Thomas: Hello and welcome to Opening Arguments, this is episode 332. I’m Thomas Smith, that over there is Andrew Tor-rez. How’re you doing Andrew?
Andrew: [Laughs] I’m doing fantastic Thomas, any reason you decided to shift the emph-asis to the second syll-able on my last name?
Thomas: Oh, I think this is not really you, this is the clone that you sent. You’re still in Italy.
Thomas: And you sent either a clone or just somebody who can do your voice, I dunno, and maybe that’s why. Yeah, are you back? You’re finally-
Andrew: I’m back, baby!
Thomas: I’m so glad to hear it because big news, big news! The Astros cheated the year that I went to the [Clownhorn] world series so we gotta talk baseball law. Forget everything else, it’s time for baseball law.
Andrew: Yeah, I’m actually-
Thomas: I know I make that joke every time but gosh dangit I really want to- [Laughs]
Andrew: I’m actually well prepared to discuss the Astros thing. Have you seen? There’s a video of them-
Thomas: Yes I have.
Andrew: Yeah. The video is A, it’s amazing and instantly damning and B, it’s one of those where you’re like how come? There’s seven coaches on the field for the other team, how come one of them didn’t notice boom before the- [Laughs]
Andrew: But it looks super bad.
Thomas: In all seriousness, to tie it to something you’ve said, I think this is more of a Law’d Awful Movies thing when they talk about, you know, horrendous law firms doing illegal things? This is exactly an illustration of the point you made which is, look, you can’t be criminal law firm because people move around and it happened with this. Pitchers move around and they’re like hey, yeah, remember 2017? Yeah, we totally cheated.
Thomas: So it’s kinda like the thing you were talking about with – I don’t know if that was way back in The Firm days.
Andrew: I actually think that that line was from – again, it’s way back but when we did Run Away Jury because Jean Hackman was, you know, the managing-
Thomas: Oh that too, yeah.
Andrew: -partner for you know law firm that helps you put out a hit on bad, yeah it was-
Thomas: [Laughs] So ridiculous!
Andrew: That was a bonkers movie.
Thomas: So see? I tied it together.
Andrew: Yeah, it was great.
Thomas: It’s all part of the show.
Law’d Awful Movies
Thomas: Speaking of, we are due for another Law’d Awful Movies very soon.
Thomas: It’ll be coming at you within a few days, so that was all great and intentional and now we have to talk about the real news, impeachment. There is so much. I also know that you had an announcement or two.
Vulgarity for Charity
Andrew: Oh, yeah yeah yeah. I just wanted to plug you and I every year we participate in Vulgarity for Charity with Puzzle in a Thunderstorm and that is always under way in November. It is in support of a charity that you and I both really, really like called Modest Needs that works – I love this charity. It works with people who are ineligible for public assistance but still poor, which is a huge segment of our country and it’s something like 50% of households are like one missed paycheck or one unexpected expense away from drastic consequences like having to take out a payday loan and that sort of thing. What Modest Needs does is they pay a bill – it’s crowdfunded and then they pay that bill directly, right?
Andrew: So there’s almost no overhead, it goes directly to the creditor. If you go on and you read the stories of folks there it’s a tremendous, tremendous organization. Last year we raised an eighth of a million dollars. We raised $125,000 just about for Modest Needs. This year we have a matching, an anonymous matching donor that is going to double all donations up to $100,000, so-
Andrew: Yeah! So our goal is at least $200,000, I think we can do it, we’re on a good track. Here’s how it works, you go to modestneeds.org, you donate at least $50. They send you a receipt. You email that receipt to vulgarity for charity (that’s all written out as words, not with a number) firstname.lastname@example.org, and you get a free roast. You can have Thomas or I do the roast, you can have people who are much better at doing the [Laughing] roasts. You can have Eli or Tom from CogDis who’s brutal and we will roast anybody and anything that you want. So it’s an opportunity for you to all the clownhorns you want Thomas and I to say and to direct your ire at, you know, there are a bunch that I’m prepping for already including a roast of Rudy Giuliani, so-
Thomas: Oh wow! How do you roast someone who is a roast, though?
Andrew: Yeah! [Laughs]
Thomas: He’s a character, he’s like someone puts on a mask at one of those roasts and does Rudy Giuliani, how do you? It isn’t – okay.
Andrew: Rudy Giuliani looks like the before, when you pull off the mask of the Scooby Doo villain and it’s just another mask on underneath? Yeah.
Thomas: You shouldn’t have used your best roast before, now you’ve gotta think of a new joke!
Andrew: Yeah, literally that’s my “A” material, now I’ve gotta write something else.
Andrew: So, yeah, support vulgarity for charity and Thomas you and I are gonna be on, I dunno, one of the puzzle shows doing our roast so it’s a tremendous, it really is a great cause.
Thomas: It’s legitimately amazing how much money they have raised for people who really need it, it’s awesome and I’m so happy to be a part of it every time. I can’t wait! So, yeah, we encourage you to do that. Go to, that’s modestneeds.org, you email that receipt to Vulgarity for Charity or you just donate to modestneeds.org, that’s cool, but in order to “count,” I guess, for the total, you gotta email ‘em. Or is there some way to specify that-
Andrew: Oh! No, that’s a really, really good point. Look, it’s $50 bucks to get the roast and I get that some people, we have folks who are students, who are single moms, if you can’t give $50 bucks and you give less, still send that receipt to Vulgarity for Charity because we still want to count it. If you give $5 bucks that’s great! Send it and send the receipt over to Vulgarity for Charity.
Thomas: Jeeze, who’s the poor accountant they hired?
Andrew: Yeah, well-
Thomas: Oh, it’s me, isn’t it? Damnit! No, I’m just kidding.
Andrew: [Laughs] ‘Cuz it’ll get doubled! So your $5 bucks becomes $10.
Thomas: Oh, yeah, that’s a great point, so everybody do that. Make sure to do it. Okay, we gotta get to impeachment news, it’s been too long of baseball talk and V for C talk, but that’s okay it was important. Now, impeachment. I can’t wait to hear what you think of the official start of, the kickoff, of the actual impeachment proceedings.
Andrew: Yeah, let me give you my conclusion first which is I’m really, really happy with what Adam Schiff and the Democrats on the House Intelligence committee are doing, and I’m gonna break that down from a legal perspective. The one thing that I’m gonna do on this show and I encourage you, again, to share out this show with your Uncle Clarence who’s maybe willing to listen. I wish – I get that there’s a time limit, so the one thing that I wish that Adam Schiff would do in his introductory statements that we’re gonna do on this show is, that is a reflection of how lawyers give opening statements, and that is you start with the legal standard of the thing that you’re trying to prove.
Andrew: Again, on Ukraine there is one law here. That’s part of why this is a really straightforward story to tell. That law is 18 U.S.C. § 201. It’s the bribery statute. There really are – I’ve described it as three elements, there really are two overarching elements to that statute. So the first two elements are that an elected official has to demand something of value in exchange for being influenced in the performance of any official act.
We’ve gone back and forth, if Republicans wanna call that, and the press has already seized on that as quid pro quo, quid pro quo, I’m okay with using that rhetoric. We’ve talked about ways in which it’s misleading, but I kind of view it as the messaging war over Obamacare for a while. [Laughs] Frank Lutz was like “we should call that Obamacare” and Republicans, following slavishly on Frank Lutz’s messaging, called it Obamacare. After about 6 months the Obama administration was like okay, fine, let’s call it Obamacare.
Thomas: Well, yeah.
Andrew: I am Obama and it does provide care for people.
Thomas: Right, but then when people polled “how do you like Obamacare” versus “how do you like the Affordable Care Act” there was a vast difference, so maybe that wasn’t a good idea, but I was gonna say this reminds me of setting up the whole collusion thing, you know?
Andrew: Yeah, yeah.
Thomas: Which was a pretty, honestly it was a pretty good trick they pulled, but this one’s funny to me because it’s like they tried to do the same thing, oh we’ll set it up for quid pro quo, quid pro quo, aha! Yes! We’ve set you up for quid pro quo, and we review the evidence and – oh wait, there actually is a pro..
Andrew: [Laughs] Yeah!
Thomas: Well we should’ve picked a thing that’s – uh, murder! We should’ve said murder. You’re saying there’s a murder and there’s not, clearly! They kinda messed up when they’re just describing exactly what happened.
Andrew: Yeah. I think – A, really, really good point on Obamacare, but put a pin in this, I think Republicans are really starting to back away from and concede the quid pro quo part, because what we saw in the hearings were very little that contested the underlying facts on those two elements, so where they’re really gonna shift to is the third part.
Again, only three elements, so the first two are subsumed by the quid pro quo. Is there a demand of something for value in exchange for being influenced in the performance of any official act? Yes. Then, the question is was that done with corrupt intent? That’s where the Republican defense is shifting and, by the way, that is exactly what we predicted! [Laughs] I’m gonna go on record with another prediction as we go through the testimony, but I thought we would look at some of the defenses that were advanced during the Taylor and Kent testimony, and talk about the legal significance of that.
Thomas: Yeah, I watched the whole thing, I wrote down a few of them, I’m curious to see.
Andrew: Yeah, go for it.
Thomas: Well, I don’t wanna – I mean the problem with this whole thing, it’s hard because the injustice of it all is so frustrating that I have a hard time just talking about it.
Thomas: Because it’s all there, clear as day! Clear as day! From my mind, I’m curious what you think about this, how do you feel like the Democratic questioning time was used? Because it’s hard, it’s clear as day! You have – the guy is like yeah, he did the thing, it was Mr. Trump in the conservatory with the thing, and then that’s one minute, then you had 44 minutes of oh, so where’ the conservative – just a bunch of stuff, we already know what happened but we still need to ask a bunch of questions around it versus the Republicans which was just throw spaghetti at a wall and some of it’s really ridiculous spaghetti from 2012 that doesn’t make any sense.
Thomas: So how do you feel like the Democrats used their time in the questioning? Was there enough done there or did it just – I guess my worry is that spending 45 minutes on a thing that takes 1 minute to understand was maybe downplaying the significance of it? But maybe that’s just me.
Andrew: So I – let me answer that in a couple of ways. The top line is I thought the questioning was really great but part of that is that I’m a lawyer, so one of the things that I like about having the extra 44 minutes after you get the topline conclusion out, there are really two things that I like about it. The first is as you reveal more details you make it harder for people who have concocted ad hoc lies to stick by those lies.
Andrew: So the one new piece of fact that came out, which was the phone call in the restaurant that we don’t need to get into because if you’ve watched any news you-
Thomas: Well, it’s worth mentioning what it is, just in case people – I know there are people who listen to us and don’t watch any news? [Laughs]
Andrew: Good for them!
Andrew: Yeah, no, so Bill Taylor testified that a member of his staff overheard Ambassador Gordan Sondland call the President of the United States on a cell phone, by the way, so you know, that’s another nice needle for Uncle Frank of remember all of the concern about how Hillary Clinton was conducting State Department business over an unsecured server, you know, but iPhone 10, totally fine. Pull back that needle, Uncle Frank’s not listening anyway.
Thomas: Yeah, we lost Uncle Frank.
Andrew: But Uncle Clarence-
Thomas: Uncle Clarence, welcome to the show.
Andrew: Come on, Uncle Clarence! You gotta go back and admit that really wasn’t a great reason not to vote for Hillary Clinton, anyway, so Sondland calls Trump on an unsecured cell phone in the middle of a restaurant in Ukraine.
Thomas: Oh my god.
Andrew: And staffers nearby can hear Trump shouting so loudly-
Thomas: I believe it.
Andrew: Yeah, I believe it too.
Andrew: That what he cares about is the investigation and not about Ukraine.
Thomas: The Bidens specifically.
Andrew: Right, and the Bidens in specific. That staffer will now testify tomorrow, will testify behind closed doors as you’re hearing this and then presumably if there is interesting information will testify before the committee in the same way that Taylor and Kent testified before the committee. So point one is, when you have witnesses who are telling the truth and who are career civil servants and diplomats and who are likely to have evidence that corroborates that they’re telling the truth it makes it really, really harder for somebody who’s lying to keep up their lies. Gordan Sondland, by the way that’s the ambassador to Ukraine who gave a million dollars to the-
Thomas: The guy who basically bought the ambassador position.
Andrew: Look, again, I don’t wanna stand in a glass house on this. Buying ambassadorships by donating to Presidential campaigns is a time honored scumbag move on both parties. There is no doubt in my mind you could go back and you could probably find Obama and Bill Clinton donors who got ambassadorships and other cushy government positions. I think it’s qualitatively worse under Trump, but, you know, Uncle Clarence is probably rollin’ his eyes on that and we want to steel man the other side as much as possible. But what we do wanna point out is this non-career diplomat Trump loyalist who bought the ambassadorship pretty much looks like he’s flipped, has already amended his testimony once as information came out and my suspicion is – well all I can say is I’m definitely gonna be watching Tuesday’s hearings! [Laughs]
Thomas: Yeah, that’s an interesting case because I think he didn’t want to go against Trump.
Andrew: I think that’s right.
Thomas: But he also was like, well I’m not gonna – the problem with Trump is he has demanded out of everybody full 100% it was a perfect call or else you’re dead to me, pretty much. He’s demanded – so he’s allowed no room for any Republican to be like, well, you know, you’ve gotta admit some of this is bad but it’s not impeachable. Even that he’s – so Sondland was trying to do some sort of version of that for a while and then instantly I think Trump turned on him so he very well may turn because Trump is just so awful that he can’t even brook any dissent or whatever so I’m curious that you think he’s turned but would you expect, is he gonna be a witness for the…
Andrew: We will know on Tuesday.
Thomas: Yeah, I wouldn’t be surprised if he doesn’t go that far in his flipping, but that’s just me.
Andrew: This is part of – so I mentioned kind of point one on the 45 minutes, you develop a more full factual record. Point two on the 45 minutes is you get a good sense of who’s going to be a good witness or not. One of the things that was super clear to me as a lawyer is Bill Taylor is going to be an excellent witness during the impeachment of Donald Trump. He will be one of the witnesses, probably three or four that are called upon to deliver live testimony.
He’s really good, he’s got an unimpeachable background. You can’t dismiss him as a never-Trumper or somebody with an axe to grind, he’s smart, he’s quick on his feet and he is 95% (in a good way) he’s 95% of the way to endorsing the full Democratic message and that, to me – again as somebody who one of the things I do for a living is evaluate witness testimony – he’s a great witness. I do not think, by the way, and again no insult intended and I hope that George Kent listens to the show-
Andrew: George Kent probably won’t be a witness at the impeachment.
Andrew: He’s – and I hear it in your voice, it’s the same kind of subjective factors. He comes off a little bit more partisan, a little bit less objective, a little bit less gravitas.
Thomas: That’s interesting, I thought you were gonna go the other – aren’t these people probably Republicans?
Andrew: Yes, absolutely.
Thomas: I mean, they’re nonpartisan but-
Andrew: Absolutely they are Republicans.
Thomas: I thought you were gonna say the other way which is that, you know, they really weren’t giving it up. They weren’t, they’re not soldiers for the cause of impeachment by any stretch.
Andrew: Correct. Yeah. So that’s the second thing. The third thing that I would add, and I did wanna talk a little bit about the lawyers for both sides. I think you see, you know, not much needs to be said about Dan Goldman. He was hired January of 2019 as soon as the Democrats assumed control of the House of Representatives to assist-
Thomas: Oh really?
Andrew: -the Intelligence Committee. Yeah, so he’s been working for the Intelligence Committee, he’s been working with Adam Schiff for the past 11 months and before that he was a prosecutor in the Southern District of New York and he’s great. You also saw, a bunch of people have asked about this, you saw Steve Castor who is the Republican lawyer to whom most of the members of the committee delegated their time. I will tell you, Castor is also a very smart lawyer. Watching him, there were certainly in my view questions that were stupid and bad. [Laughs] But I attribute that to the fact that, you know, he doesn’t have much of a case to work with.
Andrew: So I attributed it to two things, A, he doesn’t have much of a case to work with and they’re not trying to dispute the facts, and B, he is in some sense as far as I can tell, a true believer.
Thomas: Okay, well you think so? I was gonna ask you which of those two things it was. Like is he just a guy who’s like well, I’ll take your money but this case sucks.
Thomas: Which is kind of what I was leaning toward, or is he like no, I believe. What is the think that he is a true believer of, then? Could he really believe that Trump did nothing wrong here?
Andrew: So you’re right to drill down on what I mean by “true believer.” So here’s what I mean: He has spent 14 years as a staff attorney on the House Oversight and Government Affairs Committee.
Andrew: He was one of the lawyers who questioned witnesses during the Benghazi hearings.
Andrew: He is, of course, a member of the Federalist Society and has been endorsed by a rogue’s gallery of members of the Intelligence Committee, of members of the House I should say, including Jason Chaffetz, Tray Goudy, so he seems to be in 100% alignment with the farthest right-wing of the Republican party. He is also willing to play dirty in these proceedings.
Again, Uncle Clarence I know you’re listening, here’s my specific evidence. This is just two, but these are two egregiously terrible things that I haven’t seen reported in a lot of places. The first, by far the most egregious is during Bill Taylor’s deposition, not during yesterday’s publicly televised hearings but during the November 6th deposition of Bill Taylor which was held behind closed doors, closed off to the press but for which pursuant to H.R. 660 we now have the transcripts, he outed the whistleblower.
Andrew: He outed the whistleblower in questions to Bill Taylor. I’m gonna link in the show notes, this is page 235-236. If you don’t want to know the name of the whistleblower, and I’m not going to read it on the air, then don’t read these pages. Here was the line of questioning, and again I wanna give the full context so that you can see what he’s doing. So there’s a question of alright, who have you been talking to, and then question.
When did the fact that there was a Complaint lodged about these matters come to your attention?
Bill Taylor’s answer: I’m not sure, Mr. Castor.
Question: The whistleblower Complaint, when did that first come to your attention?
Answer: The whistleblower Complaint?
Answer: I guess when I read it in the paper.
Question: Okay. Which was towards the end of September before it was made public?
Answer: No, no, no. In the newspaper.
Question: Okay. Did anyone try to contact you to find out any information, any firsthand information?
Taylor’s answer: No.
Question: How frequently do you have conversations with the DNI (the Director of National Intelligence) about these issues? Any?
Answer: I think none.
And then here we are. Question: Okay, does a person by the name of, and again I’m not gonna state the name of the alleged whistleblower. Does the person by the name of the ring a bell for you?
Answer: It doesn’t.
Question: So to your knowledge, you never had any communications with somebody by that name?
Now, you wanna steel man that line of questioning you can say it’s just a lawyer zealously advocating, doing his job, that is totally inappropriate to out the name of the whistleblower in a depo – again, you can read this, the name is right there. This is not sealed, it’s not redacted, and since we know via Donald Trump Jr. that it is part of the Republican strategy to bring down public wrath on this civil servant. I find that dirty trickery. It’s not something I would have done even in zealously advocating for my client.
Andrew: That’s point one. Point two and, again, I’ll provide a link for this. During Fiona Hill’s deposition he laughed, openly laughed at her complaining about being smeared by Alex Jones on Infowars, which led to, again, something I haven’t seen. I’ve only been practicing law for 23 years, something that I have never seen before which was Fiona Hill’s lawyer demanding that the record reflect that the questioning lawyer is laughing at the witness and that this is no laughing matter and then led to Castor going “oh well I wasn’t, I laugh at a lot of things, it could just be …” So I’m gonna include that as well.
Make of that as you will, again I’m not saying that this guy is a criminal, I’m not saying that he’s evil, I’m saying I think it is fair to say that he is 100% on board with what the Republicans are trying to do.
Thomas: Sounds like a troll.
Andrew: Willing to fight dirty, yeah.
Thomas: He sounds like a lot of people who are I guess you’d say supportive of Trump where you can’t, you don’t know if they’re being ironic, you don’t know what they actually – he just sounds kind of like a troll but in the end I guess the only thing you know is that they’re probably glad about what’s happening to the country.
Andrew: Yeah, yeah. That could be. So there’s your legal background on the questioners. Obviously I think Thomas you and I both agree that it’s so much better watching lawyers question witnesses than watching-
Andrew: Members of Congress grandstand. [Laughs]
Thomas: It actually made it kind of cool when they let the members of Congress question them. I actually liked that a lot, so I kind of like both.
Andrew: Yeah, I agree.
Thomas: I like that they started with the lawyers, that was a good idea, and then getting different members, Committee members, to ask questions actually that part felt a little refreshing because it was like, okay, now we’re not gonna be in just lawyer speak mode, we’re gonna try to get a little bit more of the storytelling aspec.t
Thomas: You know, there was somebody who went through I think it was Taylor’s military history and stuff and I was like wow, that’s very compelling. I think that made for great soundbite material just in terms of, you know – [Sighs] Sorry, I just get so frustrated with this whole thing. How could any objective observer look at these two witnesses and their records and the fact that they’re probably Republicans, this is not a liberal AOC conspiracy, and look at what they’re saying and then on the other side you’ve got just a bunch of yelling about conspiracy theories and not objectively say, okay, well this is obviously one way.
Thomas: Of course. You know?
Andrew: So let me say two things to that. Number one, I think this goes to your point that you have made all along that every step of the way you have been prescient about and that is that once there is an actual impeachment trial underway that public opinion will shift because now you have the opportunity to get unvarnished, un-intermediated, direct video and audio testimony from these people.
You look at them and the average person – sure, you’re not gonna shake loose the 30% of Trump’s core base, they’re lost, but can you shake loose Uncle Clarence who looks at Bill Taylor and sees a career military civil servant, a guy awarded multiple medals for valor in Vietnam. You know you’re not looking at Bernie Sanders up there, you know – and I mean that with no disrespect to Bernie Sanders, you know you’re not looking at Dennis Kucinich who once called for us to have a love ring around the Pentagon. This guy is not a pacifist. I also thought there was a slight chance he was an OA listener on two occasions, right?
Andrew: [Laughs] At his “no no no, I was not top 5% of my class at West Point, I was top 5 at West Point!” I laughed at that one. And he used our analogy from episode 326 of describing Ukraine as being occupied – I think he said 7%? I’ve seen figures as high as 12%, we said 12%, but he said yeah, 7% of Ukraine is occupied, that’s like if the Russians occupied Texas.
Thomas: Wait he did?
Thomas: I didn’t catch that. Huh. Wow. Well, in answer to what you just said, forgive me but I just have to get this out. I don’t know if it’s going to affect the public because we still, everybody has to be a pundit and it’s driving me crazy. I was watching this on PBS ‘cuz I try, I figure-
Andrew: Yeah, yeah.
Thomas: We’ll just do PBS because I don’t want, you know, and they get done with the whole thing and even on PBS [Sighs] Gosh, Brian, I’ll try to minimize clownhorn usage. You get done with this whole thing and we get this quote that could just be a parody of discourse in the media from now until the end of time, which was “well I really don’t think Democrats moved the needle on this one.”
Does everybody have to be a pundit describing what they think some sort of voter is going to think upon watching?! Can’t we just – what happened? Did it always used to be this way? Why is all of TV, why isn’t anybody just sitting there going, oh well I’ve looked at the facts, I’ve seen the testimony, this is really damning he should probably be impeached. It’s all gotta be, not my reaction, it’s gotta be what I think somebody will react to, doesn’t matter what the facts are, doesn’t matter what the crimes are. Nope! All I care about is did Democrats move the needle.
Thomas: I don’t care if they moved the needle! It’s not the voter’s job to impeach! It’s the representatives job to impeach and it’s the Senate’s job to hold that trial and we’re treating this like if there wasn’t fireworks, all these pundits have this vision in their head, probably from Perry Mason, of what impeachment should look like.
Thomas: Like a guy should break down and say “I did it! I ordered the code red, I ordered the bribery!” Otherwise Democrats didn’t move the needle and it’s just driving me insane, it really is.
Andrew: I couldn’t agree more, so I won’t! [Laughs]
Thomas: [Laughs] I’m gonna need to calm down so we’re gonna do an ad break.
[Commercial – paintyourlife.com text “OA” to 64-000]
Thomas: Okay, we’re done with the ad, I’m not any more calm! [Laughs]
Andrew: Yeah, me neither.
Thomas: I’ll pretend.
Andrew: You’re 100% right. But again remember that there is sort of a snowball of the audience building and at some point the things you see with your own – the question is no longer going to be punditry and moving the needle, the questions is going to be okay, you just saw X witness testify to Y on national television, what do you think about that? And we will be past punditry and into actual reaction.
Thomas: I would hope so, but I also want to point out they’re treating it as thought the American people are, it’s like one of those America’s Got Talent shows where if you get the audience voting by their mobile phone then it’s impeachment. We need to be treating this as, rather than asking the question did Democrats convince a viewer not of just the underlying facts which we all know are bad, but that they did it in a theatrical enough way to convince some alleged not very observant viewer. Instead of that, 100% of the focus should be wow, why are Republicans not doing their job here?
Thomas: Why are they not doing their job, why are they lying? Constantly lying.
Andrew: It should be, and it’s why I started the show this way. 100% of the focus should be how does this testimony demonstrate whether or not the President committed a crime.
Andrew: In particular committed the crime of bribery under 18 U.S.C. § 201. So I think that segues nicely into the next section, which was we saw some of the various trial balloons on defenses get tossed up.
Andrew: I’ll go over the ones that I have, if I’ve missed any feel free-
Thomas: Yeah, I think we have some overlap.
Andrew: So the first one, and again we’re gonna sort of move in the direction that I think the Republicans are going to move towards. We’ve seen, well, Zelensky said he didn’t feel any pressure, so- [Laughs]
Thomas: Right, yeah.
Andrew: Which is irrelevant and false. It’s irrelevant and false in the sense that you never ask the victim of a crime, hey, how’d you feel about that crime?
Thomas: Right, in front of everybody.
Thomas: Yeah, this is like the age old sexual harassment in the office example.
Andrew: Yup. Yeah.
Thomas: Where the boss man is like oh well Cindy was fine with it, weren’t you Cindy?
Thomas: In front of everybody.
Andrew: That is 100%, literally legally speaking that could not be a more perfect analogy. So we don’t need to go any further on that except to say, again, this is why I would start every hearing with those three elements which, again, boil down to two elements. Was there a quid pro quo and was there corrupt intent?
So quid pro quo is demanded something of value. Whether the other side feels pressured, that’s not relevant. It’s not part of the statute, it is not a defense to bribery. If I go to President Trump and I say “I will pay you a million dollars if you will leave office right now,” which would be foolish because A, I don’t have a million dollars and B, Donald Trump would laugh in my face-
Thomas: Wait, we could raise it, though. Hold on, we can raise it.
Andrew: [Laughs] You know, he’s stealing that much every second why would he?
Thomas: Yeah, that’s true.
Andrew: But if I do that Trump can laugh in my face but I’m still guilty of bribery.
Andrew: Yeah, that’s all it takes.
Thomas: Attempted bribery. What is that.
Andrew: Attempted chemistry! Yeah, so that is entirely irrelevant and false in any event.
Thomas: But there is something going on with the timing that I think is maybe worth trying to break down, let me know if I have this right because I do think that while I agree that this defense doesn’t in the end work it makes sense that they’re doing it, it’s probably what I would do too if I were evil, they’re trying to say it’s clear that Zelensky and others maybe didn’t even know about the fact that Trump was going to withhold the thing, and it seems as though that’s maybe because the diplomats involved were trying to not even tell them it sounds like? They did eventually find out but the money was released anyway, so there’s something fishy with the timing of that. Did you have an opinion on that or could you clear that up for us?
Andrew: I do. So this is the argument of well they released the aid anyway.
Thomas: Well that one I think that is just the fact that, what, Politico or somebody was gonna publish an article about how horrible this was so they were like “uuuuuh, release it!”
Thomas: Yes and?
Andrew: And, the aid was released on September the 11th. Congress made a formal request for the whistleblower’s Complaint on September the 10th. This is a defense I predict the Republicans, they’re trial ballooning it now, they are going to very quickly abandon it because the evidence that contradicts their timeline is also evidence that is going to support the argument against, ultimately, where their defense is going to morph down to which is you can’t really prove corrupt intent.
Put a pin in that for a second because that’s ultimately the end of this timeline. In terms of whether and how the aid got released I don’t think you even are going to need much in the way of witness testimony to know that the strong-arming call took place on July 25th and funds were not released until September the 11th at which point, after the whistleblower filed the Complaint, after it was about to go public, after it was clear that you could no longer keep doing this as an illicit backchannel that no one was paying attention to.
Thomas: It also sounds like, I’ve gathered from this, that the guy, the prosecutor was getting ready for a CNN interview, is that?
Thomas: Did I hallucinate because holy crap. This is like you were caught, this is Batman catches the Joker with a bomb or whatever tied to somebody but he stops him and then the Joker’s defense is like but I didn’t do it.
Andrew: I didn’t set off the bomb.
Thomas: Yeah. So you got nothin’ on me!
Andrew: That is exactly right. Keep in mind, the other thing that I think that Kent testified to really effectively that they’ll probably put in the mouth of Taylor, Taylor then endorsed it was the second half of the quid pro quo which is postponing the White House visit. That is, again, unambiguously an official act and you’d seen Republicans doing the “yeah, well it’s ceremonial, it’s kind of a White House visit” sort of thing, and George Kent very powerfully testified that that was one of the most important tools in the diplomatic arsenal.
As a career diplomat, when you are the just-elected President of Ukraine, one of the very most important things to you to solidify your position in the world is to come and meet the President of the United States at the White House. There’s a little more lifting because I think intuitively the idea of, well, meet and greet at the White House, but this is really, it is unambiguous and it is absolutely a thing that the Trump administration held over the heads of President Zelensky. So I don’t think, ultimately, at the end of the day, judging by the first day of questioning there’s not much to say on the facts. There clearly was a quid pro quo.
I do need to mention the stupidest thing I heard on television, and there’s an awful lot of competition for this spot. I don’t know if you heard this.
Andrew: Representative Mike Turner arguing that the 6th Amendment prohibits hearsay testimony. I…
Andrew: Again, I’ll link the 6th Amendment in the show notes, no! No it doesn’t! We’ve talked about hearsay a lot, hearsay is a rule of evidence with 23 separate exception and lots of things that are defined out of it. I think the argument that Turner’s staffer was trying to make for him but did so incompetently is a confrontation clause kind of argument, the idea that you are entitled as a criminal defendant to confront the witnesses offering testimony against you which, again, A, no you’re not during an investigation, B there are lots of exceptions and C, the President will have the right to do that through-
Andrew: So it’s just a nonsense argument, it’s not true, and if you have an Uncle Clarence, Uncle Frank in your life saying that the 6th Amendment prohibits hearsay show them the show transcript. [Laughs]
Thomas: It’s like are we to be surprised that we can only get testimony from people saying oh my god these other people are breaking the law and not the people breaking the law coming in and saying hi, I broke the law. Yeah, of course it’s gonna be people who were witnesses to this behavior, it’s not gonna be-
Andrew: And way worse than that, because the people by and large with direct firsthand evidence are the people that Donald Trump has directed not to comply with the subpoenas, right?
Andrew: So the more that this argument is advanced, and you’re already starting to see Democrats doing this. The more that they advance the hearsay argument, rather than do the Andrew thing because of course I care about the statute. No, no, no. Do the Adam Schiff thing, do the political thing which is yeah, we totally agree, we’d much rather not have hearsay testimony. Can you tell the President to have Mick Mulvaney testify, then? ‘Cuz that would be super cool. How about Rick Perry? Can we get him and Giuliani in here?
Thomas: Furthermore can we even get the notes that the State Department is apparently withholding?
Andrew: Nope, and again, this was a point I was gonna make later but I’m gonna make it now because you bring it up. One of the things that I found incredibly heartening about yesterday’s testimony is something that I shouldn’t have to be, which is you see Adam Schiff with the guidance of the lawyers working for the House Intelligence Committee, preparing to make their case with maximum obstruction by the White House. You shouldn’t have to do that. If you told me two years ago that the President was going to completely obstruct an impeachment investigation I would say yeah, well that’s Nixon, that’s Watergate, it’s over. His approval rating is gonna drop to 30% and he’ll be impeached tomorrow.
Thomas: [Laughs] What a naïve-
Andrew: Yeah, hypothetical Andrew was wrong on that one, but I’m owning up to it. The fact that they are – so yes, the White House has an ally in Bill Barr who is a criminal, and they are falsely, without justification, instructing witnesses not to participate and not to turn over documents.
I mentioned Mick Mulvaney, I’m going to upload, this was just filed two days ago, you might remember the Cooperman case, right? Cooperman was issued a subpoena by the Congressional Intelligence Committee, he was directed by the White House to disregard it so he filed a declaratory judgment lawsuit basically saying okay, like the Mazars lawsuit, basically saying okay Court, tell me do I have to comply with this or not? Initially Mick Mulvaney filed a petition to join that lawsuit as an intervener and yesterday he withdrew that motion.
Here’s what he said via his lawyers. “After further consideration, Mr. Mulvaney does not intend to pursue litigation regarding the deposition subpoena issued to him by the House of Representatives, rather he will rely on the direction of the President as supported by an opinion of the Office of Legal Counsel of the Department of Justice in not appearing for the relevant deposition. In light of the above representation he respectfully suggests that there’s no need for the Court to consider and withdraws his motion.” So that’s where we are. Trump loyalists at the direction of a corrupt Department of Justice are saying nope, I don’t have to comply with a lawful subpoena and it’s on you to force me to do so.
That’s wrong and we’re gonna be litigating that for years, but Trump knows-
Thomas: For years?
Andrew: Yes, absolutely. We will be litigating the aftermath of this for years. So House Committee knows that for many of those witnesses we’re not going to be able to get a judicial order in time. We just aren’t, they can run out the clock, so they are preparing to move forward with documents and testimony from hostile witnesses as a bonus. So are there things that we may get? I certainly think there are things that we may get. A good illustration of that is just yesterday, we’ve talked about the Trump v. Mazars litigation, that the U.S. Court of Appeals for the D.C. Circuit ruled that Mazars has to turn over Trump’s taxes.
Andrew: The Trump administration filed for a petition for rehearing en banc, that was denied 8-3 by the full D.C. Circuit yesterday, so now that is teed up, that must be appealed to the Supreme Court, and so we will get a relatively speedy resolution in Mazars. Reminder, and if you’re thinking well you only need four votes for Cert and there are at least four howler monkeys on the Supreme Court you could think that, but the Supreme Court might also not want to touch this.
Andrew: This is such an open and shut case that we know John Roberts will not vote for Cert but I could see the conservative, the howler monkey contingent, not granting Cert.
Thomas: I mean it’s the one upside to the fact that we’re stuck with these howler monkeys for life-
Thomas: -is that Trump has nothing on them now.
Andrew: Correct, yeah.
Thomas: So they don’t have to be, yeah…
Andrew: Yeah, and that they are, if you’re on the Supreme Court and you’re 50, you are thinking about using your power to shape conservative policy for the next 30 years. So it would not surprise me if Kavanaugh, Gorsuch, and Alito are sitting there thinking yeah, I dunno that we need to bail this guy out right now. So I don’t know.
Thomas: Especially when all they’re doing would be stopping people from seeing his tax returns.
Thomas: How much are you willing to go to bat for this guy if just the release of his tax returns is somehow gonna be this horrible thing for him, you know?
Andrew: Yup, that is exactly right. So I have some optimism that we will see some documents and that we will get some rulings requiring some witnesses to attend. I am confident that the most evil and obstructionist co-collaborators like Mick Mulvaney are going to be able to run out the clock past any sort of meaningful deadline, and I am encouraged by the fact that the House is moving forward despite that. They are prepared to make their case with the evidence that they have and that, I think, gets us to where Republicans are going to make their stand.
We’ve seen the first part of that, which was the argument that Trump was legitimately engaged in investigating corruption, we already tackled that on last week’s episode. No he wasn’t and if he were doing so he would have complied with various legal norms that he didn’t comply with. Republicans are going to abandon that line too for that reason, but here’s where they’re going to next. This is where I think I’m gonna wrap up, but this is where I wanna bring this to a close, to tell you what to look for, because this was not present in Wednesday’s hearings but I think you’re an OA listener this is a way to be out in front of the curve. The argument that Republicans are going to shift to is a version of the too stupid to have known that this is a crime. In particular-
Thomas: So that would try to attack the corrupt intent thing.
Thomas: If you’re too dumb… [Sighs]
Andrew: And rather than saying too dumb they’re going to say, it’s going to be a grab bag of arguments about did the President have the requisite state of mind, the corrupt intent, or did he just think it was totally okay? So this was wrong, but he didn’t. I draw this, I’m gonna link this in the show notes. John Kennedy, the Republican Senator from Louisiana, very conservative, he’s appeared with Trump at Trump rallies, but at the same time, smart guy, a lawyer, and he was the guy who pushed back on the Trump judicial nominee who didn’t know what a motion in limine was.
Thomas: Oh. Huh.
Andrew: Yeah. He was interviewed on Face the Nation, it was a really good interview by Margaret Brennan, actually. If you didn’t see that, she pushed Kennedy pretty hard. I’m gonna read the relevant response. So Kennedy was explaining why he wasn’t reading the transcripts and he wants to see the witnesses testify directly and was putting up a lot of pro-Trump smokescreens, then when asked about the specifics Kennedy says “what I am telling you is that if it can be demonstrated that the President asked for and had the requisite state of mind, that the President asked for an investigation of a political rival, that’s over the line.” Then Brennan says “so over the line? Does that mean impeachable?” Kennedy, “Yeah, probably.” Now I’m not saying Kennedy won’t back away from that position. [Laughs]
Andrew: What I am saying, that if it’s demonstrated. But what I am saying is that that gives you an insight into what they’re teeing up, which is Trump didn’t have – notice, he used a very specific legal phrase, the requisite state of mind. That’s not something he came up with off the cuff, right? [Laughs] That is something he came up with to signal where the Republican defense is going. So here’s what I want you to look for and I want you to be thinking about.
In terms of finding a smocking gun, every testimony or better yet a document, we’re gonna get some documents, every piece of testimony, every document, every piece of evidence that shows that Trump knew that what he was doing was wrong is something that will defeat that argument. That could be the testimony of somebody who told him that this was wrong. There are a couple potential sources of this coming up. If Sondland breaks down, that would be great, that would certainly be a smocking gun.
On Tuesday the Committee is also going to hear from the ousted former diplomat, Marie Yovanovich and I don’t know what her testimony is going to be, but anything where a person has told Donald Trump hey this was wrong puts together that last piece.
Thomas: [Sighs] Well I don’t believe we’re gonna have that, but… Who do you think is around Donald Trump that’s telling him it’s wrong? There’s people who know it’s wrong so therefore try to put stuff on a secret server that it shouldn’t have been on, there’s that, but I don’t know. Are we gonna get anybody who is A, going to turn on Trump and B, was close enough to him to say hey this is wrong.
Andrew: So let me answer that. I’ve described this as the smoking gun. Now I’m gonna drop the joke. Lots and lots of murder convictions are secured without a literal or figurative smoking gun.
Andrew: So when I say smoking gun I mean it’s over. I mean that we are past the point of Yodel Mountain, we are past the point where Uncle Clarence can reliably go well, you know, Fox News says – at the point in which there is direct evidence that’s it, it’s over, everything changes. That does not mean that that’s the only way to get there, so if what you have instead of the smoking gun are circumstantial evidence, we’ve talked about this on the show a lot.
Circumstantial evidence doesn’t mean bad evidence, it just means not direct evidence. So we have seen and we’ll hear testimony in the coming weeks on exactly what you’ve described which is the second hand evidence of the cover up. Moving, deleting the actual recording of the call, maybe that shows up, moving the transcript over to the code word beyond top secret server. All of the things that look like covering up are pretty good evidence that you knew your behavior was wrong because you don’t cover up behavior that’s perfectly legitimate. So there are multiple avenues at this but that’s what I want you to be watching. I love the way you set it up. We know, we’ve all seen, it’s easy to get caught up in additional details that establish those first two elements, and look, that’ll be good, but look for that third element.
Look for the evidence that Democrats are bringing out that shows directly that Donald Trump and his administration acted with corrupt intent. That’s where the game’s gonna be fought.
Thomas: Alright and Andrew, we have so much to talk about, we’re already at an hour, we haven’t even gotten to do Patrons or T3BE. Here’s what we’re gonna do, we’re gonna do a bonus episode. There’s just too much to talk about with this impeachment stuff.
I have actually a couple questions I wanna ask you because I noticed something that I thought was kinda conspicuously absent from these proceedings and I’m curious why. I’m sure there’s an explanation, but something that we kind of talked about initially a few weeks ago in our breakdown so I wanna ask about that. There’s so much more stuff, there’s some Roger Stone stuff, there’s a lot, so we are going to do a bonus episode and guess what? We’re gonna release it for everybody.
But here’s the thing, if you’re a patron at patreon.com/law you’re gonna get this episode right away, we’re gonna do unedited live show, eff it we’ll do it live, essentially, so we can get it to you right away. Normies, you’re gonna have to wait until Saturday. We still wanna give our patrons the inside edge, but we will eventually release it for everybody, so that’s our plan now. There’s just too much. You had like 10 bullet points you got through, like four of them? It was a valiant effort, Andrew.
Andrew: [Laughs] I tried! I tried real hard!
Andrew: I love that, and yeah, we don’t want to deprive any of our listeners of any of the content, so yeah, we’ll do a Friday episode, a Saturday episode, then we’ll be back Tuesday on our regular schedule. So bonus for everybody!
Thomas: Alright, so that’s the plan. We’re gonna pause the impeachment coverage here, there’s so much more there really is, but it is time to thank our new patrons at patreon.com/law and those patrons are going to be enjoying that early bonus episode, so that’s cool.
[Patron Shout Outs]
Andrew: Thank you all so much for supporting the show!
T3BE – Question
Thomas: Alright now it’s time for T3BE. Ugh, I’m pretty sure I did one of the 50/50 got it wrong last time, I gotta get back on that saddle. Here we go!
Andrew: And I wanna tell you that this is a monumentous occasion of T3BE. This is the end of the hundred questions from the National Council of Bar Examiners sent to me by show listener Jason Burkhead almost two years ago! [Laughs]
Andrew: We’re through all 100 of those questions, so congratulations!
Andrew: So here you go.
Thomas: Wait how many of these things have we done?
Andrew: We’ve done 153, so the first 53-
Thomas: So I finished my second book essentially?
Andrew: Yeah! You’ve finished two full bar exam prep books.
Thomas: Wow. Most books I’ve ever read.
Andrew: Alright Thomas, totally straightforward question, here you go. Number 100.
Thomas: Yeah, let’s end this book on a high note!
Andrew: Let’s end this on a high note! Alright, a plaintiff sued her employer, alleging that poor working conditions had caused her to develop a stomach ulcer. At trial, the plaintiff’s medical expert testified to the cause of plaintiff’s ulcer and stated that his opinion was based in part on information in a letter that the plaintiff’s personal doctor had written to the plaintiff’s employer explaining why the plaintiff had missed work. When offered to prove the cause of the plaintiff’s condition, is the letter from the plaintiff’s doctor admissible?
Andrew: A) No, because it is hearsay not within any exception.
Andrew: B) No, because the plaintiff’s doctor is not shown to be unavailable, C) Yes, because it was relied upon by the plaintiff’s medical expert, or D) Yes, under the business records exception to the hearsay rule.
Thomas: [Sighs] I hate hearsay, it’s so hard. It’s so hard! I’ll just note that ulcers are caused by bacteria and are not caused by, unless there’s a lot of that bacteria around your working conditions. People used to think they were a stress thing, but they’re not.
Anyway, jeez. Well Mr. Bar Exam Book, you had to do this to me. Yeah, hearsay is just really hard. It’s so hard for me because it’s not even – oftentimes I don’t even have a good instinct on it. For many of these questions I can be like oh, here’s what I logically think should happen. So this is a letter from the Plaintiff’s doctor that the medical expert who is not the plaintiff’s doctor is using as basis for their testimony. Then it’s saying when offered to prove the cause of the plaintiff’s condition, is the letter from the plaintiff’s doctor admissible?
[Sighs] Well I would think you would want the doctor – I guess that’s one instinct, you’d want to get them as a witness, so I kind of like the answer right away jumping out to me is B, no because the plaintiff’s doctor is not shown to be unavailable. I could see that being, okay, we tried to get the doctor but they can’t do it, they’re too busy, gotta save lives or something, whatever doctors do, so here’s the letter. I could see that making sense. The problem with hearsay is there’s always the A, no because it’s hearsay not within any exception. That’s always plausible because I don’t know all the rules, so that’s always a plausible answer. So A is plausible. Just the basic no, hearsay not within any exception.
C, so let’s see. C, yes because it was relied upon by the plaintiff’s medical expert. [Sighs] That doesn’t really strike me – I dunno if this is right, but that would seem to be a good answer if the defense – yeah, the defendant was trying to get access to that letter to disprove it and it’s being relied, but to try to get it into evidence just by having an expert rely on it? I dunno, that seems, to me that seems fishy like you could get anything in based on that. Yeah, okay, maybe that’s logical I could be totally wrong! [Laughs] So I’m gonna eliminate C just because what else am I doing?
D, yes under the business records exception. Okay, that’s a real thing! I swear that we’ve talked about the fact that if you’ve got a certified, public doc – or you talked to the secretary at the office of whatever, a government thing and you could get a document or something that’s sworn to by whoever the clerical person that works there, I know that’s something you’ve said in the past. I would say that I don’t know if this is a business record? Let’s see, it’s a letter. Augh.
I’m gonna go that it’s between, I could be wrong, this doesn’t sound like the business recordsy thing, but maybe that’s terrible so I guess I’m between the two no answers? [Laughs] Um, and I guess I’m leaning toward B. I think if you show that the doctor can’t testify that then maybe you’d accept this letter but they haven’t shown that. So I’m gonna go with B, I have zero confidence in this, hearsay is impossible. It’s probably harder than real property to me. So B, final answer.
Andrew: Alright and if you’d like to play along with Thomas on what he has described as a harder than real property question, and I will say this is a very tricky question. That’s a fair assessment, that is not in any way suggesting that Thomas got it right or wrong, but just that his assessment is correct. You know how to do that, just share out the 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! Fame and fortune not guaranteed.
Thomas: Alright well we will see patrons pretty much right away for some bonus impeachment talk and we’ll see everybody else in a day or two on Saturday. So fair? Good deal everybody? Okay, meet back here, see you then.