantee could terminate at any time; C) The neighbor, because the grantee is estopped from terminating the neighbor’s use of the road; or D) The neighbor, because the neighbor’s use of the road was open and notorious when the grantee purchased the land.

Thomas:         [Chuckles] Open and notorious. 

Andrew:         Yes.

Thomas:         Wow.  You know what’s so funny about this?

Andrew:         [Laughs]

Thomas:         There’s a term that I’m blanking that this is.  What is it?  Like … there’s gonna be some term that you’ll say that I can’t remember, but anyway, when I was at a family gathering a few months back I usually just try to pretend like I don’t have a job or something because I don’t want to talk to potentially conservatives about the podcast.

Andrew:         [Laughs]

Thomas:         But anyway, someone was finding out about the podcast and asking me about it and they launched into their legal problems which was exactly this fact patter.

Andrew:         [Laughs]

Thomas:         Like it couldn’t – this is from – they were like “yeah, there was a road that we’ve been using forever then all of a sudden we can’t use it anymore so we tried to take them to court” and then she said what the term is that I can’t remember.  Conveyance?  I dunno, something like that, and I don’t know what the answer was to that question and I don’t know what the answer is to this question! [Laughs]

Andrew:         [Laughs] So what you’re saying is you truly have no excuse for not getting this question right.  You actually have been previously briefed!

Thomas:         Are you kidding me?  Even she was like “we don’t even know what’s going on, we don’t know the rules,” even the person who had this problem wasn’t clear what the law was so come on, give me a break!  So this is just gonna be whatever the law decides it is. [Laughs] My answer is whatever the law decides! 

So a landowner orally gave permission to share the use of a private road … maybe a more convenient access, so more convenient could be key there, maybe it’s not critical access there.  Only the landowner maintained the road.  That also seems maybe important.  After the neighbor had used the road on a daily basis for three years, landowner sells it to somebody else, or grantee, I dunno if that’s not selling it or whatever, but immediately notified the neighbor that was not to use the road.  Okay, so let’s see.  I dunno, let’s see what we got. 

I think if I was to put on some fairness, just my fairness hat, it feels like the grantee ought to have the right to say no to this.  It feels like.  Grantee?  I wonder if that’s gonna be critical, like if they sold it to them versus granted, conveyed the land to a grantee, I don’t know what the significance of that is.  But it feels like if you own the land and this is just a more convenient access it’s not as if this is the only road to the whatever, and furthermore the landowner is the only one who’s maintaining this road so the person who’s using it – no wait, I’m sorry… yeah, yeah that’s right.  So the landowner, it’s not as though the neighbor is helping with the upkeep or anything.  It feels to me like the grantee ought to have the right to do this, but let’s see. 

Okay, A, the grantee because an oral license is invalid.  That doesn’t quite seem right.  B, the grantee because the neighbor had a license that the grantee could terminate at any time.  That seems reasonable to me, B is a contender there.  C, the neighbor because the grantee is estopped from terminating the neighbor’s use of the road.  Hmm.  Possibly, I don’t know why they would be estopped necessarily.  D, the neighbor because the neighbor’s use of the road was open and notorious when the grantee purchased the land. 

I mean, maybe?  But do we have any evidence that this was open and notorious because it doesn’t really say that, it just says that the landowner orally gave the neighbor permission.  There’s nothing in the fact pattern that’s like furthermore the whole town celebrated the neighbor’s use of this road.  [Laughs] Read about it in the Daily News every day.  So I don’t know about this open and notorious, that doesn’t really seem right.  So I almost am leaning toward B because I just like neither of the neighbor answers, neither C or D.  I would say if I was trying to eliminate two I would eliminate A and D, although I mean it might be that D is just a tricky answer that’s tricking me, but it just really doesn’t seem right.  The neighbor’s use of the road was open and notorious, I don’t see that anywhere in the facts, so I’m gonna go with B and C and I’m gonna go with B. 

I just feel like the neighbor had a license that the grantee could terminate at any time, seems right to me.  There could be, you know, I could see it being C if there’s some rules magic real property rules, it could be anything, essentially, but I’m gonna go with B.  My strategy with these difficult real property questions is just try to pick the most logical one and hope I get something like half of them right.  So far it’s not paying off, but maybe this time, let’s see.

Andrew:         Alright!

Thomas:         Final answer, B.

Andrew:         Final answer, B.  If you’d like to play along with Thomas on T3BE, come on guys, you know how to do that by now!  Just share out this episode on social media, include the super cool hashtag #T3BE, which, by they way, I think the latest Terminator movie drops today as this episode is dropping, so, you know, we get extra bonus on that!  Anyway, share out this episode, use the hashtag #T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, thanks so much for listening.  Andrew, woo!  That was a lot!  I know you didn’t get to everything you wanted to, but good Yodeling, thank you very much sir!

Andrew:         I think I got to a lot, though, so…

Thomas:         Yeah, you did, definitely, but there’s always more in Yodel Land.  But enjoy your boat, have a good-

Andrew:         Thank you!

Thomas:         Have a good boat trip time.  See ya next time, everybody!

[Show Outro]

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