Thomas: Hello and welcome to Opening Arguments, don’t adjust that dial! Bonus episode comin’ at you. A lot of talk, we spent probably five or six hours debating the merits of keeping the episode numbering going or naming this bonus episode, it’s just the things that podcasters go through, but I think we’re keeping the numbering going which makes this episode 333, wow! What does it all mean, Andrew?
Thomas: Numerology. 333, impeachment, there’s gotta be some tie in, someone come up with an elaborate theory.
Andrew: Three plus three plus three equals impeachment.
Andrew: That’s my numerology.
Thomas: I love the sincerity of the-
Andrew: There’s a reason I went into law and not into crazy-
Thomas: That is the best bit of acting that Andrew’s ever done, that was a great performance. 10 out of 10.
Thomas: Yeah, the three horsemen of the impeachocalpyse … I dunno, something. There’s so much to talk about still, but thanks for joining us everybody on this fine whatever day you’re listening to this, so glad to do bonus stuff. We love rewarding our listeners and patrons alike with more OA and I consider myself more of a listener than a host because I love Andrew as well so I’m excited for more Andrew talk on impeachment.
So having said that, here’s what I wanna – a couple things we didn’t get to. I have a question for you about something but first, Andrew, you know I watched this whole thing, I watched the whole eight hours. Now what I do is I wait, little insider tip.
There’s so much BS on this and oftentimes there’s a bunch of stuff that I don’t wanna waste my time with so I wait ‘til it’s over and then I hop on the old Youtube and watch it on 1.5x, or I think I may have even pushed it to 1.75x because it’s not that hard to follow ‘cuz there’s so much BS that there’s a lot of, you know, certain people who are actually smart and intelligible may be harder to follow at that speed but for the most part a bunch of bullshit excuses of Republicans at 1 speed versus 1.75 speed, they make just as much sense, so that’s fine! [Laughs]
But I want to ask you about some of those excuses we skipped over, which is this idea, they did so much work and it’s so funny to me because it’s like you’ve got a foundation of something that’s just a little twitch, just a pebble, just a twig, it’s never gonna hold a giant house, you know, but they start building anyway, these Republicans. They’re like trying to tell the story of the corruption – well there’s this guy, there’s this oligarch and he started this company and he got the access to the drilling rights or whatever it was and then he started the company and wouldn’t you know it, Biden’s son is eventually on the company, dah dah dah dah, all this stuff, real corruption, real corruption.
They go down, they just build, they start building and building and building and building and then you realize under all that building they’ve done is the fact that yeah, but Trump said Rudy Giuliani was gonna work with them to go after the Bidens, it has nothing to do in the phone call – and I think it was Schiff who did this maybe was like, hey, in the phone call was there any talk of oligarch what’s-his-face or any of the bullshit that that guy was spewing? Or was it just the Bidens and the – let’s see, I wrote it down – Chalupa Crowdstrike, a missing server, or was it all that nonsense?
Thomas: And the guy, and Taylor was like you’re right, it was just that nonsense. It wasn’t anything to do with the [Laughing] house that these Republicans tried to build on top of a small rock. It just crumbled. Schiff just kicked the rock right under the house and the whole thing just fell apart. Any reactions to that? [Laughs]
Andrew: [Laughs] A, I kinda want a Chalupa.
Thomas: Yeah, what is Chalupa? [Laughs]
Andrew: [Laughs] I will tell you this, this is 100% a true story that literally the day I touched down in the United States, that I flew back from Italy, what do you think the first thing I ate was?
Thomas: Well, since you’ve told the Chalupa story…
Andrew: A Crunchwrap!
Thomas: Yeah, awesome!
Andrew: So, yeah, no I had to have-
Thomas: I was gonna say, if you’re gonna do a secret code name for your whatever impeachable behavior, whatever this is, name it Crunchwrap.
Thomas: I mean Chalupa is, what are we, in the 90s? Come on.
Andrew: No, no no no. It was obviously Crunchwrap, it was delicious. So let me – [Laughs] leaving aside Chalupas and Crunchwraps let me respond to that. We didn’t talk about this in yesterday’s episode but I do think that part of the defense that you’re going to see from Republicans is the sort of attempt to smear everything and bring in Hunter Biden.
Andrew: And part of the reason that that’s tempting is for what you’ve described, which is there’s a complicated network of stuff and they’re things that fortunately for Democrats, Democrats seem to be pretty good at saying oh, well yeah, if there was that then that’s wrong and screw that guy. We don’t have the circle-
Andrew: Yeah, you know, let’s get together and we must defend Hunter Biden at all costs. I have said on this show and I’ll say it again, it would not – not it would not, let me say it as a matter of fact. As far as I can tell from all the available evidence it looks like Burisma, the Ukrainian company that is the heart of the conspiracy theory, paid Hunter Biden who appears to be, let’s face it, a no-talent-
Thomas: A Biden. Yeah. [Laughs]
Andrew: Yeah, but but, not Joe Biden, right?
Andrew: Not Beau Biden. He’s the Billie Carter of the Biden family.
Thomas: He’s the all the other Baldwin brothers of the [Laughs]
Andrew: Yes, exactly right! Yeah.
Thomas: There’s like five or six of them.
Andrew: [Laughs] Yeah.
Thomas: Of any of them that aren’t named Alec, basically.
Andrew: Right. So Hunter Biden has no appreciable skills other than his last name-
Andrew: And he was being paid a six-figure salary to sit on the board of this Ukrainian company, 100% is that garden-variety cronyism?
Andrew: Of course it is. If you want to bring out evidence on that, well fantastic!
Thomas: Fine, yeah!
Andrew: We wanna get civil asset forfeiture from Hunter Biden? Go for it. The problem is that the reason [Clears throat] as far as I can tell, and again we’re trying to piece together evidence that one side is actively suppressing [Laughing] the evidence that’s out there, so that’s kind of a challenge. But all the available evidence appears to indicate that Joe Biden’s direct interference and the Ukrainian government’s interference prior to being asked to smear the Bidens was in opposition to the corrupt Ukrainian prosecutors who appear to be protecting Hunter Biden.
Thomas: Well, protecting that guy, I wouldn’t-
Thomas: Right? I don’t think it’s Hunter Biden, they’re protecting the oligarch-
Andrew: Yeah, Zlochevsky.
Thomas: Yeah. So I mean even if that guy-
Andrew: So, well that’s right. That’s right-
Thomas: Hold on, hold on. But even if that guy is totally corrupt which he obviously seems to be, you know, there’s a ton of corruption in countries like this where they get ahold of the rights to use whatever and then they do the self-dealing. Him paying Hunter Biden some money to be on the board, I still don’t even know that that would make Hunter Biden guilty of a crime, would it?
Andrew: Oh I don’t think it makes – as far as we can tell that doesn’t make Hunter Biden guilty of a crim.
Thomas: Not that it’s okay.
Andrew: I agree 100%, yeah. No it’s corrupt scumbaggery and I don’t think any Democrat – I think Republicans are thinking because they closed ranks-
Andrew: They’re thinking oh well Democrats are gonna close ranks and they’re gonna protect them and we’re gonna be able to pin this on them.
Andrew: And I think most Democrats are like, yeah no. That looks like trading on the Biden name and it looks like scumbaggery and yeah, go get him. So we talked about Taylor’s testimony because it was key to the case in chief. This is an area refuting the Hunter Biden argument is where George Kent’s testimony really, really came through. So I predicted on 332 that he would not be called as a witness, I think I would amend that slightly and I would say I don’t expect that by impeachment that the Hunter Biden defense will be a viable part of the President’s defense.
Thomas: You mean – are you talking about in the Senate trial?
Andrew: Yeah, yeah. In the Senate, the actual, right in the actual trial. But if it is then Kent will be called to skewer that defense. I’m gonna link the text of his opening statement in the show notes because the questions didn’t really dig into this but his testimony, I thought, was very, very clear. As clear as you can get, and I like being clear.
Andrew: On this issue.
Thomas: I’m gonna let you be totally clear!
Andrew: Well thank you!
Thomas: I’m not gonna stop you, actually.
Andrew: So here’s what Kent says, he says “the pervasive and longstanding problem of corruption in Ukraine included exposure to a situation involving the energy company Burisma.” Sidebar on that, you had Jim Jordan railing about how Ukraine is one of the three most corrupt nations on earth. Again, these are not facts to which you need to be hostile in order to impeach the President.
Andrew: So, yeah, Ukraine was corrupt, Zelensky was elected on an anti-corruption platform and you wanted him to go back and be more corrupt again! [Laughs] That’s not a hard story to tell. Kent continues, “The primary concern of the U.S. government since 2014 was Burisma’s owner, Mykola Zlochevsky.” And I know that I’m doing my worst Yakov Smirnoff impression there. So Zlochevsky is the oligarch you’re talking about, he owns Burisma. The U.S. froze his assets in order to try and recover them on behalf of Ukraine. So he’d embezzled money from Ukraine, Ukraine was asking us to recover his assets.
Now back to Kent, “In early 2015 I raised questions with the Deputy Prosecutor General in Ukraine about why the investigation of Zlochevsky had been terminated based on our belief that prosecutors had accepted bribes to close the case.” So that’s the background facts, 2015 prosecutors look like they’re corrupt. “Later, I became aware that Hunter Biden was on the board of Burisma. Soon after that in a briefing call with the National Security staff of the Office of the Vice President, in February 2015, I raised my concern that Hunter Bident’s status as a board member could create the perception of a conflict of interest.”
Again, let’s be totally clear on that, that’s 100% why he’s there. This is 2014, 2015, an oligarch pays the talentless son of the Vice President to sit on their board and do nothing, absolutely 100% of the reason you do that is to try and insulate yourself from investigations. “I raised my concern that it could create a conflict of interest,” [Laughing]
Then George Kent, again, we said there are reasons to think that Bill Taylor listens to the show, I’m gonna read you his words. (Quote) “Let me be clear, however, I did not witness any efforts by any U.S. official to shield Burisma from scrutiny.” So I like that George Kent likes being clear, too. “In fact, I and other U.S. official consistently advocated reinstituting a scuttled investigation of Zlochevsky, Burisma’s founder, as well as holding the corrupt prosecutors who closed the case to account.” So that’s the underlying background conditions involving the Obama administration and Biden, and Hunter Biden being on the board of Burisma. Was Hunter Biden on the board? Yup. Was the investigation closed? Yes it was. Did the United States desire to open or reopen that investigation? Yes they did, which is kind of the opposite of what Republicans are saying now.
Then Kent says “Over the course of 2018 to 2019,” that is once Obama’s no longer in office and Trump is in office, “I became increasingly aware of an effort by Rudy Giuliani and others, including his associates Lev Parnas and Igor Fruman,” by the way both of whom have been indicted, “who run a campaign to smear ambassador Yovanovich and other officials at the U.S. embassy.” (End quote). “The chief agitators on the Ukrainian side of this effort were some of those same corrupt former prosecutors I had encountered” brackets here, by me, back in 2015, “particularly Viktor Shokin and Yuriy Lutsenko. They were now peddling false information in order to extract revenge against those who had exposed their misconduct, including U.S. diplomats, Ukrainian anti-corruption officials, and reform-minded civil society groups in Ukraine.
During the late spring and summer of 2019 I became alarmed as those efforts bore fruit, they led to the ouster of ambassador Yovanovich and hampered U.S. efforts to establish a report with the new Zelensky administration in Ukraine. In mid-august” (putting it all together) “it became clear to me that Giuliani’s efforts to gin up politically motivated investigations were now infecting the U.S. engagement of Ukraine, leveraging Zelensky’s desire for a White House meeting.”
Now, I could go on, but I think that clearly speaks to the Biden-Burisma part of it, and what it means is – and this sort of goes back to your initial comment on, you know, in minute one we got from Bill Taylor the topline evidence, but this is why you continue to dig through because in order to refute the Hunter Biden argument you have to establish, again, what appears to be the fact which is that Giuliani, though two individuals who have been indicted, whom a grand jury believes there’s probable cause to believe committed crimes, hooked up with corrupt former prosecutors to try and smear the U.S. ambassador to Ukraine. That’s really bad.
Thomas: Yeah, again, it’s so funny because they go to all this work and then it’s just a house of cards. Mix every metaphor, you take out one little Jenga piece and the whole thing comes down. If this were any sort of attempt to root out real corruption, which is what Jim Jordan and all these idiots are going off, oh look at the corruption, it was just an attempt to duh duh it was real corruption. Okay, why are you using your personal attorney, he doesn’t work for the government! He’s not in any position to try to do that. Furthermore, we look at the facts! [Laughs] He demanded that they do a CNN announcement of an investigation into the Bidens.
Thomas: If you were any interest in justice, you’re not going for a TV announcement, which by the way you’re not even supposed to do! We’ve covered this with the Hillary server stuff. If you’re investigating someone you investigate them, and then if you don’t find anything by the way, contrary to what Comey did, you’re supposed to just “okay, we didn’t find anything, we’re not gonna publicly smear the person that we’re not gonna charge.” So no level of this makes any sense and it drives me insane that we all, I guess, have to sift through this “oh let’s look at the facts here.” No! This is all lies! It’s all bad faith.
Andrew: Yup, that is 100% correct and you seized on, in my view, the punchline of why I do not think the Hunter Biden defense is going to be a live or viable defense by the time that we have a trial in the Senate. It’s instantly skewerable with the, you don’t ask. As part of a legitimate investigation you don’t ask for a press, for a PR stunt. That’s something I think even Uncle Clarence can get on board with. So I agree with you on that, I think that the more you uncover facts the worse it makes Trump look. [Laughs] At some point-
Thomas: I love, there was a good – and again I think it was probably Schiff or somebody was like, oh, so Trump’s interested just in corruption? Okay, hey, witnesses, has he ever done this with any other country that has any history of corruption? Nope!
Thomas: What do you know?
Andrew: Look, let’s take a step back from that. I want to advance – and I’m not gonna call it the Republican argument, it is the Henry Kissinger political realism argument, to which a great many Democrats also subscribe, but virtually all Republicans subscribe. It goes something like this: In order to have geostrategic bulwarks against our enemies abroad it is necessary to form partnerships with countries that we don’t really like, with countries that are-
Thomas: Well, yeah.
Andrew: -oppressive, with countries that have terrible governments. Look, this was the fundamental argument that we fought in the 1980s with Reagan’s foreign policy, as the United States propped up these horrible regimes in South America as a bulwark against communism. So if the idea is it’s perfectly okay for us to tolerate and even send military aid to dictatorships that use portions of that aid to murder their own people in order to further U.S. interests abroad, the idea that we would condition military aid to a government because they’re internally corrupt is just – it’s laughable! It is not consistent with how the United States carries out its foreign policy.
Because seriously, when you put all that together it’s not just well I’m asking you to investigate corruption, it is I am saying the United States is going to withhold military aid, thereby weakening our position visa vie Russia, a hostile foreign power, because we really think you should have more serious prosecutors investigating crime inside your country. That does not pass the straight face test. It would not be, we would not condition aid if Ukraine were, you know, murdering dissidents, so the idea that they didn’t prosecute an oligarch and we were just like, oh, well that’s a bridge too far! That does not pass the straight face test.
Thomas: [Sighs] That drives me nuts. Here’s what I was curious, though, this was the thing that I thought, as a nonlawyer, I guess, two weeks ago (whatever it was) this stuck out to me and was like I can’t believe that this is so outrageous and then it’s nowhere in these impeachment hearings that I saw, and that is this, I’m curious why – and I’m sure there’s an explanation – why wasn’t more made of the fact that as you described it in previous episodes this wasn’t even Trump’s money to withhold? Never anywhere did I hear any mention of the fact that nevertheless, forgetting all of this, even if you think that Trump had some legitimate reason or whatever, he can’t withhold this.
This isn’t even something he’s allowed to do! Why wasn’t anything made of that?
Andrew: I think because these witnesses are not good on that particular fact.
Thomas: Oh, okay.
Andrew: I’m really, really glad you brought that up because it’s something that you have identified and emphasized and even I have, it’s easy to sort of alight over it-
Andrew: -and fall into the Michael Flynn defense, ‘cuz we’re so – I should, you’re not, you’ve been good on this.
Thomas: I’m sorry, what’s the Michael Flynn defense?
Andrew: The Michael Flynn defense was well, look, he can fire Michael Flynn. The President has the power to do X-
Thomas: Oh, right.
Andrew: So we responded to the Michael-
Thomas: What? Do you mean Comey?
Andrew: [Sighs] Yeah. God, can we? Yeah, sorry.
Thomas: Yeah, I was like trying to figure – no, there’s no editing, it’s live! Sorry everybody.
Andrew: That’s right, that’s right.
Thomas: We wanted to be able to get this out so you can hear just how many times Andrew messes up!
Andrew: [Laughs] Alright, well…
Thomas: That’s okay, you said the wrong name. I’m the worst at names but somehow that one I…
Andrew: We’re off script, obviously, and I was conflating Flynn and Comey, yeah.
Thomas: No problem.
Andrew: Firing Comey over Flynn-
Andrew: Remember the first line Republican defense was well the President has the right to fire the FBI director.
Thomas: Yeah, they brought that up here, too.
Andrew: Yup. To which we said, yeah, that’s the Blagojevich defense. The governor has the right to appoint a Senator. [Laughing] He doesn’t have the right to go, you know, behind everyone’s back-
Thomas: Even more, Trump has the theoretical power to just nuke every country in the world right now, doesn’t he? I mean, that wouldn’t be against his power, but you look into the reasons of why he did it and say okay, that wasn’t a good use of that power.
Andrew: So in putting it all together I think because I’m so used to litigating the Comey defense because it won’t go away, Bill Barr seems to believe if the President does a thing that’s within his power it doesn’t matter why he does it. That’s a nonsense position but Republicans, again, smart but evil Republicans and lots of people who are listening to smart but evil Republicans, keep repeating the Comey defense so I am sort of going there as part of the argument, but all of this is to say you are 100% correct that this is not even the Comey defense.
Andrew: This is beyond the powers of the President, this is obstructive of the legitimate conduct of business and will, I think, very likely form an additional article of impeachment on obstruction of justice because all of those things that illustrate the corrupt intent I think also – the reason they illustrate corrupt intent is because they’re evidence by the President to hide evidence of his wrongdoing. So I agree.
Thomas: And it makes it even more interesting, the mechanics of how this went, because this – wait do you have a mute button? We’re unedited so that cough’s in there but celebrities are just like us, everybody! Andrew coughs too! No, what was I saying before I was rudely cough-interrupted? [Laughs] Andrew, you still there? Did I lose you?
Andrew: Yeah, no I’m still here.
Thomas: Coughing fit?
Andrew: Sorry, I was muting so I could cough again.
Thomas: Sorry, live show! It makes it all the more weird and corrupt to look at how this happened, because they described the fact that someone – now I’m blanking on the name of the office, but whatever it is that would disperse these funds was like yeah, we’re not doing it because the President told us not to.
Andrew: Yeah, that was the Office of Management and Budget.
Thomas: Yeah, yeah, and they’re like – so that seems to make it even worse. I feel like more could be made of the fact that he does not have any right to do that at all! It’s not even a “oh, well the President has this power,” he doesn’t. Unless I’m mistaken, this is not a thing he can do regardless.
Andrew: No, you are 100% correct and we’ve actually talked about that. It is 2 U.S.C. § 683 that allows the President to request suspension of funds that have been allocated by Congress, but he’s gotta prepare a report to Congress. He’s got to undertake certain affirmative steps to comply with the law that are procedural requirements and he didn’t do any of that, so I think that’s really, really perceptive, it’s an important thing that our listeners should be out there looking for, which is as you’re looking at the roster of potential witnesses does the Intelligence Committee, do they hear from somebody from OMB? Do they subpoena witnesses from OMB? I agree with you.
Thomas: Okay, good, I’m glad I’m not crazy.
Thomas: I was worried that it was gonna be like either an Andrew was wrong, oh no he actually did have discretion over this, ‘cuz it does seem weird but when you say it, when you said that these witnesses aren’t good for that it reminded me, that’s a great point, and it reminded me of the fact that I have to say that I thought Castro’s questions were [Laughing] particularly bad. I dunno if you caught those, this is Joaquin Castro, right?
Thomas: Twin brother to Julian Castro. I like both of them but his questions seem quite bad to me, he was like “hey is it a crime to do this?” Is attempted chemistry or whatever, those questions, and both the witnesses were like we’re not lawyers, why are you asking us this? To be fair, I think they’re right. If you wanna make the statement, do a little [Laughs] podium pounding, just take the opportunity which some people do in the Senate – sorry, in the House – to just make a speech instead of ask a question, fine, and say hey, attempted robbery, attempted murder, these are crimes. Attempted bribery is a crime. Trying to get the witness to answer that who’s not a lawyer was a bad move in my opinion.
Andrew: I agree with that. Again, I wanna focus on the positive aspect which is, you know, I think we see what a difference it makes having competent lawyers on both sides-
Andrew: Asking the questions who have zero interest in grandstanding. I think that’s true, I mean we talked about Castor, for everything you would say about Castor being willing to employ some dirty tricks, he’s not interested in grandstanding.
Thomas: Well, I will say this though, [Laughs] he certainly did a lot of asking questions that the witnesses were like, “look buddy, I have no idea what the clownhorn you’re talking about.” [Laughs]
Andrew: No, that’s true!
Thomas: “Oh, would you agree that Ukraine would be upset by the hot mic comment in 2012?” That might’ve been somebody else but it was something like that, where they tried to ask a question and the witnesses were like “what? I don’t know, why are you asking me this?”
Andrew: Yes. And that is, I’m glad you brought that up because that is the, in my view, the distinction between – because folks on Twitter, social media, have asked us, “boy, didn’t seem like Castor’s questions were very good, he violated the first rule of lawyering which is never ask a question you don’t know the answer to.” I think it’s where I would sort of parse that line very carefully. I think what Castor did was where there were moments that you might call grandstanding it was grandstanding on behalf of the client because the case is so bad as opposed to self-aggrandizing grandstanding.
Thomas: Right, yeah.
Andrew: Which is, you know – look, again, we’ve been super clear about this, both Democrats and Republicans do that. I had a friend who was a member of the House of Representatives and he told me, he said look, every single member of the House of Representatives wakes up and looks in the mirror in the morning and thinks, “I could be President some day!”
Thomas: Yeah, all of Congress.
Andrew: Yeah, exactly, that’s what he was saying. He was like, look, so-
Thomas: But also to put a yeah, there’s that angle which is certainly true, bit of vanity going on, but also I think there’s a very legitimate concern. We talked about this in the last show a little bit, that somehow we’ve gotta, again to use this quote that I hate, “move the needle” on this. Maybe in this stupid viral day and age you have to make a thundery speech because I guess that’s what everyone’s expecting in order to emotionally feel like, oh, someone did something wrong here. If you calmly discuss the facts about how the President completely violated the law and should be impeached it’s like well that doesn’t sound very impeachy? Or something. So I don’t really blame someone, especially there were some really good questioners, like I referenced the one who talked about Taylor’s military history, I thought that was really good. Stuff like that, maybe that’s what you have to do.
Andrew: Yeah, yeah. I don’t think I can add anything to that, I agree.
Thomas: Here’s a question I have, and let me know if there was something else you wanted to get to, but one more question I had was how much do you think the firing of – now I’m gonna blank on her name and, was she the previous ambassador to-
Andrew: Yeah, Yanukovsky.
Thomas: Oh that’s her name?
Andrew: It’s Marie – sorry, let me make sure I’ve got her name right. The former ambassador which is Maria – Yanukovitch?
Thomas: That sounds like something but it could be a different-
Andrew: You ask the question, I’ll make sure I’ve got the name.
Thomas: So whoever that ambassador was, how much do you think that’s going to factor into this equation? Because there was talk about it but I got the impression just overall from watching it and not having the legal expertise to know is this going to be part of the criminal pattern or anything. I got the impression this was something Democrats wanted to bring up but I wasn’t entirely sure it would be part of an impeachment package, because in the end Trump does have the right to fire ambassadors whenever he wants so where does that fall? Does this fall into the sure he has the Blagojevich pattern of sure he has the right to do this but not for totally BS corrupt reason? Or is this gonna be something that’s part of why Trump’s bad but not impeachable bad? I’m just not sure where this sits. What do you think?
Andrew: So it’s Yovanovitch.
Andrew: I apologize. Yeah, so it’s Marie Yovanovitch.
Thomas: No apologies necessary, this is live show, off the cuff-
Thomas: This is a lot of names to digest.
Andrew: Yeah, so here’s – so I think it’s too early to tell whether her smearing is going to play a major role in the impeachment. So let me give you kind of both cases for it. The argument that she plays a big role – and by the way she’s scheduled to testify on Tuesday, so we’ll know more a week from now.
Thomas: I wanna – sorry, just to amend it – I think she may play a role in that I think she’ll be a good witness but I don’t know that her firing and subsequent smearing, that’s my question. Is that part of the case against Trump? Just to clarify.
Andrew: Right, right right. No, good clarification. Let me walk you through both of those possibilities here. The argument that her firing is going to play a major role in impeachment builds upon the Kent testimony that I just gave to you, and it’s part of this narrative that says look, Donald Trump in order to fulfill an insane conspiracy theory that he apparently believes, dating back to 2016, that Ukraine interfered with the 2016 election in favor of Hillary Clinton and funded the basement of Comet Ping Pong and all of the other nonsense 4Chan stuff, but again, sidebar on that. We read the TELCON, I’m trying not to call it a transcript because we know that there are areas that it’s inaccurate.
Thomas: Psh, right. Yeah.
Andrew: We read the TELCON of the July 25th call with Zelensky. Donald Trump said “I need you to look at crowdstrike” and you can only imagine poor President Zelensky. It’s the equivalent of having the leader of the most important country on earth to you call up and be like “I’m gonna need you to check out this Joe Rogan podcast about whether we went to the moon or not” and you’re like “what?!”
But anyway, Trump very clearly believes in this conspiracy theory, so the narrative is in furtherance of the conspiracy theory and seeking an opportunity to gain dirt on the person that he believed would be his presidential opponent in 2020, engaged in a campaign to drive out a career diplomat from the office of Ambassador to Ukraine and then replaced that person with a hack and turnover all over U.S. foreign policy with respect to Ukraine to a private cabal led by Rudy Giuliani and Rick Perry to further this corrupt agenda.
So you see the role that smearing Yovanovitch has in connection with that. In my view – and then the argument that she won’t play any role is again, despite the fact that Yovanovitch is a career civil servant and probably a registered Republican? It’s hard to know. Again, has served in multiple administrations, but people who tend – I mean this is way too broad a brush, but people who tend to get involved in Eastern Europe tend to have that more conservative mindset because you focus on that area of the world when you’re formative political beliefs were anti-communist. So, you know, in any event all that is a long-winded way of saying she will be smeared as a Democrat.
Andrew: She will be smeared as a-
Thomas: Yeah, anybody who goes against Trump is smeared as a Democrat, doesn’t matter if it’s Abe Lincoln himself. [Laughs] Doesn’t matter.
Andrew: Yeah, that’s exactly right. So we will know more in one week what, because she is gonna testify publicly just like Kent, just like Taylor, and we will know more if the hitjob on her is going to be a part of the Democrat story or whether they’re just going to – ‘cuz I could also see – the argument for leaving it out there is you have to put together another conspiracy theory.
Thomas: Yeah. Like a harder case to make.
Andrew: Yeah, and it just sort of comes out in the well, you gotta believe that there was this conspiracy to do this, and then there was this conspiracy to do that. Now it seems like there was. [Laughs]
Thomas: Yeah! [Laughs]
Andrew: So maybe there is kind of an unstated hey, we’re going to use this bit of evidence if you try and – if you put forth Giuliani as a pawn or something like that, then we’re gonna have to tell the whole story but so long as Republicans don’t go there we won’t go there. I could see that. That would be an unstated negotiation.
Thomas: Well forgive me if I’m not understanding something, but I do kinda want to get your opinion as to let’s say, you know, Senator Torrez, you’re in the impeachment trial in the Senate, I guess I don’t even know if this is an impeachable thing, if it’s criminal or if it’s just so unethical that it would be a high crime and misdemeanor type thing, to – even if the idea is hey, I just wanna fire this ambassador and put somebody else in just for fun. I like the person, or whatever it is. Is there any level of that that reaches an impeachable thing? Or is it just one of those things where, you know, the President actually does have the right to put in or take out whoever he wants and furthermore he apparently has the right, the 1st Amendment right to smear them if he wants and there’s not really anything that you can impeach over that? I guess in a vacuum, I’m not talking crazy-town Republican or Democrat strategy, just whatever you would think in a vacuum.
Andrew: So standing alone I don’t think you would impeach over what Trump did to smear Yovanovitch. But as part of the larger pattern of evidence that demonstrates his corrupt intent – I went back and pulled up the TELCON of the July 25th call because remember, this is the conversation, the congratulatory call between the President of the United States and the President of Ukraine. After shaking down the President of Ukraine, saying [Impersonation] “well we need you to do us a favor first,” this is what President Trump says about Yovanovitch. He says, “Good, because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that.” By the way, that is the corrupt prosecutor that Kent [Laughing] talked about in his opening remarks.
So Trump first says, hey, you know, this corrupt prosecutor, “a lot of people said he’s very good, that’s unfair, people were talking about that, and you had some very bad people involved. Mr. Giuliani is a highly respected man. Hew as the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he’s a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad! Bad news! And the people she was dealing with in Ukraine were bad news and I just wanna let you know that.” So, you know.
Andrew: [Laughs] Right. That is on record what the President said about Yovanovitch to President Zelensky. Again, if that’s all it is would you impeach? You wouldn’t impeach over it, but does that begin to show corrupt intent of, you know, literally on the level of “yeah, she’s just bad! She’s a bad person involved with bad guys!” I dunno.
I also wanna add as a side note that on the White House, the headline for the link to the July 25th TELCON is – I literally, I cannot believe this, I encourage you to look it up yourself. If you google “July 25th phone call transcript” the first link you are likely to get, it’s the first link I got, is “TRANSCRIPT!!!” with three exclamation points “- the White House” and that’s how the White House uploaded this. It’s literally – we have an eleven-year-old boy running the White House. I looked and it and I was like, okay, clearly that’s a joke site. Oh, no, that’s the President of the United States.
Thomas: I did an entire spiel on this on Cognitive Dissonance recently, but I recorded it – I guess Tom’s like on vacation so it’s some sort of future episode, I don’t know when it’ll be, the point is I don’t know when it’ll be out but it was a lot of fun, we did an episode about Trump’s record and accomplishments and part of it was there’s an official White House page of his accomplishments and it’s – if you wanna be truly depressed at the idiot nine-year-olds who are running our country go to whitehouse.org/trump – whatever accomplishments.
Just google it, it’s depressing, and stay tuned for that Cognitive Dissonance episode out whenever, I don’t know. [Laughs] Yeah, but it’s the worst. So that’s kinda my questions, I think it covered everything. I mean there was the timing of the releasing the money, again it wasn’t his to release anyway, but they still released it coincidentally right when the whistleblower was kinda going on, so that defense made no sense but I think that covered my defenses that I noticed and saw were stupid. Was there anything – so what did you wanna get to next on the list?
Andrew: Let’s – we’ll wrap this up, put a little bow on it. The positive thing that I would take away from this is, we’ve asked will the senate just – the House refers out articles of impeachment, it is 100% possible for the Senate to just be like okay, we got the articles of impeachment, we’re gonna have an up or down vote on a Motion to Dismiss. Mitch McConnell raises Motion to Dismiss and 51 Republicans stand up and go okay, dismissed. So that is possible.
But I feel like the reaction to the way in which the impeachment inquiry is shaping up makes that less likely. Remember in the last episode, 332, going back to Senator Kennedy’s testimony, his argument was I’m not gonna read these transcripts, I’ve gotta wait and see what the testimony is from witnesses, we want the opportunity to cross-examine, we wanna do this like the way lawyers do. Again, this point isn’t wrong in the abstract.
Part of the reason that we have a trial by jury system is the idea that your jurors sit down, they listen to conflicting testimony and they adjudicate which witnesses they believe and which witnesses they don’t. But you can’t do that, you can’t simultaneously advance that proposition and then also say oh we got enough, we’re just gonna move to dismiss right at the outset. You can’t yammer about due process and say well, of course, we don’t actually need to have any witnesses come up.
So I feel like you can never tell when Mitch McConnell is gonna Mitch McConnell things, but I feel like the likelihood that there is no process in the Senate, I feel like that went down this week. So that’s a bit of optimism.
Thomas: Yeah. [Sighs] I dunno. I think that, sort of what I was talking about earlier with the moving the needle, moving the needle, did they [Mumbling] move the needle. I’m just … [Sighs]. I think what we’ve realized in the Trump era is that part, I think the public was relying on not just facts and not really facts but any sort of consensus on certain facts for a long time and when Watergate happened there was a, you know, there was a consensus among both the left but enough of the right to where it was kind of accepted that okay, yeah, he really did do something wrong. But I guess I didn’t realize and nobody realized maybe how much that mattered. Like if you get one side, if you get Republicans, all of Congress, these people who seem important.
We all think if you’re a Congressperson you aren’t full of crap. You’re an important person. If you get all of those people on one side to just decide to not act as though anything he did was wrong then that seems to work. Enough people, and Fox News is a part of that equation, but enough people, they just kind of look at what’s happening and feel like, okay, well they don’t really agree so it must just be a partisan thing. There’s no consensus here so it must just be a partisan thing and eh I lean a little right so whatever, must be nothing there.
It’s incredibly frustrating, and another reason that I’m so mad about the Democrats moving the needle thing is, once again, and I kinda wanna get your thoughts on this, it’s not about swaying the public. I mean, I guess you can say that yes, if you get enough of the public on board then, you know, people will think that they will not be reelected if they don’t vote the right way. Okay, maybe, but I don’t understand why the media is treating this like if Democrats get 55% of the Country in support of impeachment that that’ll matter. It’s not gonna matter. What matters is Republican Senators, that’s all that matters. We know he should be impeached. We know the facts, we know what he did was bad.
So what’s gonna move the needle in terms of however many Republican Senators you need, and that might just be nothing, and so even talking about it like “oh Democrats didn’t move the needle” it’s irrelevant! So what do you think? [Laughs] Am I too Negatron on this?
Andrew: So… let me Optimist Prime it. At the point – we have differentiated different classes of Republicans. [Laughs] We have true believers and sycophants, there is nothing that is gonna get Lindsey Graham to move between now and 2020.
I strongly believe that that’s because he made an affirmative choice in 2016 and said, “oh man, I’m going to come up for reelection when Trump comes up for reelection and if I continue to Lindsey-Graham it the way I have been I’m gonna get primaried and I’m gonna lose the only job for which somebody thinks I’m qualified to do and I’m not ready to do that yet.” So he made a deal with the devil with himself and became Trump’s biggest sycophant. He can’t be moved, he’s all in. But not every Republican Senator is in that position and Republican Senators who have a longer time frame, who come up for reelection in 2022 or 2024 are gonna be in a very different spot, so there’s kind of number one, is there political pressure?
Number two, are there any genuine patriots out there? [Laughs] We saw the one! We saw Justin Amash! Justin Amash, apparently the only Republican who read the Mueller report and was like, well that seems real bad.
Thomas: And he was thrown out into outer space, is what happened!
Andrew: [Laughs] He was pushed out the airlock, that’s true.
Andrew: Look, you see part of that coming, right? I talked a little bit about the Kennedy interview, you’ve seen a bunch of Republicans who have basically said like, well, I’m trying not to read these transcripts.
Thomas: [Laughs] Yeah.
Andrew: There’s only one reason not to read the transcripts! Because you’d go home every night and you’re like “oh, god, what have I climbed into bed with?”
Andrew: So, you know, I think – it’s actually a really, really good segue since we’ve now managed to go 50 minutes. I was worried this episode would be short, so you were right, I was wrong!
Thomas: I’m never worried an episode’s gonna be short. When was the last time? [Laughs]
Andrew: Yeah, that’s true. We’ve been asked a bunch of times, there’s a Politico story that is, it’s entitled “There’s a Surprisingly Plausible Path to Removing Trump from Office.” It’s terrible. The story is terrible and wrong and god help me-
Thomas: I don’t even think I’ve looked at this, what is it?
Andrew: Oh my gosh, you should.
Thomas: Is it one weird trick? Well I probably just ignore one weird tricks ‘cuz they’re stupid.
Andrew: Well it’s not even – but look, it’s in Politico and the reason it’s being taken seriously is that it’s written by Juliana Glover, and Juliana Glover is a Republican political operative. She was an advisor to George W. Bush, Dick Cheney, John Ashcroft, Rudy Giuliani, and advised the presidential campaigns of John McCain and Jeb Bush. So, you know, a Republican insider. Her thesis is that because the Senate can set their own rules the Senate could make the vote in impeachment a secret ballot. Then Jeff Flake has said-
Thomas: Under the theory that, yeah.
Andrew: Right, yeah, that Republicans will now be freed up if there’s a secret ballot to all vote against the President but then they’ll maintain plausible deniability. First, factually speaking, she’s wrong on the clear – she’s wrong on the factual predicate. So she says it would take just three Republican Senators to turn the impeachment vote into a secret ballot. That’s not true.
Andrew: Now, the reason that she says that is she’s like look, in impeachment matters the Vice President doesn’t get to cast the tiebreaking vote, and she’s wrong on that because what she means to say is during the actual impeachment trial itself John Roberts presides over the trial, so rulings on evidentiary matters-
Andrew: -and stuff like that, you appeal to John Roberts. Setting the rules is ordinary Senate business that occurs a week before the trial happens.
Andrew: We know, because we saw this happen before. By the way, it’s not even setting the rules, it is, as we’ve discussed, it’s a variant of the nuclear option. It is appealing to the decision of the Chair who at that time will be Mitch McConnell and not John Roberts for interpretation of existing Senate rules because somebody will make a point of order and say that they’re ambiguous. Passing new Senate rules requires 2/3 vote, 67, you’re not gonna get that. All of which is to say that you can block – that if it were 50/50, if you had three Republican defectors and you didn’t lose Joe Manchin and Kyrsten Sinema who, by the way, you would lose, that-
Andrew: That it was 50/50 that Mike Pence could still caste the tiebreaking vote the other way. So you need four Republican Senators, and the reason to go from three to four is a pretty significant reason, it’s not hard to say Mitt Romney, Susan Collins, Lisa Merkowski. Finding a fourth and holding onto Manchin and Sinema all of a sudden takes you out of-
Thomas: Yeah but, okay. Let’s assume we could do that, does the rest of it work? Or…
Andrew: You could. You get a fourth, you get a – so now then factually speaking-
Thomas: You could do a secret ballot?
Andrew: There is nothing, in terms of there is nothing in the Constitution-
Thomas: That’s weird.
Andrew: -that requires the vote to be made public.
Andrew: And you wouldn’t do a secret ballot, what you would do is you would just not call for – the term in Roberts’ rules of order that she doesn’t mention here is “division,” so you call for a division and a division is where – and don’t ask me why it’s called that – you go on the record. But the chair could very easily call for a voice vote. You’ve seen that on-
Andrew: -Mr. Smith goes to Washington. The ayes, the nays, alright in the opinion of the Chair the ayes have it.
Thomas: Yeah, but like isn’t that gonna be on C-Span?
Andrew: You could. So, you know, you could then have some kind of moat. You could have a procedure that says, that basically turns that voice vote into a secret voice vote.
Andrew: It would be weird and unprecedented and-
Thomas: It does seem kinda anti-democratic though, to not know…
Andrew: And that goes to my real objection which is, I’m gonna link, that’s why the second half of this was god help me I agree with the National Review. I do agree with the National Review. This is one of those things that I think is very one weird tricky. I’m gonna get to what the National Review said in a minute. I think it is one weird tricky, it’s sort of superficially appealing to say “oh man, yeah, Republicans secretly hate Trump and if you let them do that where they can’t get caught,” but here’s the thing.
If Trump is impeached it will be super duper bad for Republicans. [Laughs] It will be super bad for any Republican who’s ever supported Trump, and to deprive them of the opportunity to make a decision to their constituents is-
Andrew: On a strictly political calculus, you’re gonna look at it and be like yeah, yeah yeah but I’m still gonna secretly – it would give you the opportunity secretly to vote for Trump as much as the opportunity to vote against it, and to do so for purely craven political reasons. So I am not convinced that it would work, and while I am definitely not convinced that Jim Garrity of the National Review argues in good faith, I think he’s right when he says, “it is hard to describe just how terrible an idea this is. It would represent Senators trying to avoid accountability for their votes during an exercise that is supposed to be a legislative effort to hold the President accountable for his actions. This country has never forcibly removed a President for office.
For such a consequential and historically important vote the idea of Senators being able to not tell the public how they voted or to publicly claim they voted one way when they secretly voted the other is unthinkable.
Thomas: Yeah, I mean I agree.
Andrew: I agree. So-
Thomas: If that… [Sighs] At some point someone has to grow a spine here.
Thomas: You know? And if – I guess to make the counterargument if you’re so worried about this vote that you would only do it in secret then, well, there’s a reason for that. Then that means – like if you had the full will of the people behind you you wouldn’t be worried about doing it in secret, you’re probably only worried about it because you’re constituents like Trump and they won’t vote for you if you do this, so this is like a one weird trick to do something that your constituents don’t want you to but then not take the fall for it. It is anti-democratic. I think the solution is grow a spine.
Andrew: Yup, I agree. So that’s, I wanted to cover that and I think – I get why folks have latched onto it, you kind of looked at it initially and were like, oh yeah yeah, look, because we’re sort of focused procedurally, like with Republicans who are playing in bad faith. Let’s not forget, this is the party that stole a Supreme Court seat. I agree, they’re playing in bad faith so it’s easy to kind of look at it and be like how do we play hardball back and what do we do that will increase our chances of getting Trump out of office? But I think the more you look at it the more it’s not – I don’t know that it would help us and it’s not how I would wanna go about doing it anyway.
Thomas: Alright, well any final words?
Andrew: Yeah. That’s my final word on the surprisingly plausible path. Can I do 30 seconds on the Roger Stone trial?
Thomas: Who am I to say no?
Andrew: So I wanted to do this on Friday’s show because Roger Stone, I think, will be convicted by the time that this goes out.
So the trial closed Wednesday, we’re recording this on Thursday, and the jury is getting their instructions and I think this will not take long for the jury to deliberate and come back with a guilty verdict. I got a couple of different questions of folks including Ashley who asked us, the fact that Roger Stone just rested without calling any witnesses in his defense, should we read that as angling for a pardon? Fair question, but no. Lots and lots of criminal defendants will make their case solely on trying to cross-examine and impeach the government’s witnesses rather than calling witnesses of their own.
Look, it’s Roger Stone. It’s gonna be real hard to find [Laughs] to find good witnesses affirmatively on behalf of Stone, so no. There’s no behind the lines there. That’s not to say that the President won’t pardon Roger Stone, he very well may, but I don’t think you can read into that from his conduct at trial, lots of defense attorneys do that. No the real problem is there wasn’t – we talked about this in our Serial episode, part of what you need to do as a criminal defense attorney is tell a consistent story, and Stone’s lawyers just sort of did the spaghetti trick.
They were like, well there was nothing wrong with what he did because the Trump administration was gonna get oppo research, but then they also had this line – and I pulled this [Laughing] from their closing arguments because it was kind of amazing, where Stone’s lawyers said that his House testimony, where he lied, that’s what he’s gonna be convicted of, was irrelevant because he didn’t know anything that he (quote) “played the campaign by pretending that he had access to Wikileaks founder Julian Assange when he didn’t really have access to him.” A, that’s a strange argument, but B, it underscores something that has kind of gone beneath the radar, which is in the Roger Stone trial Steve-Clownhorning-Bannon testified on behalf of the government.
Andrew: That’s pretty significant. Bannon told the jury that Stone was considered the campaign’s conduit to Wikileaks. I’m reading from the transcript, here-
Thomas: Oh, we can’t cut the silence, so [Singing Entrance of the Gladiators] I’ll fill the time.
Andrew: I muted, not to pull up the transcript but because I was having another coughing fit and I didn’t want you to make fun of me again.
Thomas: Oh. Somehow I spread this cold to you through the magic of the internet.
Andrew: Oh man, it sucks. So Bannon says, (quote) “the campaign had no official access to Wikileaks or to Julian Assange and Roger would be considered if we needed an access point because he had implied or told me that he had relationships with Wikileaks and Julian Assange.” That’s Steve Bannon’s testimony, and again we’ve talked about witness credibility. Bannon is a very, very credible witness against Roger Stone because here is somebody with zero motivation to lie. So I think – oh, and by the way, the prosecutor’s closing argument was essentially my closing argument from every time we’ve ever talked about Roger Stone, which is you get up and you go-
Thomas: He has a Nixon tattoo on his back?
Andrew: Yeah! No, he said-
Thomas: Literally throw him in jail.
Andrew: The guy’s got a Nixon tattoo on his back and he called up Randy Credico and said [Mob Boss Impersonation] “Hey, Randy, do a Frankie Pentangeli.”
That was in the closing statement, because for your average jury when the bad guy calls up and is like hey, I want you to do, remember the key villain in the key moment in one of the most celebrated movies in American history? Yeah, do that thing. That’s what we consider a gift to a prosecutor. So the significance of all of this, in addition to the fact that I can’t wait for Roger Stone to go to prison is this, and I love being able to end the episode on this point. There is now, and we need to keep the pressure up, once Roger Stone has been convicted there will be no reason to have a redacted version of the Mueller report with the exception of a couple of bits of grand jury testimony.
Andrew: But remember all of that HOM-
Andrew: Harm to Ongoing Matter?
Thomas: Harm to Ongoing Matter!
Andrew: This is the. last. matter. There are no more ongoing matters to which we can harm and, you know, it’s only about 10% of the Mueller report but based on the testimony that Rick Gates and Steve Bannon gave during Roger Stone’s trial, I was matching it up with the Mueller report and I think there’s some explosive stuff under that HOM. We should keep the pressure up to get and to release to the public the unredacted, or at least an unredacted on Harm to Ongoing Matter version of the Mueller report.
Andrew: So that’s the significance there!
Thomas: That is significant! Cool! Alright, well Andrew thanks so much for doing a whole bonus episode, there was just, there was a lot! There was a lot and I’m glad we got to cover it all and keep it up, there’s gonna be more. [Laughs] It sounds like more witnesses, more impeachment talk, so all the more reason to keep Opening Arguments in your feed everybody! And, by the way, share it with your Uncle, what did we say? Clarence?
Thomas: Yeah, yeah yeah! Share it! Share it out if you think it helps. You know, if it helped you understand something, if it helped you make an argument or you think it’s gonna work on somebody share it out, it’s the only way in this day and age to get your podcast known because there’s so many now, there’s so many good ones and I think Andrew is the best source to really know what’s going on, one of the best sources in the entire media landscape! I’m not even exaggerating. It’s not punditry, it’s not “oh did we move the needle here” it’s Andrew really breaking down the law, breaking down [Laughs] the law. So thanks Andrew, thanks listeners and we will see you next time.
Andrew: Well thank you and we will see you then.