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Thomas: Hello and welcome to Opening Arguments, this is episode 330.
Thomas: Cool round and even number, multiple of ten. How’s it going Andrew?
Andrew: It is going fantastic Thomas, how are you?
Thomas: Doin’ well, not as well as the man who is on the vacation that seemingly never ends, but-
Andrew: [Laughs] It ends! Last day, last day man.
Thomas: I don’t believe it.
Andrew: Well, you know.
Thomas: We’ll see, everybody, I’m skeptical but we’ll see if it… [Laughs]
Andrew: But you know what I never take a vacation from? The law.
Thomas: Opening Arguments!
Andrew: [Laughs] Exactly right.
Thomas: Alright, I’m excited because I’m kinda in the dark here but I trust Andrew Torrez. Due to Italian wine consumption purposes-
Thomas: I believe the whiteboard has not been updated. I’m not gonna say by whom, I’m not gonna name names, but as such why don’t you give us the topic preview for today’s episode?
Andrew: Yeah, two main things that I wanna accomplish today. The first is I really want to go back over the landscape now that we are sort of within, deep within the impeachment inquiry process and kinda give an explainer and break down, there’s a lot of different vocabulary out there, address the main arguments that are being advanced, answer a really, really good listener question. So if you have somebody who is skeptical of the impeachment process but has an open mind I think this’ll be the episode for them.
Thomas: Do we have to come up with another uncle? So this is not quite Uncle Frank-
Thomas: But it’s Uncle… Ben? [Laughs]
Andrew: Uncle Ben, right.
Thomas: No, that’s already been used.
Andrew: No, not the murdered uncle from Spiderman, no! [Laughs]
Thomas: Or the rice, I was going with the rice but that’s fine, you’re a comic book nerd, I get it.
Andrew: Yeah, exactly.
Thomas: Some other uncle.
Andrew: Some other uncle!
Thomas: Sam? Naw, dammit that one’s taken too. Every uncle’s been used.
Andrew: That’s it! Those are the only three men’s names there are. Frank, Sam, and Ben. Sorry, uncles, there you go.
Thomas: [Laughs] Uncle Clarence! There you go, we found – nobody else is named. What else is on the agenda?
Andrew: Yeah, the other thing that I really wanna break down is a decision that just came out of the Connecticut Supreme Court, it is called Bilbao v. Goodwin and it is a case involving frozen embryos. There’s been a lot of discussion about this because whenever you have a decision that potentially involves the question of whether a fertilized embryo is a human life and what rights it has, that’s not hard to imagine how that can become a political football. This decision really sidesteps a lot of those issues.
So I think it’s really interesting and I think it’s worth discussing in detail because as our technology moves forward we’re gonna have more cases like this not fewer. So there we go, those are our two main topics for today.
Thomas: Alright. I’m gonna get my embryos frozen. Is that … no I don’t have any. Or how does that work? I wanna get my – I just think it would be cool, is that only women? I don’t get to freeze anything, do I? There’s nothing I get to freeze. Can I have my head be frozen after I die? I’ll do that.
Andrew: [Laughs] Yeah, you could do the Futurama, have your head in a jar.
Thomas: Yeah. [Laughs] Okay, that’s what I’ll do, never mind. So this law won’t apply to that, okay. Alright, well let’s get to it. I suppose our first segment is yodeley in nature if I had to guess?
Andrew: It is halfway in between Yodel Mountain and Breakin’ Down the Law.
Thomas: Oooh, Yodeling Down the Law!
Andrew: Yodeling Down the – Breakin’ Down the Mountain, there we go! [Laughs]
Thomas: [Laughs] Well let’s hear it, Brian!
Impeachment Inquiry Explainer
Thomas: I hope he made a good mashup. Okay, what’ve we got?
Andrew: Yeah, so where we stand right now with the impeachment inquiry is that the House of Representatives, we discussed last week, we went into great detail about what H.R. 660 was, that is the House Impeachment Inquiry Resolution, and since that’s happened I don’t know – I mean how would you describe the press coverage surrounding impeachment?
Thomas: Oh, that’s interesting. I would say it’s hard because I don’t know that “the press,” which is – again, that’s also a difficult term because, you know, there’s the right wing media and then the media, and those are two very, very different things. But I would say they still quite haven’t figured out how to cover just wave after wave – to do some Zap Branigan – wave after wave of bad faith arguments. Republicans really are the Zap Branigan of bad faith.
Thomas: They’re prepared to send as many, wave after wave, of just terrible arguments to die, but the thing is it’s way harder to kill a bad faith argument then it is to just make wave after wave of them, so I would say that a lot of it has been trying to catch up with all the terrible arguments. The funny thing about, it’s just funny more out of despair than anything else, but what’s been funny is how many times in the Trump era, Republican – or I won’t even say Republican – Trump-worshippers start by saying well look, if he had done this then that would be one thing but he didn’t do that so it’s fine!
Then, you know, from Sponge Bob [Impersonation] “48 Hours Later” and then he obviously did the thing that they set up at first as the thing that he didn’t do. That’s happened multiple times, the quid pro quo, whatever it may be. Oh, there’s no quid pro quo, no whatever, then the transcript’s revealed or whatever is revealed, testimony tells us there has been. So a lot of it has been that, I think, just dealing with these bad faith criticisms and trying to pull apart whether the process has been unfair, which, you know, it really hasn’t. But that’s about it.
Because it’s behind closed doors and we’ve only gotten snippets here and there I haven’t heard a whole lot, it hasn’t quite made the news that I think it will once we get to hear these public hearings, but what were you fishing for out of me?
Andrew: No, that is exactly-
Thomas: You’re just asking ‘cuz you’ve been in Italy, so you’re like literally don’t know what’s happening, just wanted to catch up on the news! [Laughs]
Andrew: I wanted to get your impression because my impression from checking out Google news alerts every day and trying to keep up is that Republicans in the Senate have moved to a position of wrapping the entire impeachment process up in one package-
Andrew: -and saying well the whole thing’s been unfair from the start. I don’t quite get that, so I thought it would be – because prior to the passage of H.R. 660 Republicans were making the argument-
Thomas: Yeah. [Laughs]
Andrew: -that we broke down last week’s episode that says the past two impeachment inquiries have all been voted out by a resolution that was passed by the entire House of Representatives. Prior to the introduction of H.R. 660 we pointed out that A) that is not a Constitutional requirement, there is nothing in the Constitution – maybe this should be the first point-
Thomas: That says a dog can’t be impeached? But never mind.
Andrew: [Laughs] Yeah, that says a dog can’t impeach the President while playing basketball, right? No. The word, the phrase “impeachment inquiry” is not found in the Constitution, is not found in any particular law. It is meant to describe historical practice of gathering information. So the first thing that we have pointed out is that you do not need a specific resolution passed by the full House of Representatives to authorize an impeachment inquiry-
Andrew: Even though we’ve now passed that, that’s what H.R.-
Thomas: And it was such a weird – I mean, could they not have foreseen how this would go? “Well none of this counts ‘cuz you don’t have this piece of paper!” Okay, well we’ll just get this piece of paper. “I didn’t think you would do that, ooooh. Okay, well it still doesn’t count because of … nothing else.”
Andrew: That’s right! So let’s break that down, and let’s start with steel-manning the Republican argument to the best of my ability. It is a fair argument prior to the passage of H.R. 660 to say that the last two impeachment inquiries were authorized by a full vote of the House of Representatives, that there was a resolution straight up or down vote by the House of Representatives that said okay, we are going to officially begin impeachment inquiry, looking into whether to impeach Richard Nixon and then whether to impeach Bill Clinton. So insofar as we want to steel-man the other side, there you go. That’s the best-
Thomas: Could they just steel-man themselves? Why are we always having to do their work for them?
Andrew: [Laughs] Well, that’s fair-
Thomas: If they’re not ever going to steel-man themselves then we don’t have to do it.
Andrew: [Laughs] Well that’s fair too. The point of distinction, the single largest point of distinction – and, again, you know, if Uncle Clarence is listening to this-
Andrew: This is the first thing that I want you to meditate on, and that is that each of the last two impeachment inquiries were begun in the House of Representatives after a special counsel had already done the bulk of the work. That was the case, Archibald Cox with Richard Nixon and Kenneth Star-
Thomas: Somebody called – yeah, but not Bob Mueller, that doesn’t count because it’s a whole different thing, just to clarify.
Andrew: Well it actually doesn’t. This is a good second point to clarify, which is Robert Mueller was a special counsel. He was not – the difference between being an independent counsel and a special counsel is not how special you are as a human being, it is that the Justice Department is free to hire outside lawyers, so the way in which Robert Mueller was appointed was the Deputy Attorney General, Rod Rosenstein, said “I’m going to investigate this, but I’m not gonna do it myself because I want to avoid any kind of appearance of impropriety.”
Thomas: Hmm, right.
Andrew: “I’m gonna hire Bob Mueller to do this.” As we saw with the Mueller Report, the difference between what Robert Mueller did and what, say, Ken Star did, was at all times Robert Mueller was directly under the supervision of first the Deputy Attorney General and then the Attorney General. He was an employee, he was hired by the Department of Justice and he shared his materials first with the Department of Justice, which we saw that led to Attorney General Bill Barr getting access to Mueller’s report in advance of both the Houses of Congress and the American people, and that’s what enabled Bill Barr to prepare an incredibly misleading summary.
Again, Uncle Clarence, I’m really sorry that you’re listening to this, you can go back in our archives, the Bill Barr summary is as misleading a document as I have ever seen. I’ve only been practicing law for 23 years, so I suppose it’s possible that there are things that are – it literally omits the word “not.” It’s bad.
Contrast that with an independent counsel like Ken Star, that is somebody appointed pursuant to a law passed by Congress, so that person was responsible to the U.S. Congress and not to the President, not to an employee of the President who was handpicked by the President, so one of the sad things that Democrats did was they allowed the independent counsel statute to expire after Republicans used it to investigate Bill Clinton. That’s a real tactical mistake.
Thomas: Well, and they abused it, though, because there were problems with it that allowed Republicans to abuse it. You know, so there’s ups and downs to that.
Andrew: That is true, but the key point of contradistinction here is that Robert Mueller was, at all times, an employee of the Department of Justice-
Andrew: Subject to the Deputy Attorney General, reporting to the Deputy Attorney General and then the Attorney General, all of whom were appointed by President Donald J. Trump. As opposed to Ken Star who was a Republican party activist who wrote a document that was designed to advocate for the impeachment of Bill Clinton. So Bill Clinton’s impeachment inquiry began with the House of Representatives having a tailor-made document that was a step-by-step “you should impeach the President for these reasons” delivered to their doorstep. That means that there was much less work for the House of Representatives to do under Bill Clinton.
Andrew: There’s more work to do here, and the reason that there’s more work to do is because everything involving Ukraine occurred outside the purview of the Mueller investigation. Now we have said on this show, and I think it remains an open question and one that I believe that the impeachment inquiry will touch on subject matters that were included within the scope of the Mueller report, for the reasons on that you can see our prior episode, which was a deconstruction of the 9 crimes that are unambiguously attributed to Donald Trump as a result of Volume 2 of the Mueller report. Those are all obstruction of justice crimes.
Again, this one I can’t steel-man the other side’s argument, because you are actually hearing, “well Trump didn’t hurt anybody,” “you didn’t prove.” We actually had an exchange on Twitter involving Glenn Greenwald who’s been, I think probably came out the worst in all of this? [Laughs] It’s hard to come out looking worse than the President but Glenn Greenwald has managed to do so.
Thomas: But he doesn’t know it yet, though.
Andrew: [Laughs] It’s amazing. So Greenwald’s position was “remember, no Americans were arrested for colluding with Russia as a result of Mueller’s investigation.” That’s how you have to downplay the Mueller report, you have to use that formulation in those precise words, and that is correct insofar as it goes, because there are certainly Russians who were arrested.
Maria Butina was just sentenced to 18 months, we have lots of unindicted Russian conspirators, troll farms, that sort of thing, that were arrested for interfering with the U.S. election, and we have the pleas of both Michael Flynn who pled guilty to misleading, giving false testimony, to the Mueller investigation regarding his contacts with Russia, and George Papadopoulos who gave false testimony to the Mueller investigation regarding his knowledge of Michael Flynn.
So, you know, you can say Michael Flynn was not arrested, was not charged with directly conspiring with Russia, that is true insofar as it goes, Michael Flynn was charged with and pled guilty to lying to the Mueller investigation concerning his contacts with Russia. You would be forgiven if you say “well that seems like a pretty thin hair to split.”
Thomas: Yeah. By the way, I found an even bigger boss when we’re done with the Greenwald, turns out there’s an expansion to this game.
Andrew: Oh yeah?
Thomas: Which is horrible, I’m gonna make more enemies here I can’t wait. Matt Taibbi is maybe my new least favorite person. He’s been saying – he’s all 100% on board with Greenwald plus someone asked him – if you don’t know Matt Taibbi it’s not worth going into, he’s done some good journalism but he’s-
Andrew: Oh yeah!
Thomas: -now a Glen Greenwald type. Someone asked him okay, fine with your Russia stuff, what about the Ukraine stuff? He said (quote) “I’m content at this point to point out that the people pushing this Ukraine thing only just got finished being totally full of clownhorn across two years of conspiracy theory.”
Andrew: [Laughs] God. Yeah.
Thomas: So you can’t look at the evidence that you’re seeing with your own eyes because some people that you think were pushing a conspiracy theory also believe in a Ukraine thing. It’s a weird thing that’s happening with some of this denialism.
Andrew: It absolutely is. Again, to Uncle Clarence if you’re listening, it is undisputed, the Senate Intelligence Report chaired by Richard Burr, Republican from North Carolina, lifetime 97 score from the American Conservative Union, not Bernie Sanders, not AOC.
That Senate Intelligence Report unambiguously confirms what is also contained in the Mueller report, which is that the Russians maintained an active campaign in 2016 to interfere in US elections in favor of Donald Trump and in opposition to Hillary Clinton. That is an unambiguous, established fact. At that point, the point in which you know, you have as a baseline fact that a hostile foreign power preferred Donald Trump to Hillary Clinton, at that point if you’re not immediately skeptical every time somebody in the administration has a backchannel private relationship with officials in Russia and lies and covers it up then I honestly don’t know what to say. This is not a conspiracy theory, we’re not saying-
Thomas: I mean, it’s a theory about a conspiracy, but [Laughs]
Andrew: Right! [Laughs] Yeah, yes.
Thomas: It’s also verified. It’s not really a theory anymore.
Andrew: Look, no one has proven – if this is the Matt Taibbi standard that you must have photographic evidence of a giant-
Thomas: Of a guy in one of those fur hats doing that dance where they get real low and their-
Andrew: [Laughs] Yeah, the Cossack Dance!
Thomas: Came here and like hacked a voting machine in person, that’s the standard that they shoot for.
Andrew: No, but that’s not even the standard because then that would just be well the Russians hacked us but you can’t prove Donald Trump wanted that, right?
Thomas: Oh, right.
Andrew: You would have to have Donald Trump paying said Cossack with a sack full of gold.
Thomas: He’d be like shaking hands with him, sack full of money, he’s like “cool hat that must keep you really warm and also the aerobics you’re doing with that dance thing” and you’d need all that on video and then finally, maybe.
Andrew: Yeah. Okay, we went down a little bit of a rabbit trail with respect to that, but where I wanted to jump off that I thought was really perfect and kind of the last point on this segment is what counts as a quid pro quo and why quid pro quo is-
Thomas: Yes. Let me intro this by another thing that is happening with the media and the Republican excuses is quid pro quo’s happen all the time in foreign policy as though there would be no different kinds of quid pro quos. It’s like me saying Andrew, quid pro quo, I mean I go to the store, I give them money and they give me food to eat, quid pro quo. Or, you know, I hold a knife to a guy’s throat and tell him to give me his wallet and in exchange I won’t stab him and cut his jugular? That’s a quid pro quo.
They’re all – quid pro quos happen all the time in everyday life so I’m not guilty, Your Honor, of holding my knife to that guy’s throat and attempted murder, whatever you’re charging me with, blackmail, because quid pro quos are a normal thing. I went to the store, there’s a quid. They gave me food, that’s a pro quo.
Andrew: [Laughs] I love-
Thomas: I rest my case!
Andrew: Yeah! Case closed! I love the way, I seriously do, love the way that you’ve set that up because this is something that I think the media hasn’t done a good job of drilling down on. On the one hand, again Uncle Clarence, stay with us, you are correct. [Laughs]
Thomas: Yeah. [Laughs]
Andrew: That in the broadest sense of the word, that’s what quid pro quo means. This for that. In a capitalist economy there’s absolutely nothing wrong with exchanging money for goods and services. That’s a quid and there’s a quo. So you are absolutely correct that under the technical definition of quid pro quo, which is Latin for “this for that,” every time in a capitalist economy we change money for goods or services-
Andrew: I give you this, you give me that.
Andrew: Well that was the quid and then there was the pro, the exchange, and then came the quo. The law doesn’t prohibit quid pro quos.
Thomas: [Laughs] Yeah! The US Code doesn’t say “this for that” is now illegal! That would be maybe a little restrictive, I’d say. Might be a little too broad of a law.
Andrew: Yeah! That would be insane. [Laughs]
Andrew: But here’s what the law does prohibit, and we’ve talked about this before but I feel like we can’t say it enough times. The law prohibits bribery. That statute is 18 U.S.C. § 201. Bribery, by the way, this is gonna be a slight detour, also covers the completely insane assertion that trying to do something doesn’t count.
Andrew: A lot of people-
Thomas: I mean, there’s the Simpsons. All we need to do is-
Andrew: Have that post of the Sideshow Bob!
Thomas: -The law can now be argued by Simpsons gif, basically!
Andrew: Right, yeah!
Thomas: [Impersonation] “Attempted murder, what is that? They don’t give the Nobel Prize for attempted chemistry!”
Andrew: It is so ridiculous, I want to go on the record here. There is no question that not even Rudy Giuliani would advance that argument in an actual court of law because it is so preposterous, but I will say this. If I were a lawyer representing the House Committee on Intelligence for example and this argument were made I would 100% use the Simpsons gif in a brief.
Andrew: I’m 100% not making this up.
Thomas: Is it when an argument’s so bad the judge will let you do that? They’re like, that’s fine.
Andrew: Yeah! [Laughs] There is – so, you know, little rabbit trail. The only really acceptable joke in legal pleadings is the quotation from Alice in Wonderland, from Lewis Carol’s Alice in Wonderland, of “when I use a word it means exactly what I want it to mean and nothing more.” I’m obviously paraphrasing there, like that’s what sort of counts for permissible legal humor in briefs.
Thomas: That’s … hilarious.
Thomas: [Laughs] So funny.
Andrew: Again, there’s a reason why I leave the comedy to you on this show.
Andrew: Lawyers, we’re not a funny people, I’m sorry Thomas.
Thomas: That’s fair!
Andrew: We’re just not.
Thomas: We’re peanut butter and jelly over here. It’s perfect.
Andrew: [Laughs] I would absolutely use the Simpsons gif in a brief if faced with this argument because it is that bad. So why would I do that? Because 18 USC § 201 spells out the three things that you have to have, you have to prove, in order to prove bribery. Interestingly enough – Uncle Clarence, you’re still with us, I could understand if you think colloquially about the term “bribery” you do think of, okay, I slip the $20 in the guy’s pocket and he let me cut to the front of the line. You do think of bribery as being a completed transaction. That’s not what the law requires.
The law requires you to prove three things. So this is 18 USC § 201(b) and I’m gonna break down each of the specific elements and show how they apply or how they could potentially apply to Donald Trump and we’ll see where the quid pro quo thing comes in. So it says “whoever, being a public official or person selected to be a public official.” Let’s start with that. The President is a public official, okay?
Thomas: Unfortunately, yes. I think even Uncle Clarence can agree with us.
Andrew: [Laughs] I have seen an argument-
Thomas: Maybe even Uncle Frank?
Andrew: No, no. I have seen an Uncle Frank argument that says this doesn’t apply to the President.
Andrew: It is not true. You can look at 18 USC 201(a)(1) that defines the term “public official.” “Any officer, employee, or person acting for or on behalf of the United States or any department, agency, or branch of government thereof in any official function under or by any authority of such department, agency, or branch of government.” So, yes, the President is a public official. That’s the first part.
Then, “whoever, being a public official, directly or indirectly corruptly demands, seeks, receives, accepts, or agrees to receive or accept, anything of value personally, or for any other person or entity.” Let’s break that down, that has two components to it. Number one, you have to prove corrupt intent. That really, I think, we’re gonna talk about it in response to a listener question that came in. Ultimately this is the narrow defense that I think Republicans will seize upon in the Senate, that is to say all the rest of the elements of the statute are met but you can’t prove a corrupt intent.
As we’ve talked about on the show, proving corrupt intent is indeed a challenge. It’s hard to prove what’s going on in someone’s head!
Thomas: Unless – [Laughs] Unless, yeah.
Andrew: Unless you have, after I did something I immediately delete all records of it, put it on a super secret server, lock it down, restrict access, round up everybody who had access to that phone call, promise them to secrecy. That’s why all of those things are important, because they’re the kind of things that ordinary juries use in ordinary everyday life in adjudicating trials with defendants who are not the President of the United States to figure out if they’ve broken these kinds of laws.
Because how do you determine someone’s intent? Well, the only thing you can do, assuming they don’t break down Perry Mason style on the stand, the only thing you can do is look to their actions. Again, Uncle Clarence, we’re not gonna characterize this here. Take a look at the actions of the President and those around the President immediately after the July 25th phone call with President Zelensky. I’ll just let that speak for itself. Okay, so “corruptly demands, seeks to receive anything of value.” Again notice that was “demands,” “asks for,” “seeks,” “tries to acquire,” “actually does receive,” or “agree to receive anything of value.” Here, we have covered this extensively but the law is crystal clear that getting an opposition dossier on your opponent, getting political dirt on your opponent, is a thing of value.
How do we know that it’s a thing of value? Because people pay for this stuff all the time, right? [Laughs]
Andrew: That’s true, and in fact that’s what the case law says. A thing of value is a thing that you would otherwise have to pay for, so one of the things that is a little bit of a sidebar but we’ve tackled this question before. The difference between the Steele dossier and the Trump Tower meeting in July of 2016 is that you can hire and declare that you’ve hired a foreign consultant to do work for your campaign and as long as you disclose that you’ve hired that person and as long as you pay them for the work that they’ve done and as long as you appropriately disclose that under the campaign finance laws, you’re fine!
The idea is not that you can’t have foreigners work for your campaign, the idea is that you can’t have foreigners secretly give you stuff that’s beneficial to your campaign.
Thomas: You know, interesting. So hypothetically if you were just like yeah, I wanted Putin to help me out, Putin how much money do you want? Could you do that? Or does that run afoul of some other law?
Andrew: Well it is also a crime for a foreign official to influence or affect an election, or for you to seek the efforts.
Thomas: Oh, so it’s gotta be just a person, it can’t be-
Andrew: Yeah, but you could hire – yes. In other words, again, let’s steel-man this out. If Donald Trump were to announce – dear god we’re coaching him here.
Thomas: I was gonna say, this might happen! This could happen.
Andrew: Yeah, so let’s say it right here and maybe we’ll get some cred with Clarence. If Donald Trump were to announce that he was hiring the internet research agency, the troll farm in St. Petersburg that successfully hacked the US and Ukraine elections, and said, “yeah, internet research agency, they do good work, they do the best work, and I want them to do work for Trump 2020” and he were to disclose that fact on the appropriate campaign disclosure forms, that wouldn’t be a crime.
Thomas: [Laughs] Wow.
Andrew: It is not a crime to hire foreign nationals to do work so long as they’re appropriately registered. Now would it be with Russia because they’re a hostile foreign power? It might be, Beth Kingsley if you’re listening, and I know you are, write in and let know. But look, it isn’t – part of the genesis behind the law is the notion of transparency, the idea that-
Thomas: Right, you want the voters to know what’s going on at least so maybe they could make the decision, hey, this person is hiring people from Russia, I’m not totally cool with that, I won’t vote for them.
Andrew: Exactly right. Exactly right. Okay, so the law is clear that opposition research is a thing of value, and that gets to – Ben wrote in and asked us a question, and said “hey, anything of value, does that really count Trump trying to dig up dirt on a political opponent? Suppose that Biden had committed a crime that warranted a joint criminal investigation with Ukrainian authorities, it seems like trying to spark an investigation into that conduct could be appropriate and the fact that Biden was a political opponent would be irrelevant. Would that still count as receiving anything of value personally?”
It’s a good question, but it was directed at the wrong part of this statute. If there is a legitimate – and this is why I said that I think the defense in the House of Representatives – the defense in the Senate, is going to move to the corrupt intent part. If Donald Trump had engaged in a legitimate joint inquiry in Ukraine as to corruption involving Joe Biden or Hunter Biden, even if that were to benefit him personally, that would not be a crime, it would not be bribery, it would not in my view be impeachable because it would fail – not because it’s not a thing of value, but because it would fail the corrupt intent prong. One of the things to keep in mind is opposition research is very often true, right?
Andrew: The fact that it’s true doesn’t mean that it’s not a thing of value. The fact that something is valuable to a President doesn’t mean that it’s corrupt in receiving it.
Andrew: It’s valuable to a President to win a war. When Barrack Obama managed to kill Osama Bin Laden that was absolutely valuable to him as a President in terms of political capital. But so long as he didn’t do that with corrupt intent, so long as he didn’t hold hostage killing Osama Bin Laden and coordinate it to the timing so that it boosted Democratic reelection chances, that’s how you convert, it’s the corrupt intent that converts an ordinarily lawful activity into an unlawful activity. So the fact – and this is, I really wanted to hit this question, we can sort of wrap this all up, but I have seen a fair number of Uncle Clarences and Uncle Franks who are saying, well, look, what if Joe Biden actually did this thing?
Your answer, if you’re an Opening Arguments listener and you are pro impeachment, your answer needs to be sure, let’s find that out. That’s what an impeachment inquiry is meant to do. Is meant to say was this a legitimate multinational law enforcement exercise undertaken to help root out corruption of whatever or was this undertaken with corrupt intent? And tell Uncle Clarence, hey, look, if the witnesses show that this was a legitimate exercise then great! I’ll concede-
Thomas: Right, but I don’t think we condition military aid on routine police investigations, do we?
Andrew: [Sighs] This is why you’re the best host in the business.
Andrew: No, seriously, that absolutely brings us to the last part and the definition, why you see quid pro quo, because all of those criteria – you have to corruptly seek, receive, accept, something of value, in return for being influenced in the performance of any official act. That’s what’s being summarized as the quid pro quo. Here, the official act is disbursement of funds authorized by the US Congress to Ukraine. Here, I’m sorry, we’ve tried to be super fair to you Uncle Clarence, but here’s where we’re gonna beat you up if you’ve advanced this argument.
I have seen some Republican sources going well, you know, the President has to be convinced that Ukraine isn’t corrupt and that they’re on board and that they’re a good partner. No. He. Does. Not. The funds to Ukraine were authorized, by the way, in a bipartisan way, from both Houses of Congress, and they were not subject to revision, review, oversight, by the Department of the Treasury. There was absolutely no conditions on doing any kind of other investigation. The Senate already did that investigation, they already determined oh hey look, we’ve looked at the situation in Ukraine, they are a strategic partner.
So Congress had already authorized and determined that $391 million of aid was to be sent to Ukraine. That was not subject to any other condition. Sometimes they do that, we’ve talked about that before, and there would be nothing improper with Congress authorizing the transfer subject to presidential approval. That’s not what we had here. It was authorized, it was to be disbursed, that is an executive branch function, and OMB (that is Office of Management and Budget) was directed, we believe, by the President or by those acting at the bequest of the President, to withhold the transfer of the funds.
That’s why we’re using the phrase quid pro quo and that’s why it’s misleading. It’s not just that there are things for value on both sides, it is that the President sought a thing of value. Corruptly.
Thomas: In exchange for something that wasn’t even his to restrict!
Andrew: Exactly right.
Thomas: This wasn’t money that Congress passed for the President’s personal goodie bag to hand out to nice and good children worldwide if they do what he wants regarding Democratic rivals. No! If I may offer an analogy, my specialty here on the show, if Andrew cuts me a check for doing some yardwork and I go to the bank, I’m like oh, hard earned money, I’m just gonna cash this out, and then the teller is like “well, I’m a good Christian and I don’t really like that you don’t go to church Thomas so I wanna make sure you go to church in exchange for me cashing this check of Andrew’s money.” Is that kind of like what happened?
Andrew: Yeah. Or, to use my favorite analogy, it’s like Democratic governor Rod Blagojevich-
Andrew: Offering up Obama’s Senate seat for sale. Again, lordy, there were tapes.
Thomas: I would say that’s a little different though because – correct me if I’m wrong – he did have the power to do that, he just couldn’t do it corruptly for money, right?
Andrew: Yeah, exactly right! But again, that’s why it fit the precise terms of this statute. He sought-
Thomas: Right, I’m just saying for the analogy, that fits the corrupt part, but it would be like if he was also offering a different seat in another State that he didn’t even have control over, right?
Andrew: [Laughs] Yes, yes.
Thomas: It’s not Trump’s money to delegate!
Andrew: No, that’s an excellent point and it is yet another point of dis-analogy that makes it even stronger in the case of Donald Trump because this was not an official act over which he had discretion to begin with. If you assume that it is then that takes it into the Blagojevich territory, which can still be a crime. But there you go, that’s our impeachment inquiry-
Thomas: We got Uncle Clarence! We got him! I just heard back, he called, he’s convinced. We got him.
Andrew: You know, all I can say is the point of an inquiry is to gather the information.
Thomas: [Laughs] Yeah, to inquire.
Andrew: Yup. And we need to do this in the particular fashion that it is proceeding now which, by the way, now has been authorized by H.R. 660 because we no longer have a special counsel, we no longer have an independent counsel and that’s what we’re doing. Legitimately.
I know you think, Uncle Clarence, and you’re probably right. We’ve pre-judged where we think the evidence is likely to go, but I will say this, if there is exculpatory evidence there are Republicans on the House Intelligence Committee. They will make that known. If it demonstrates that it’s insufficient to show that there’s corrupt intent, they will make that decision. The only way to determine whether the intent was corrupt or not is to find out, to get to the bottom. That doesn’t make something a witch hunt, that doesn’t make it unfair, that’s just how criminal investigations proceed.
Thomas: Well, good thing zero House Republicans voted to even inquire about this.
Andrew: Yeah. [Sighs]
Thomas: And in fact two House Democrats voted against it, so, there ya go.
Andrew: [Laughs] There ya go.
Thomas: Alright, well in true Andrew fashion you’ve left very little time for yourself in the remainder of this episode, however…
[Commercial – lightstream.com/oa for an interest rate discount]
Thomas: I believe you had another item on the agenda and that is involving embryos?
Pre-Embryos in Connecticut
Andrew: Yes, yes. So this is, I think, a really, really interesting case.
Thomas: By the way, Uncle Clarence you’re free to go.
Thomas: You’re free to go, but you should stay because there’s fun stuff later.
Andrew: But if you’re pro-life you might wanna stick around for this segment too, ‘cuz you’re gonna leave super annoyed.
Andrew: So invitro fertilization is becoming increasingly common as couples have fertility issues and one of the-
Thomas: Well people are having kids later and later, too.
Thomas: It’s good.
Andrew: So one of the questions, when you proceed with invitro fertilization what happens is the woman’s eggs are extracted, they are fertilized and then you proceed, the important part is that you extract and fertilize multiple eggs in order to proceed with the treatments because the treatments have a variable rate of success.
Andrew: This is something that a corner of the pro-life movement is calling the frozen embryos, fertilized eggs, “snowflake babies.” The question-
Andrew: I guess because they’re frozen in snow? I don’t know. Snowflake sounds – I guess they’re not thinking about it like the same insult for liberals of-
Thomas: I was gonna say! [Laughs] Are you triggered you snowflake embryo?
Andrew: [Laughs] No, and so the question becomes at various levels what happens to those frozen embryos. I wanna tell you, as far as I know in every state in the union the answer is whatever the parents want to have happen to those frozen embryos. Where this becomes a question, well you wanna take a guess? This is where the – since we’ve dismissed Uncle Clarence we can go back to being our unabashed liberal selves here, this is where the party of small government loves to get involved.
Andrew: That is, all of a sudden now what if the couple gets divorced?
Thomas: Ah, right. Yeah.
Andrew: That’s exactly what happened in the case of Bilbao v. Goodwin. So-
Thomas: Well, I mean that also sounds like a legitimate moral quandary to me but maybe you’ll tell me otherwise? I dunno, it sounds like it seems reasonable to wonder. So this is fertilized, so it’s both sperm and egg, right?
Andrew: Yup. No, no no no no. I love this and, again, I want to steel man the other side because I wanna be very very clear, to steel man the father, the male, has legitimate interests here.
Andrew: Maybe we get some hate mail on that.
Thomas: Well, no, we’re talking about things that aren’t in a woman’s body, right?
Andrew: Correct, yes.
Thomas: Yeah, so I don’t see why it wouldn’t be kinda a 50/50 thing. When it’s in the woman’s body, 100% in my opinion, 100% the woman’s decision, but we’re talking about something that’s not in the woman’s body and both people have combined now, given portions of their DNA or whatever, so it seems reasonable to wonder what the proper moral answer would be. I don’t know.
Andrew: Yup, exactly right. The leading approach as sort of a baseline here is very simply a contractual approach. It says that before you undertake IVF, both parties sit down and they sign a piece of paper as to what happens to the embryos.
Andrew: That seems like the best possible-
Thomas: Seems reasonable.
Andrew: Yeah! The best possible distribution. So you would say in the event that there is death of one of the parties or divorce you can choose – in this case, in Connecticut, the IVF provider had a checkbox option. So the checkboxes were: leave the pre – the court uses the word “pre-embryos” here which, I think, I’m gonna follow – I am not remotely medically qualified to opine here. The court uses the phrase “pre-embryos,” I think that is designed to say because they have never been implanted in a woman. I think doctor Jen Gunter listens to us, if you are a medical professional I’d love – shoot us an email, firstname.lastname@example.org.
Thomas: But make sure to have your facts straight because the last-
Thomas: Sucfructose corn syrup comments were not right, so…
Andrew: Yeah, we got false-
Thomas: Many corrections to the correction, I guess.
Andrew: Yes. [Laughs]
Thomas: Andrew was wrong about being wrong, essentially.
Andrew: I was. But I don’t uncorrect so-
Thomas: Well I will.
Andrew: I appreciate it.
Andrew: So four checkbox options on this form: 1) leave the pre-embryos to the female party; 2) to the male party; 3) to a third-party designee of their choice; or 4) discard (and this is a direct quote) discarded according to the American Society for Reproductive Medical Ethical Guidelines.
Thomas: Question, I thought there were multiples. There’s no like halfsies option?
Andrew: Oh! [Laughs]
Thomas: Am I…
Andrew: I certainly think you could say that you would leave lots 1 through 8 to one person-
Thomas: Gotcha. Oh, is this for like an individual – you have to do maybe for each embryo or something?
Andrew: This form covered all of the embryos.
Andrew: But I see no reason why you couldn’t modify the contract.
Thomas: Divvy it up.
Andrew: You’re actually getting at – it’s really interesting, you’re getting at the way in which the trial court tried to bail on making this decision. [Laughs]
Andrew: Which I’ll get to in a second. So the parties, while they were married, checked the checkbox of “discard the embryos.” We get divorced, discard the embryos. You can totally understand why a couple would make that decision.
They got divorced and I don’t wanna speculate on the motives of the ex-husband, certainly there are amicus briefs filed in this case by various pro-life organizations and their argument was that contract is void as against public policy. It’s not any good because pre-embryos are human lives and you can’t have a contract for disposing of human lives any more so than you could have the classic-
Thomas: Oh, okay, well that’s stupid. Never mind.
Thomas: So if it was gonna turn on that, yeah, no, I see why you were dismissive of this. Yeah, so that’s stupid.
Andrew: No no no!
Thomas: Case closed!
Andrew: [Laughs] It’s good to bring it up. Look-
Thomas: Embryos aren’t humans!
Andrew: Embryos aren’t human. Aren’t human beings.
Thomas: Not persons, I guess.
Andrew: Yes. They are not human persons with rights, they are human DNA in the same way that your fingernails are human, you know, your human DNA. Now the question is, is that contract void as against public policy in the same way that Thomas, you and I sign a contract-
Thomas: Yeah. To take out the competition!
Andrew: Right, yeah!
Thomas: Hire a hitman.
Andrew: Yeah, I’m hiring you as a hit man.
Thomas: We’re coming for you Daily podcast or something, or somebody!
Andrew: Yeah! [Laughs]
Thomas: I still listen to that one.
Andrew: You, yeah, you go take out The Daily and I’ll pay you $100,000. I pay you the $100,000 you’re like, nah, I’m not gonna do that, I cannot go to court to sue you-
Thomas: Right. [Laughs]
Andrew: Either to get my money back or specifically-
Thomas: Your Honor, we had an agreement. I would kidnap Michael Babaro and he would give me the $100,000. I held my end of the bargain but I don’t see the money.
Andrew: [Impersonation] The law describes a contract as unbreakable!
Thomas: [Impersonation] Un-breakable! How many Simpsons references can we fit into one show?
Andrew: Yeah, pile them in.
Thomas: This is, yeah, this is pushin’ it.
Andrew: Yeah, it is! So there are, the other approaches involve what happens when there’s doubt about whether a valid contract was entered. So other than the contractual approach, you could have an approach that is a balance approach which the court weighs each side’s interest in the pre-embryos and then figures out how to adjudicate based on the relative interests of the parties.
That, for example, is the approach that the State of New Jersey has taken. Then there’s another approach that overlaps a lot, which is the contemporaneous mutual consent in which both parents have to agree to a disposition at the time of the disposition. If the parties do not agree then the pre-embryos, they default to they remain in storage. Again, remember, this is one cell. It’s a teeny-tiny thing, it takes up also no space in a freezer.
So there is some concern in the long term about maintaining frozen embryos indefinitely but one State has erred on the side of unless we agree what to do at the time of destruction then the parties, then we default to keep the frozen embryos, maintain them in cryogenic stasis. That is the State of Iowa. So the way in which the trial court tried to punt on this was by arguing that the checkbox approach was not a sufficiently valid contract.
Andrew: They said look – so think of how this is playing out. The husband goes into court and says “I want to maintain the embryos, my wife wants to destroy them, I know I signed a document that says I would agree to destroy them in the event that we got divorced and I know we got divorced, but that contract is no good, that’s the hitman contract.
Trial court, I want you to invalidate that contract because it’s void as against public policy.” The trial court said, [Sighs] look, we’re not gonna say that. We’re not gonna declare that pre-embryos are the equivalent of adult human beings. But we are gonna say in this case that we’re troubled by the checkbox thing, it doesn’t seem like that was really a well thought out contract, it doesn’t seem like there’s consideration, so the contract is no good and in the event that there’s not a valid contract then we should just default to maintaining the embryos.
What the Connecticut Supreme Court unanimously said was, look, the trial court is just trying to duck this. [Laughs]
Andrew: This is not the kind of standard you would use for any other contract. You know why we know? Because lots of contracts contain just checkboxes. Try and get in and be like, well I had no idea what I was buying from Microsoft when I – right? And good on the Connecticut Supreme Court for saying, again while emphasizing the narrowness of their holding and concerned about wading into the abortion minefield, to say this is a perfectly reasonable procedure to try and adjudicate the intent of the parties at the time of the creation of the embryos and that that’s a valid mechanism for adjudicating what happens to those embryos going forward.
Again, you and I are both pro choice so maybe this is not a surprising political position to take, but I don’t have a problem – remember, there were three other options on those checkboxes, right?
Andrew: Nobody is saying, [Laughing] kill all the embryos!
Thomas: It wasn’t like a default checkbox that they skipped or something.
Andrew: Nope. So you may see some coverage of this on either side of the abortion debate and certainly I think we’re going to see more of this because of the state of invitro fertilization. This is only going to continue to be an issue going forward, this is not the court taking a position right now other than saying we are not taking the very extreme position that a fertilized egg that has never been implanted in a human being is not an adult person with rights. If you’re of that position yeah, you’re probably disappointed in this.
Very few Americans are of that position. It’s a discrete and identifiable group that is, but it is a very, very extreme minority. This seems like a good result regardless of where – if you’re anywhere else on the abortion debate spectrum this seems like a pretty good result to me. So we did a little mini explainer.
Thomas: Alright, but we know the judiciary’s been ruined for decades so do we cut to never being able to destroy an embryo ever?
Thomas: When does that happen? When does that go into effect? Is that current-
Andrew: Look, so far, gets to the last kind of question on this. This was a question decided under Connecticut State law by the Supreme Court of Connecticut, which is sovereign in terms of being able to interpret Connecticut State law principles. Can you appeal this to the Supreme Court? The answer is you can but this would be a terrible, terrible case to try and appeal to the Supreme Court, because what you’d have to argue is that the Connecticut Supreme Court State ruling violates your constitutional rights and the only way to do that would be to argue-
Thomas: Well they would say the embryo-
Andrew: Yeah, frozen embryos are persons under the 14th Amendment. This is about as unfavorable – so they may. The time has not run on filing a cert petition. My belief is that this Supreme Court would not grant cert on these facts even if they want embryos to be declared human beings because the facts are so bad, but you know, we’ll find out.
Thomas: Alright. Okay, well hopefully you’re right about that. Uhhh. But that’s all the time we have.
Andrew: That’s not to say the Supreme Court [Laughs] yeah.
Thomas: Yeah. It’s time-
Andrew: Won’t take terrible cases.
Thomas: Right. But it is time to thank our patrons over at patreon.com/law and it is First Timer Friday so why don’t you start us off with our new patrons?
[Patron Shout Outs]
Thomas: Now it is time for T3BE and I think I’m on a good run, right? I don’t remember.
Andrew: Yeah, you just got a real property question right, so-
Thomas: Well that’s great!
Andrew: You can’t do better than that, right?
T3BE – Question
Andrew: Alright Thomas, we have a contracts question for you, so if you can handle real property this should be a walk in the park, right? A carpenter contracted with a homeowner to remodel the homeowner’s home for $10,000, the contract price to be paid on completion of the work. On May 29th, relying on his expectation that he would finish the work and have the homeowner’s payment on June 1, the carpenter contracted to buy a car under the following terms: “$10,000 in cash, if payment is made on June 1; if payment is made thereafter the price is $12,000.”
Andrew: The carpenter completed the work according to specifications on June 1 and demanded payment from the homeowner on that date. The homeowner, without any excuse, refused to pay. As a result, the carpenter became very excited, suffered a minor heart attack-
Andrew: -and incurred related medical expenses of $4,000.
Thomas: [Laughing] Oh my-
Andrew: The reasonable value of the carpenter’s services in remodeling the homeowner’s home was $13,000.
Thomas: Oh my gosh.
Andrew: So in an action by the carpenter-
Andrew: -against the homeowner, which of the following should be the carpenter’s measure of recovery? A) $10,000, the contract price. B) $14,000, that’s the contract price plus $4,000 for the medical expenses incurred because the homeowner refused to pay.
Andrew: C) $12,000, which is the contract price plus $2,000, which is the bargain that was lost because the carpenter could not pay cash for the car on June 1.
Thomas: [Laughs] This is a great question.
Andrew: Or D) $13,000, the amount the homeowner was enriched by the carpenter’s services. Yeah, I love this question, I’m pretty excited.
Thomas: I’m, hoooo! Think of how many combinations they left out that I fortunately don’t have to choose from.
Andrew: [Laughs] E-
Thomas: Ah wow. Umm. Yeah, that’s tough. I, uh. Lots going on here, this is a tough one. I’m skeptical of this $2,000 bargain question, I mean it’s- [Sighs] part of it is reasonable, like okay, well, he wasn’t able to do that so therefore it’s kind of the cause of losing out on $2,000, the bargain for the car. At the same time, I feel like you could easily stretch that into being absurd. Like if some guy’s like “I’ve got a surefire business plan for you, if you put down $10,000 I’ll give you $1 million the next day!” So therefore you have $990,000 of damages. That could seem ridiculous on the $10,000 job, so I’m skeptical of that premise for that reason because I don’t think that’s sustainable, but I don’t know, I could be wrong. It might be… [Sighs] It might be.
So the one I’m most skeptical of is that $2,000. The homeowner without any excuse refused to pay, as a result the carpenter became very excited, suffered a minor heart attack. So the medical expenses, that’s… [Sighs] I’m also a little skeptical of that because that’s sort of like the – I think we’ve talked about the glass person whatever principle [Laughs] if you punch someone and they just shatter into glass are you a murderer or what? I don’t know, now I can’t remember. But [Laughs] let’s see. A is just $10,000. Gosh, and then again, the reasonable value of the carpenter’s services was $13. So I’m skeptical of all of it.
I dunno! Because if they didn’t pay by the deadline is there a reason that you would get the reasonable value versus what you agreed to? I [Sighs] I’m actually not even sure that’s true. Like I could see some sort of penalties but I don’t really know how you’d figure that necessarily to be $13,000. If it’s like, okay, you didn’t pay me on time therefore I’m gonna win in an action a greater amount than I was going to charge you because of the reasonable value. I mean honestly I’m kind of struggling to see the logic.
Usually when we do these questions the question is what did I lose out on by you not paying me, essentially, and these are all kind of plausible, but – and also, there’s the idea of wanting to be able to break the contract if it would be good for commerce or whatever, that’s kind of what you’ve talked about before.
So A, you’ve got $10,000 in the contract price which is ah, that’s an answer. That’s plausible to me, as much as it seems unfair that you wouldn’t get anything I dunno, these are kind of tenuous these damages. B, $14,000, the contract price plus the medical expenses. I just don’t. [Sighs] That just doesn’t – getting excited by not being paid and having a heart attack, it just seems a little too [Sighs] What’s the word?
It doesn’t seem like it’s right, I can’t remember the legal term you always use. Approximate cause or whatever? I don’t, you know, you have a heart problem, you can’t just get excited and suffer a heart – if getting excited gives you a heart attack then what happens when you [Laughs] have sex with your wife or something. Are you having a heart attack every night? I don’t feel like getting excited is enough reason why the person’s liable for these expenses.
C, $12,000, the contract price plus $2,000, the bargain that was lost. Ugh, that’s close but I don’t know! I feel like – I mean, again, you could take that to absurdity if you lost like a billion dollar bargain it seems like that wouldn’t be reasonable, so by that logic I don’t really like B or C. D, $13,000 the amount the homeowner was enriched by the carpenter’s services. I could- Augh. Okay, now I see the logic. The logic is you’ve broken the contract, so now I’m just gonna go after the amount that you were enriched by my services. I actually – okay, now I see that logic, so I’m kinda between A or D, believe it or not. This could be so bad, it honestly could be between B or C and I’m just so far off, but you know?
I’m gonna go – D is really jumping out at me, so I’m gonna go D, $13,000, the amount the homeowner was enriched by the carpenter’s services. I just – that one is jumping out to me, I think the other ones are too loosy-goosy in terms of being actual damages. So D is my final answer, I was between A, B, C, and D. [Laughs] But no, Thomas’ Second Chance was kinda A and D because I’m really just a stickler with these [Laughs] damages I guess? But I’m gonna go with D, final answer.
Andrew: Alright, and if you’d like to play along you know how to do that, just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune and by the way I will be back in the country so I will actually pick the winner and read them out and future Andrew will hop out of the Delorian and it’ll be amazing so this is one you wanna play along with, I think.
Thomas: [Laughs] Alright, nice hard sell, I like it.
Andrew: I like it! We need to make sure people keep playing. Actually, lots of people play T3BE-
Thomas: The do.
Andrew: I think they love Brian more than me-
Thomas: And this is a really tricky one. I’m excited to see people’s answers to this one because this was tricky. Alright well that’s our show today, thanks Andrew for another, via Italy, another deep dive, another yodel session. We need it, the people need you, and I’m so glad you were able to do it. We appreciate you. So thanks so much and we will see everybody next time.