Transcript of OA341: Articles of Impeachment (& Espinoza)

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 341, I’m Thomas, that’s Andrew.  How’re you doing, Andrew?

Andrew:         I am spectacular, Thomas!  How are you?

Thomas:         Ah, doing great.  I can’t wait for today’s episode, I wanna learn more about impeachment, and I also love that you’ve slotted our Wild Card segment that [Laughing] we haven’t been able to get to for, I dunno, a month.

Andrew:         [Laughs]  

Thomas:         You’ve slotted that into the A Segment to make sure we get to this good listeners question.  But before all that, a quick 35-minutes on my Fantasy Football birth.

Andrew:         [Laughs]  

Thomas:         So there I was, one game out because I’d had a dreadful appearance against Andrew a few weeks ago.

Andrew:         Yeah.

Thomas:         Lost by 1.5 points.  Both our teams actually just were terrible, it was like nobody scored anything, and I thought that loss was gonna cost me playoffs.  One of the best teams, I’m at least in the second or third best in points, but no.  Everything aligned, it was all great.  Okay.  So, okay, chapter 1.  [Laughs]  

Andrew:         [Laughs]  After this I have a B Segment that I keep pushing off that is on baseball law that is on the rather ridiculous proposal by MLB to eliminate 40 minor league baseball teams.

Thomas:         Ooh.

Andrew:         So, yeah, I can go toe-to-toe with you any day of the week! [Laughs]  

Thomas:         Is that a threat? [Laughs]  

Andrew:         In a race to the bottom to make sure we have no listeners!

Thomas:         Alright, you’ve made your point, fine!

Andrew:         [Laughs]  

Thomas:         The point is I made the playoffs in the Fantasy League, congrats everybody.

Andrew:         Congrats to you.

Thomas:         This is the Opening Arguments Fantasy League, by the way.  It’s not just any fantasy league.  It’s work related!

Andrew:         [Laughs]  

Thomas:         Alright, fine, you’re right, this isn’t sports law.  We’ve got so much to talk about, great listener question as I mentioned that we’ve been pushing off but we’re finally gonna make sure we get to, and then we’re gonna do some updates on impeachment.  I’m curious what the process is supposed to be for the next few days, and I’m sure everybody is too.  Then we have – do we have a different Wild Card Segment?  Or we might have a segment that Andrew’s gonna make sure we get to about Trinity Lutheran and a new case along those lines.  It looks like you have an announcement before we get started?

Andrew:         Yeah, well related to that C Segment, it is not gonna be a Wild Card, it comes courtesy of friend of the show, Andrew Seidel-

Thomas:         Oh, well!

Andrew:         -and our friends at the Freedom From Religion Foundation.  It involves $10,000 scholarship to law students, so we have a lot of law students who listen.

Thomas:         Ooh!

Andrew:         I kinda think you’ll wanna listen and find out about this.

Thomas:         Now I think it would be even funnier if we were like, ah, no time!

Andrew:         [Laughs]  Sorry!  No time!  That’s right, poor law students.

Thomas:         [Laughs]  We hear these law students sitting there, waiting to figure out how they’re gonna get $10,000.  Oh, we’re out of time!  No, we’ll get to it.

Andrew:         They’ll be like, but thank goodness I heard about Thomas’ fantasy football team!

Thomas:         [Laughs]  

Andrew:         I don’t need to pay tuition next year!

Thomas:         Josh Allen, been a great quarterback for me all season!  But I saw-

Andrew:         Josh Allen has been!

Thomas:         -that Ryan Tanahill was available, I picked him up, it made all the difference!

Andrew:         Yeah.

Thomas:         I only won the tiebreaker by 8 points and I gained – okay, sorry, no you’re right.  Can’t do it, never mind.  Here we go, law stuff! [Laughs]  

Andrew:         [Laughs]  

Thomas:         Here’s our first segment, a listener question.

Listener Question – Can Trump Plead the 5th in Impeachment?

[Segment Intro]

Thomas:         Okay, Brian Brazil asks – ooh, I wonder if he’s related to Brody Brazil, Sharks comment- never mind, never mind!  Sports.

Andrew:         [Laughs]  

Thomas:         (Quote) “I have read arguments, both that Trump could and could not plead the 5th during impeachment proceedings.  On one hand I’ve read that since it’s an impeachment proceeding and it’s not a criminal case the 5th Amendment doesn’t apply,” (that was my first instinct, by the way) “much like the Rules of Evidence.  In addition, abuse of power is not a specific crime therefore it’s not self-incriminating even if the 5th does apply.  On the other hand, if what he’s being impeached for is considered a crime even out of office then maybe the 5th Amendment would apply.”  Ooh, yeah, excellent points either way there.  “Can you plead the 5th on impeachment?”  I’m genuinely unsure, let’s hear Andrew.  What is your breakdown of that?

Andrew:         Yeah, very straightforward answer, so this segment is gonna run 20 to 30 minutes of course.  That answer is yes, you can plead the 5th in impeachment.

Thomas:         Interesting.

Andrew:         The latter view is what’s correct, so let’s unpack this a little bit.  I thought this was a fantastic question and I have seen different pieces suggesting either side and I thought Brian did a nice job of articulating the argument that the 5th doesn’t apply which has a lot of surface level plausibility.

Thomas:         Yeah.

Andrew:         But let’s delve into that.  So the 5th Amendment protects you against compulsory self-incrimination.  It applies whenever you are called upon to testify in a legal proceeding.  The fundamental inquiry in 5th Amendment law is, is there a legal proceeding?  That does not have to mean your charged with a crime, it does not have to mean that there is a pending case or anything like that, it has a specified meaning in the case law that we’re gonna unpack. 

As a sidebar to the sidebar, the 5th Amendment privilege against self-incrimination, like virtually all of the rights guaranteed by the Bill of Rights, has been incorporated out to the State.  It also applies in State court and most crucially for purposes of this analysis, it applies even if, for example, the underlying lawsuit is a civil lawsuit.  Think about that, otherwise it would be super easy to get around the 5th Amendment.  You would just sue somebody, you would say hey, this particular proceeding is just a civil lawsuit, you don’t face any criminal liability so now you have to answer this question under penalty of perjury.

Thomas:         Hmm.

Andrew:         You answer that question and now you’ve admitted in open court-

Thomas:         Aaah.

Andrew:         -something that is admissible against you in a subsequent judicial proceeding that has not yet been brought.

Thomas:         One thing we’ve learned from this show is that one weird tricks usually – usually, not always – usually aren’t valid.  If there’s one weird trick to totally make something useless or get around it then the law is like “naw, let’s not allow that,” right?

Andrew:         Yeah.  That’s right.  I also wanna add though that that underlying question, does impeachment count as a legal proceeding?  It has never been answered squarely for obvious reasons, but the question of whether testifying before Congress, which I would say if testifying before Congress is a legal proceeding than testifying before Congress in impeachment is a legal proceeding.  That right was not clearly found in the 5th Amendment… until the 1950s.

Thomas:         Interesting.

Andrew:         We get to go back to our friend, Joe McCarthy-

Thomas:         I was gonna say, yeah, communism?  Yeah, that kind of stuff.

Andrew:         Yeah, it absolutely is that.  It was the House Committee on Un-American Activities, or the companion Senate Internal Security subcommittee, that’s what heard the army McCarthy hearings.  They subpoenaed a whole bunch of witnesses and those witnesses claimed the right not to answer “Are you now or have you ever been a member of the communist party.”  Those witnesses who refused to answer those questions and asserted their 5th Amendment rights were disparaged [Sighs] even in mainstream media circles as (quote) “5th Amendment Communists.” 

Thomas:         [Laughs]  

Andrew:         They lost their jobs, they suffered other political repercussions for taking the 5th, so the case that established that it is permissible to take the 5th in Congressional testimony is a case called Watkins v. The United States.  As we said, it was an open question at the time whether you could take 5 in response to a Congressional subpoena, and in Watkins the Supreme Court granted cert to resolve that question. 

They were reviewing the conviction of a witness for contempt for declining to answer questions posed to him by the House Un-American Activities Committee.  Watkins cited his 5th Amendment right to remain silent and the lower courts said no.  The lower courts upheld his conviction for refusing to testify and it was not until the Supreme Court overturned that conviction, plainly ruling that the Bill of Rights applies to Congressional hearings just as it applies in other cases. 

There was a really, really good – at the time that this case was pending there was a 1956 law review article that essentially said this should be a no-brainer question and called into question the trial courts that were upholding these convictions for witnesses who took 5. 

So that’s the answer to your question, yes Trump could plead the 5th if he decided to show up or if he decided to provide answers to the Senate impeachment trial.  I might point out that when Trump was running for office in 2016 he, of course, Tweeted out ‘cuz there’s a Trump tweet for everything-

Thomas:         Oh, yeah.

Andrew:         -that when Huma Abedin refused to answer questions about a private email server (quote) [Impersonation] “The mob takes the 5th.  If you’re innocent why are you taking the 5th Amendment.”  But, you know, that of course applies to-

Thomas:         I’m sure that hypocrisy will get him and then it’ll be the end of the Trump era-

Andrew:         [Laughs]  

Thomas:         -because we found hypocrisy. 

Andrew:         Yeah, exactly right.  Who could imagine a President- [Sighs] Yeah, anyway.  So really good question.

Thomas:         Let me ask you, though-

Andrew:         Yeah.

Thomas:         Does pleading the 5th – and I guess this would be more in general than specifically about Trump because it sounds like the same rules apply no matter what.  What are the limits of pleading the 5th?  Do you have to plead the 5th on specific issues or questions on a case-by-case, question-by-question basis?  Or if you’re Trump and – imagine people wanna ask just general stuff, even just questions leading into stuff.  Can he just plead the 5th and not say anything at all?  Or does it have to be related to specifically this question that might implicate me in a crime or something?

Andrew:         Really good question.  Let me unpack the various answers to that.  Number one, you can make an omnibus assertion of 5th Amendment privilege.  You can say “I’m not gonna answer any of this because all of it is something that could” – and the legal standard is that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. 

Thomas:         Pretty broad.

Andrew:         So the 5th Amendment doesn’t just protect you – yeah, right, it doesn’t just protect you from the cops bring you in, sit you down and Law & Order you and are like “come on now, if you tell us this’ll go a lot better.”  You can assert your 5th Amendment rights there, you can also assert your 5th Amendment rights not to incriminate yourself by talking about stuff that could lead to the discovery of evidence that could be used to incriminate you.  Again, for the same sort of “one weird trick” reason.  So you absolutely can assert 5th Amendment privilege on an omnibus basis, the standard is really, really broad. 

You could also assert it on a question-by-question basis, but here’s where it gets a little bit tricky, because you can waive any and all of your rights.  The most obvious is you have the Miranda Right to remain silent, but if you sit there, you’re advised of your right to remain silent, and then you knowingly sign the paper and decide to talk to the cops anyway – don’t take legal advice from a podcast, but don’t do that. [Laughs]  

Thomas:         Huh.  You hear that?  Nobody talk to the cops, says Andrew Torrez!

Andrew:         Talk to your lawyer first! Make an informed decision with your lawyer before you talk to somebody who-

Thomas:         And we don’t know you, we didn’t do anything, we don’t know you.  No, nobody talk.

Andrew:         Yeah.  So you can waive your rights and in fact the easiest way, the standard police procedure is to have a witness who communicates voluntarily sign a waiver, because then it’s easier to prove.  You can’t come back and go-

Thomas:         Yeah.

Andrew:         -no, I never told them.  But there are plenty of cases that involve waiver by conduct.

Thomas:         Hmm.

Andrew:         The witness comes in, is advised that she has a right to remain silent, talks anyway and that’s a waiver of your right to remain silent.  The way in which that applies in the 5th Amendment case is if you answer questions on a particular subject matter positively you can’t then refuse to answer on cross-examination. 

Thomas:         Hmm.

Andrew:         You can’t give one-sided testimony on a particular subject matter, you will be held to have waived your right to 5th Amendment privilege against self-incrimination with respect to that particular subject matter.  Makes sense?

Thomas:         Yeah, yeah.  So don’t even – nothin’.  Don’t even say anything I guess.

Andrew:         [Laughs]  And look, that’s what Trump’s gonna do.  Trump is not – I know the question was floated at a time in which Trump was trying to dominate news cycles by saying “I might appear.”  He’s not gonna appear, he’s not gonna answer questions, he hasn’t turned over a single document, he hasn’t responded to any of the requests.

Thomas:         Yeah.  Plus it’s gonna be like with executive privilege, you know, where – I realized just as I was asking that question, what will actually happen if anything would be he’d say the 5th and just not answer a single thing, similar to how they’ve claimed executive privilege on things that have no business at all being executive privilege, not even related, but they’ve decided executive privilege means nobody has to say anything ever to anybody if they’ve ever talked to the President.  That still seems to work.

Andrew:         [Laughs]  

Thomas:         I dunno, are the courts ever gonna catch up with that, Andrew?  Does justice ever matter?

Andrew:         I think that’s an outstanding transition to our main segment.

Thomas:         Oh, okay.  Cool!

Andrew:         How about we say that?

[Commercial – Donate to Christopher Armitage]

Thomas:         Alright well here we go!  Brian, start your yodelers, Brian!

Yodel Mountain – Articles of Impeachment

[Segment Intro]

Thomas:         I think, yeah, if there’s ever a time to yodel it’s when discussing articles of impeachment!  I wasn’t sure – I’m a little fuzzy on what’s happening now because I thought they were gonna be out, but then I guess they’re debating them?  What’s that debate process?  I dunno, basically I’m sure there’s a ton to talk about.  Ready? Go!

Andrew:         [Laughs]  

Thomas:         [Chuckles]

Andrew:         The Judiciary Committee has drafted two articles of impeachment against Donald J. Trump and we are going to break those down.  The debate that is taking place is within the Judiciary Committee right now, literally as we record this, and depending on how Nancy Pelosi schedules votes it could be voted out of the Judiciary Committee later today and potentially voted on by the entire House of Representatives by the time this airs and you’re listening to it.

Thomas:         Oh, wow.

Andrew:         If not by early next week.  So we know what the Judiciary Committee is proposing as the articles of impeachment against Trump and we’re gonna break that down.  It has to go through that two-step process, it has to be voted out of the Judiciary Committee, which it will be, and then it has to be voted out of the entire House of Representatives, which it will be.  There will be some interesting questions with respect to how the vote breaks down, which we’ll talk about and communicate over social media and our usual spots because this is all gonna happen before we records again.  We know that we are going to get the overwhelming majority of Democrats plus Independent ex-Republican Justin Amash.  We don’t anticipate getting any other Republicans, and we don’t know about a handful of very, very conservative Democrats.

Thomas:         Yeah.

Andrew:         So that’s the way the vote is going to break down.  The other thing that I find interesting as we go through both of the articles is that historically the substantive – when we look back at the votes with respect to the Clinton impeachment and the proposed Nixon articles of impeachment, which passed out of the Judiciary but were never sent to a full vote to the House of Representatives because Richard Nixon resigned-

Thomas:         Mm-hmm.

Andrew:         -while the writing was on the wall.  In both of those cases there were what you might call substantive charges.  With Clinton it was the charge of perjury, lying in the Paula Jones lawsuit.  With Richard Nixon it was the violation of the civil rights of individuals in connection with having private White House investigations and using the power of the IRS to investigate his political enemies and that sort of thing. 

Those articles, the substantive articles got a higher vote than the procedural articles.  So both Clinton and Nixon were charged with obstruction of justice, Nixon was also charged with abuse of power, and the abuse of power article got the lowest amount of votes, obstruction got a couple more votes, violating constitutional votes got one more vote than that.  So I will be watching to see if there’s any distinction between the vote totals on article 1 versus article 2.

Thomas:         Right, and I’ve also seen the idea that it might be wise strategically for some of these Democrats you’re talking about, some of these Democrats in either red or purple States, if Pelosi puts – or whoever, I guess it would be the Judiciary – if they put in a charge that’s a little softer that some Democrats can vote no on just to say they did, I’ve seen that floated as a possibility.  I dunno how much I like that idea, but I guess there could be something there.

Andrew:         Yeah, and I don’t like that idea.  So let me do a couple of things, I’ll give you some top lines right now and then we’ll break them down.  My prediction is given the polarized nature of Trump right now I don’t think that there’s a way to thread the needle.  I think if you’re a democratic congressman in a deeply red district you’ve just got to bite the bullet.  You’re either going to vote to impeach Trump or you’re not, there’s not a good way to parse that.  If you have pro-Trump constituents there’s just no way to “well I voted against this one.”  I don’t think that that’s likely.  [Laughing] My prediction record hasn’t been great lately, so maybe I’m wrong on that. 

Then secondly, I’m not a fan of how these impeachment articles are drafted.  We’ll walk through them, but I’m a little bit…

Thomas:         Interesting.  Of these ones specifically?

Andrew:         Yup.

Thomas:         Or you mean how in general they are written?

Andrew:         No, I mean the ones that have been drafted by the Judiciary Committee.

Thomas:         Yeah.

Andrew:         Yeah, yeah.  This is Congressman Jerry Nadler who has drafted these proposed articles.  Again, they have not been voted out of the Judiciary Committee so it’s possible that they will be amended, but they’re gonna take the form that we see.

Thomas:         Yeah.

Andrew:         I also wanna point out, we did a super lengthy impeachment explainer, episode 319, there’s even a transcript up so you can go back and refresh your recollection as to how the would-have-been Nixon impeachment and how the Clinton impeachment actually took place.  You and I did – gosh, I think it was almost a two-hour episode on that.  I feel like that’s a good resource, but I’m a little bit biased.

Thomas:         [Laughs]  

Andrew:         So what are the two articles coming out?  The two articles that have been drafted, article 1 is abuse of power.  This is fundamentally my opposition to the way this has been drafted.  This is drafted in such a way as to try and side-step the arguments over bribery, but as you read the abuse of power it is the crime of bribery.

Thomas:         Huh.

Andrew:         So, yeah.  I’m gonna explain why they did the thing that they did, but … I’m curious if you, maybe you disagree.  Maybe this is the lawyer in me feeling like you should confront the argument head on, but-

Thomas:         Alright.

Andrew:         The abuse of power is solely confined to Ukraine.  This begins on page 2, it says “Using the powers of his office, Trump solicited the interference of a foreign government, Ukraine, in the 2020 Presidential election.  Trump sought to pressure the Government of Ukraine to take these steps by conditioning official U.S. Government acts of significant value to Ukraine on its public announcements of investigations into the Bidens. 

Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.  In so doing he used the powers of the Presidency in a manner that compromised the national security of the U.S. and undermined the integrity of the U.S. democratic process, ignored and injured the interests of the nation.” 

Then that’s specified, it says “he engaged in the scheme or course of conduct through the following means” and it repeats what I just said.  Using both directly and with his agents asked Ukraine to publicly announce investigations into the Bidens and Crowdstrike. 

“(2) With the same corrupt motives Trump – acting directly and through his agents – conditioned two official acts on the public announcements that he had requested,” that is the release of the aid and the face-to-face meeting, and then: “Faced with public revelation he ultimately released the military and security assistance but has persisted in openly and actively urging and soliciting Ukraine to undertake investigations for his personal political benefit.”

There’s other stuff around it that we can talk about, but that’s the abuse of power argument and our listeners will recognize those are the elements of bribery.

Thomas:         Hmm.

Andrew:         I would much rather this be listed as bribery.  I think the reason that Congress decided – that Congressman Nadler decided not to list this as bribery was because he wanted to sidestep the argument over – there are really two arguments.  The argument is whether the bribery standards apply under 18 U.S.C. § 201 or under Common Law Bribery, the one that’s referred to with a capital “B” in the actual impeachment clause itself.

Thomas:         Oh, yeah. 

Andrew:         I guess to a lesser extent the Robert Mueller argument of we don’t know how valuable oppo research is, or announcing an investigation into your opponent.

Thomas:         Hmm.

Andrew:         Working backwards, that’s a dumb argument.  Congress can just call Beth Kingsley to testify.  It is – you solicit a brief from her, it is settled law that having the President of a foreign power announce on TV that they’re opening corruption investigations into your political opponent is a thing of value.  I would welcome that argument, and the idea that you would wanna sidestep that and/or sidestep the idea that maybe, because there is some merit as we’ve discussed in the previous episodes, that the conditioning of the face-to-face meeting was not an “official act” under 18 U.S.C. § 201, even though it obviously would have been Bribery at Common Law. 

I just think the way I would have written this article is I would have said “The President of the United States has committed historic and contemporary acts of bribery.”  [Laughs]  

Thomas:         Oh really?  Okay.

Andrew:         The kind of bribery that was conceived of by our founding fathers, put into capital letters and inserted as the primary reason for impeaching a President.  Also, he’s committed the kind of crime that gets you locked up. 

Thomas:         Yeah.

Andrew:         But that’s … that’s me.  [Laughs]  

Thomas:         [Sighs] Yeah.  So how was it done with Clinton?  Because part of me wonders maybe it makes sense to describe the facts rather than try to put a name on it ‘cuz it’s like is it the House’s job to do that or would that be more in the Senate because they’re actually convicting in the Senate?  I dunno, that’s just the thought off the top of my head.  Could that be the reason?  When Clinton, when those articles were written was it “Clinton committed perjury” or was it like “well he told us this when he should have said this” or something.  How did that work back then?

Andrew:         Yes.  The Clinton articles of impeachment provide specific instances.  In other words, there were four proposed, only two that were voted out.  Those two that were voted out were, number one perjury and specifically “the President provided perjurious, false, and misleading testimony to the grand jury regarding the Paula Jones case and his relationship with Monica Lewinsky.”  Article 3 was “and also he obstructed justice in trying to cover up all that stuff.”

Thomas:         Okay.  So it does outline the actual crimes and says this is-

Andrew:         Yup.

Thomas:         Alright, yeah, why don’t – we should have done that. [Laughs]  

Andrew:         I agree.  Now, look, part of the reason why we should have done that is because this first article is, by its terms, confined to the Russia-Ukraine withholding of aid.  I’m previewing a bit of future questions, none of the other stuff that Trump has done could possibly used as relevant evidence in support of this first article.  That’s not necessarily the case with the third article which I’ll talk about in a minute.  But because this one is confined to its facts, I think it makes sense to call it what it actually is, which is bribery, because the Republicans are already starting with the “you haven’t even specified what the crime is.” 

That’s an incredibly stupid argument, because this article is entitled “abuse of power” and as we previewed, one of the three articles of impeachment that was voted out of the House committee against Richard Nixon was “abuse of power.”

Thomas:         Mm-hmm.

Andrew:         [Laughs]  That was article 3, the third article of impeachment that was voted out against Richard Nixon was also voted out for abuse of power.  Now I will tell you, delving into that the abuse of power in the Nixon impeachment was also related to the obstruction charge, so for example that article says that one of the ways in which President Nixon abused his power was by, he has (quote) “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” [Laughs]  

Thomas:         Oh, hmm.

Andrew:         And “willfully disobeyed such subpoenas.”  Yeah, so this will be very familiar stuff.  So in other words, if you are looking at small “p” precedent, and that’s what we have to go on here, we do not have case law involving impeaching a President, we have prior conduct.  If we go by prior conduct, charging a President with abuse of power – and all three impeachments involve obstruction of justice.  There is the abuse of power and also the obstruction of justice, these are reasons to impeach a President. 

I don’t think that the Republican argument, like any of the Republican arguments, is very good, but I would have preferred that that first article be a charge of bribery.  I am sure if I had access to the conversations between Adam Schiff and Jerry Nadler that they would have some argument, and probably a non-trivial, non-ridiculous one, for why they did it the way they did.  If I were to make a supposition it would be the issue that we talked about a couple of episodes ago, and that is because the Law & Order-watching American public has an idea of what bribery is that might not necessarily match up maybe they were trying to change the rhetoric around it.  I don’t know, I’ve been immersed in this and from me being immersed in it I was a little bit disappointed with how article 1 was framed.

Thomas:         Well it’s a tough job.

Andrew:         [Laughs]  

Thomas:         I mean, we’ve talked about this from the beginning.  I genuinely wondered whether or not they should include Russia stuff or Mueller stuff and that’s a real decision that either way it seems like there are positives and negatives to it.  If you don’t include it then it’s like oh, was that just for nothing?  Was that not really impeachable even though we all know it was impeachable, but if you do include it is it distracting from the Ukraine stuff which seems to be a much easier to grasp storyline, something that everybody can maybe vote a little easier on, communicate a little easier on.  [Sighs] There’s gotta be a lot of discussion over how exactly to do this and it’s a tough job that I guess I don’t envy. 

Andrew:         [Laughs]  Yeah, that’s right.  And look, there is the potential that if there is a bombshell development in connection with any of the Mueller stuff that could come in under these articles of impeachment.  This is not something I’ve seen anybody else point out.

Thomas:         Hmm.

Andrew:         But it seems really, really clear to me.  In both article 1 and article 2, although it really only makes sense in article 2 which is the obstruction of justice, if you go to page 7 beginning at line 21 – again, we’ll link these in the show notes so you can do this.  After describing – so obstruction of justice article is about how the White House obstructed the investigation into the bribery that is the subject of article 1. 

Specifically, “Trump abused the powers of his high office by: (1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought by the Committees.”  That’s true, and he did that. 

“(2) Directing other Executive Branch agencies to defy lawful subpoenas and withhold the production of documents and records, in response to which, Department of State, OMB, Department of Energy, and Department of Defense refused to produce a single document or record.”  That is 100% an abuse of his executive authority. 

Then “(3) Directing current and former Executive Branch officials not to cooperate and to defy subpoenas,” including Mick Mulvaney and various other subordinates who were issued subpoenas who all blanket refused to comply with those subpoenas. 

Then we get to this sentence, which says: “These actions were consistent with President Trump’s previous efforts to undermine U.S. Government investigations into foreign interference in United States elections.”  That’s it.

Thomas:         Hmm.

Andrew:         Then, “Through these actions, Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct” that’s why it’s an abuse of power.  That language is taken almost word-for-word from the third article of the Nixon abuse of power.  Again, following precedent.  I think that sentence says hey, in telling this story we can explain the context of this story and we can explain the gravity of the offense by talking about Trump’s previous efforts to undermine foreign interference in U.S. elections, which is everything that is contained in Volume II of the Mueller Report.

What this forecloses, in my view, is anything related to emoluments-

Thomas:         Hmm.

Andrew:         -to Trump’s taxes, to other sort of mainstream corruption, and look, we may get – the Supreme Court may deny cert in the Mazars case in a couple of days.

Thomas:         Huh.

Andrew:         So that information-

Thomas:         Then all of a sudden a whole new batch of articles of impeachment to write, huh?

Andrew:         That’s right!

Thomas:         Get out your quills, Nadler!

Andrew:         Yeah, yeah.  As currently written, even if there is direct evidence of corruption by the President in his taxes, that could not come in.

Thomas:         Could not come into this specific thing, but we could do this again, right?

Andrew:         We could.  We could do this again.

Thomas:         I wanted to run this by you, because that’s been one thing I’ve wondered about.  Would it have made sense when we talk about what actually to include, Mueller, all that, would it have made sense to maybe phrase this in such a way that it’s like okay, there’s still a lot of investigation to be done on Mueller stuff – not my exact language, I’ll clean it up once I draft the actual articles, but bear with me! 

This isn’t related to the Mueller stuff because there’s still investigation to be done.  By the way the President is still withholding evidence and all that, but the Ukraine stuff, we already have all the facts from the very beginning with the phone call transcript, the facts are there, this is already enough to impeach on so this is that, but we reserve the right to, at a later date if necessary, we’re still pursuing other avenues of investigation. 

Would it have made sense to phrase it in a way that’s like okay, yes there’s all these other crimes that we could and are still in the process of investigating and could impeach him on, but impeachment is sort of like – it’s not like you need a certain number of crimes to be impeached?

Andrew:         [Laughs]  

Thomas:         You know, it’s like he’s already hit the threshold with this Ukraine stuff, so we’re just going ahead on that and sort of neatly dividing it out so that you sidestep the question of whether or not to include the Russia stuff in these articles.  Would that have made any sense?

Andrew:         I think, parsed correctly, that the way you ended that is 100% how I would have drafted these articles of impeachment.  So let me unpack that a little bit but I agree with you completely.  Now the thing that you would want to avoid is, you’d want to say “these articles are on these articles,” but then at the end I would wanna include the standard legal waiver that says nothing in these impeachment articles is meant to exonerate or otherwise-

Thomas:         Right!

Andrew:         -indicate that ongoing Congressional investigations into Donald Trump’s conduct, including without limitation emoluments and list all of it, then say although we’re not bringing on those charges that doesn’t mean that we’re done.  This should not be indicated as a-

Thomas:         Yeah.

Andrew:         As any kind of a waiver.

Thomas:         Because my thinking is like it’s not as though when somebody is just a completely corrupt POS like Trump is, it’s not as though you have to like wait for him to finish committing all the crimes to get him out?

Andrew:         [Laughs]  

Thomas:         Leave him in office for a year or two while he finishes doing all his crimes and you investigate them and the courts clear the different stuff you’re trying to do.  It’s more like okay, this is an emergency that this criminal is in charge so the minute there’s even one article of impeachment where we’ve tied up all the loose ends and we’ve investigated enough, we start there and then reserve the right to do more later if necessary.

Andrew:         Yeah.  You would not have an FBI investigation that’s like, well, this serial killer still has some other plans in the works.

Thomas:         [Laughing] Yeah, exactly!

Andrew:         Let’s see how those play out!

Thomas:         Hey do you have any other victims comin’ up?  Should we wait for – we just wanna make sure when we charge you with stuff we get everything.

Andrew:         We wanna charge you with everything!

Thomas:         Yeah, any current plans?  We’ll hold off!

Andrew:         [Laughing] Yeah.  So look, the reason I parsed it as narrowly as I did is because you don’t want to – because A, it would be a break with prior precedent.  None of the previous articles of impeachment have said by the way there’s lots more bad stuff that we’re not gonna talk about yet, but none of the other Presidents are this bad!  To me that’s a reasonable failure to abide by prior norms. 

Number two, as long as you’re clear that says “we are impeaching you over these specific articles” because there is, even though it’s only analogistically, there is a concept of you are the defendant in a trial before the Senate, so you want to make sure that your articles of impeachment hue as closely to an indictment as possible because otherwise you’re sort of handing out the argument of like oh, well this is supposed to be a trial but this is a farce of a trial, I don’t even know what I’m being accused of. 

But I think you could make that super clear, of no no no, you’re being accused of one and two but by specifying one and two part of what you did in two was make it impossible for us to get the information we need to charge you with three, four, and five.  We think these are viable and reasonable avenues of inquiry and investigation and we do not intend to waive our rights or otherwise weigh in on that.  I think that is brilliant and I wish they had done that.

Thomas:         Thank you!  Nadler, call me! [Laughs]  

Andrew:         And I wish Opening Arguments had been attached to the House Judiciary Committee.  Next time, we’re out here!  We’re doing this for free, guys, you can give us a call!

Thomas:         Well it’s pretty easy to play Thursday-Morning Committee Chair.  Armchair committee-

Andrew:         That’s my favorite fantasy game! 

Thomas:         [Laughs]  

Andrew:         Fantasy football is a close second.

Thomas:         [Laughing] Just armchair Committee Chair-ing over here! [Sighs]

Andrew:         So there you go, these articles are going to get voted out of the Judiciary Committee as I said, probably by the time this show goes to press, so we will see what they look like in their final form but I don’t expect major changes.  If they do we’ll cover it.  If it’s an emergency we’ll do an emergency episode, so we’ll make it happen.

Thomas:         Alright, there you have it.

[Commercial – promo code “OA50” offer expires Jan. 5th]

FFRF Scholarship Essay Contest – Espinoza v. Montana Department of Revenue

[Segment Intro]

Thomas:         That leaves us… no time to talk about the $10,000 that the law- No, I’m just kidding!  It’s time for our C Segment, our guaranteed, not a wild card it’s just a card!  [Laughs]  Here, let me read the card.  It’s our next segment involving the possibility for a $10,000 scholarship for law students, so what are we talking about today?

Andrew:         Yeah, I’m gonna include the link in the show notes, this is the 2020 Cornelius Venderbroek Memorial Essay Competition put on by our friends over at the Freedom From Religion Foundation.

Thomas:         What a name!

Andrew:         Yeah, it is $10,000 in scholarships.  So the first prize is $4,000 but there are multiple other prizes and all sorts of great stuff that’s out there.  The essay writing topic is “Are ‘No Aid’ Clauses Constitutional?”  It has to do with a really critical Supreme Court case that is currently pending, for which our buddy Andrew Seidel is lead counsel for FFRF, has submitted a truly excellent amicus brief-

Thomas:         Huh.

Andrew:         -on behalf of seven or eight additional organizations.  Sometimes it’s our friends over at the Secular Humanist Association.  FFRF is taking the lead on this one.  This is a super tricky case, and it is really, really important and we are headed towards potential disaster.  So the reason I’m signal boosting this is not just because it’s scholarships for law students, which hey, if you’re out there and you’re an organization and you give away scholarships to law students shoot us an email,

Thomas:         Yeah!

Andrew:         We have lots of law students that listen to this show and we’re happy to mutually benefit everyone.  This goes beyond that.  This is not just an essay writing contest to polish your writing skills, it is really, really crucial that we crowdsource and mine as much as possible the arguments in favor of the constitutionality of no aid clauses because under the Trinity Lutheran standard, this current pending case which is Espinoza v. Montana Department of Revenue, is gonna go the other way. 

It may go the other way on a 7-2 ruling in the same way that Trinity Lutheran was 7-2, and the implications are truly terrifying.  I say that, again, you and I are both atheists.  The “no aid” clause is in the Montana constitution, was written in the 19th Century, not to protect the rights of atheists, but to protect against Sectarian awards uniquely, narrowly targeted religious aid from the government to a particular sect.  There’s 800 years of history that says we don’t really want to have that happen.

So let me unpack this a little bit.  Montana’s State constitution, Article 10 Section 6 has what is called a “no aid” clause, and like 3 dozen states have these kinds of clauses.  This is not Montana leading the way on progressive – this is just 37 States.

Thomas:         I don’t know that Montana leads the way on anything.

Andrew:         D’aw, we’re gonna get emails again!

Thomas:         [Laughs]  

Andrew:         We love Montana, we love our Montana listeners and we seriously do love this provision of the Montana State constitution, which says “aid prohibited to Sectarian schools.”  The government, and it defines all the sub-branches, “the legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation” of any money of any kind or grant any lands or any “other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

Super-duper clear.  Again, I wanna point out in this litigation that that’s what the people of the State of Montana voted to put in their constitution.  This case, if it goes the other way and there’s a huge risk that it will, will say you can’t do that.  Will say if the residents of a State, of any State, no matter how liberal, no matter how conservative, get together and go, you know what?  We got Catholics, we got Protestants, we got Mormons, we got Hindus, we got Jews, we’ve got all these different religious groups and you know what?  The way in which we want to be fair is to say we just don’t wanna give out money-

Thomas:         Yeah.

Andrew:         -to religious institutions.  Not ‘cuz we hate religious people, but because we-

Thomas:         It’s sort of like a truce. 

Andrew:         Yeah!

Thomas:         Eh, let’s not have this battle where we each try to get control of government and pay ourselves. 

Andrew:         Exactly right.

Thomas:         Stay out of it.

Andrew:         What is at stake is whether it is – not whether you have to do that, but whether it is even permissible for people to do that.

Thomas:         Yeah, wow.

Andrew:         Here’s how the conflict sets up.  Again, I’m gonna link, obviously the scholarship in the show notes, I’m gonna link the underlying court briefs and we’re gonna talk about it a little bit here. 

So, 2015, Montana created a kind of quasi-voucher program.  That was called Senate Bill 410, it has now passed into the Montana Code as § 15-30-3101 and following.  That did two things, and you can see [Laughs]  even in the two things, the way in which the legislature is like, look, we know we’re treading on thin ice here so we’re gonna try and tiptoe around the fact that what we want to do is we wanna give tax money to private religious institutions to instruct students in religious education.  That’s not a thing you should be able to do at the Supreme Court. 

Here’s what Montana did.  Montana first had a fundraising section and that fundraising section was a tax credit program that said hey, if you donate to outside charitable organizations that provide educational scholarships, those are called SSOs in the statute, or Student Scholarship Organizations, we will donate you – we will give back to you a dollar-for-dollar tax credit. 

Let me explain why that’s significant.  If I donate money to a nonprofit organization like I do to the Freedom From Religion Foundation, for example, I get to deduct that from my taxes.  So the value of that deduction is whatever my marginal tax rate is, so somewhere between 30 and 40 cents on the dollar.  This is a one-for-one tax credit.  Makes sense?

Thomas:         Mm-hmm.

Andrew:         It’s only up to $150, so that’s part of the counter-argument.  But this is for the funding of the slush fund.  So SSO gets tax dollars, it’s a charitable organization, but this unique charitable organization is getting essentially it’s worth three times the bang for your buck to give money to the SSOs. 

Then, part two, the SSOs can then use those donations to fund scholarships to any qualified education provider.  Again, you hide behind – eh, let me not, let me steel man.  Let me not mischaracterize.  Legislation is written this way, lawyers talk this way, but you now have a tax credit to an individual donation to an SSO, the SSO funds a QEP, and lots of people are-

Thomas:         Their eyes glaze over because they’re not document addicts like some of us?

Andrew:         Yeah.  [Sighs] Yeah, like at least 50% of this podcast.

Thomas:         Document fiends? [Laughs]  

Andrew:         [Laughs]  So the SSOs take their slush fund and they give out scholarships to any QEP, a qualified education provider, which was defined to include – and again, this is from the cert petition – essentially all private schools in Montana.  SSOs pay the scholarship directly to the private school.  [Laughs]  So kind of a version of the Modest Needs model that we flogged last month for Vulgarity for Charity.  The SSO says hey, we wanna sponsor Thomas Smith into the Cottonwood Christian Academy.  You let him in and we’ll pay all of his tuition, and we’ll pay his tuition out of this slush fund.

Thomas:         Definitely something government should be doing, yeah, sounds great.

Andrew:         Yeah, that we raised not just with tax money, not just tax exempt, but we raised with a tax credit.  A dollar-for-dollar tax credit. 

Second part.  So first, the SSO pays directly to the school, and second neither the donor nor the SSO could restrict the scholarships to any particular school. 

Thomas:         Wow.

Andrew:         In other words, the SSOs could not – once a school was on the list and all the schools were on the list, they could not say “well yeah but we’re not giving it out to Cottonwood Christian Academy which teaches that the earth is 6,000 years old.”  So that’s the law, it passed the Montana State legislature.  It then went to the Montana Department of Revenue to craft rules to guide the implementation of the law.  This is the administrative state that’s getting [Sighs] dismantled thanks to Neal Gorsuch and Brett Kavanaugh.  The law says in order to pass constitutional muster the tax credit (quote) “must be administered in compliance with Article 10 Section 6 of the Montana constitution.” 

So you have this fundamental tension, because the law says hey, administer this in a way that is consistent with our constitution but by the way [Laughing] do the opposite of what our constitution says.  So the Montana Department of Revenue tried to figure this out, and they created Rule 1.  [Laughs]  I guess they don’t have a lot of these to figure out.  But Rule 1 was the implementing rules.  It says that a QEP, a Qualified Education Provider, notwithstanding being on the list, may not be (quote) “a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination.” 

So you see what they did there.  They just took the language from the law and they inserted word-for-word the language from the constitution.

Thomas:         Huh.

Andrew:         It was like hey, um, sure.  Create the slush fund, give out scholarships, but you can’t give the scholarships to an explicitly sectarian institution controlled in whole or in part by a church.

Thomas:         Yeah.

Andrew:         They did that ‘cuz that’s what the State constitution requires.  So parents sued the – affirmatively filed for injunctive relief to block Rule 1 from going into effect.  By the way, again, remember that’s the procedural posture of most of these cases now in the post-Trump world.  We are not talking about the God’s Not Dead, God’s Not Dead II of-

Thomas:         [Laughs]  

Andrew:         Oh these poor families are getting sued by this overbearing – no, these are people bringing plaintiff’s lawsuits trying to block implementing legislation and the rules from going into effect so that they can get tax dollars to send their kid to a religious school.  Because of reasons, they won at the trial court level.  The trial court issued an injunction and blocked Rule 1 from going into effect, it has not yet gone into effect.  That made it up to the Montana Supreme Court and the Montana Supreme Court said “are you kidding me?”

Thomas:         [Laughs]  

Andrew:         They said look, we have a constitution, the constitution says you can’t give tax dollars to churches, this bill – okay, we take it out of the left pocket, we put it in the right pocket, we take it out of the right pocket and we put it in Ken Ham’s pocket.  But still, it doesn’t say via how many steps, it very clearly is unconstitutional and moreover the Montana Supreme Court said – and by the way, Rule 1’s great and all but the underlying purpose of this bill was to give money to sectarian institutions.  We’re just gonna find the whole statute unconstitutional.  There’s no way to save the statute via this implementing legislation.  Montana, this is the Montana Supreme Court interpreting the State constitution of Montana about matters of issue concerning legislation in Montana.

Thomas:         Yeah.

Andrew:         About people who live in Montana, so case closed, right?

Thomas:         Right.  Yeah, what the heck?  That’s what I would think based on, you know, that one weird trick episode about abortion.  How does that interact here?  This is a State issue, the State Supreme Court – is it that the U.S. Supreme Court can say that it violates the U.S. constitution to even have this rule, is that what it is?

Andrew:         Oh man, I’m giving you another half point credit on T3BE.

Thomas:         Alright!

Andrew:         That’s exactly right.  The argument – and this is why I walked everyone through this, this is gonna give all of our listeners who are applying for this scholarship a leg up.  The argument before the Supreme Court is Article 10 Section 6 of the Montana State constitution violates the 1st Amendment, you can’t have it.  It is asking the Supreme Court to invalidate a 150-year-old provision in the Montana State constitution-

Thomas:         Wow.

Andrew:         -as violating a newly created understanding of the 1st Amendment Bill of Rights.  If you’re thinking, “boy, I thought that conservatives were supposed to be pro-federalist, they’ve even got that in their society name and states are laboratories of democracy,” well, you know, go eff yourself.

Thomas:         [Laughs]  

Andrew:         Don’t put that in your essay! 

Thomas:         It’s the official legal response, yeah.

Andrew:         So, look, I want to say this.  I’m gonna include all of the resources from this show in our show notes which include our three-part you be the Supreme Court, episodes 14, 17, and 18 in which we looked at the Trinity Lutheran decision and I confidently predicted the Court would go the other way, our two episodes breaking down, once I was wrong, the Trinity Lutheran decision, episodes 82 and 85.

This is the major takeaway I want you to have in mind, which is in that “You Be the Supreme Court,” the case that I used to convince you that the Supreme Court was rather easily gonna rule the opposite of how they did, that is against Trinity Lutheran and in favor of the Missouri provision, was a case called Locke v. Davey, which is an Oregon case that upheld a State restriction under a State constitutional provision that prevented you from using general scholarship funds to get a degree in worshipful theology.  Basically said the States can say, yeah look, we’re gonna make funds available for education but we’re gonna restrict out and go there’s a more general principle here of we’re not gonna spend tax dollars on explicitly sectarian stuff.  That case was called Locke v. Davey

I thought it plainly controls.  It plainly does control!  Trinity Lutheran is inconsistent with Locke v. Davey, but nevertheless the Supreme Court was like, “we don’t wanna hear about that.”

Thomas:         Huh.

Andrew:         We’re creating a brand new right of churches to compete for public funds out of whole cloth.  Again, we went through that at great length, episodes 82 and 85.  The two pages in which Anthony Kennedy creates the Trinity Lutheran test have zero citations in them, he just made it up.

Thomas:         Cool!

Andrew:         The reason I am emphasizing this is that the Respondent’s brief here, the State of Montana defending its policy, is based upon Locke v. Davey.  Look, again, it’s a good argument and they’re right!

Thomas:         Yeah.

Andrew:         But this Supreme Court has already said we don’t care about Locke v. Davey and I can see a Brett Kavanaugh looking out and saying “yeah, counsel, you’ve said this is inconsistent with Locke v. Davey.  Suppose, as a hypothetical-

Thomas:         [Laughs]  Yeah, what part of “we’re religious conservatives who don’t care about what the law was” don’t you understand, counsel?

Andrew:         Well the way you phrase it is you say, “assume for the sake of argument that we believe Trinity Lutheran implicitly overruled Locke v. Davey.”

Thomas:         Huh.

Andrew:         What do you say now?  Do you have another argument?

Thomas:         My argument was please vote for Hillary Clinton in 2016.

Andrew:         [Laughs]  Yeah, that’s not a great Brett Kavanaugh argument.  But yeah, it is really, really important that we participate in this discussion because it seems plain to me that Montana is correct and it seems plain to me that we are on a collision course for the Supreme Court to invalidate a core feature of a supermajority of State constitutions.  So you have a chance to win some money and also do some real good, so that’s why I’m flogging it.

Thomas:         Alright, good luck!  Cite us in your essay, it’s … [Laughs]  a good way-

Andrew:         Oh definitely! [Laughs]  

Thomas:         No, no, write a real essay, win the prize, and if you win contact us and we’ll talk to you about it at some point, whenever that is.

Andrew:         Yeah!

Thomas:         That’d be cool, do a little breakdown of it or something.  So good luck everybody!

Andrew:         Yeah, also you could up your Patreon amount if that happens! [Laughs]  

Thomas:         Yeah.  [Laughs]  Well we want our cut!  Clearly we were a factor!  No.  [Laughs]  Yeah, I want a cut of your scholarship to law school! [Laughs]  

Andrew:         [Laughs]  You could use that!

Thomas:         I’m gonna use, yeah, part of it to go buy some books or something.  No, everybody good luck with that, that’s really cool and also that case sounds horrifying, I can’t believe that it’s not just a case closed and what kind of world are we living in, Andrew?  This is what we have to expect for the next, what, thirty, forty years because the Supreme Court’s been ruined?  Pretty much gonna be this for-

Andrew:         Yeah, look-

Thomas:         Cool.

Andrew:         We’re gonna continue to give coping strategies and how to fight holding actions, but yeah.  That’s actually not a bad preview for Tuesday’s episode in which we’re gonna talk about just… how bad the Supreme Court is.

Thomas:         [Groans]  Oh great.  Alright well on that depressing note let’s do something much less depressing, much more fun, which is to thank our patrons!  Our new patrons here on First Timer Friday over on  Hope you’re enjoying all the goodies, the accidental early answers that come out [Laughs]  before the question’s even asked!

Andrew:         [Laughs]  

Thomas:         And also, by the way, Law’d Awful Movies coming at you very soon!  Law’d Awful Movies, Christmas Edition.  We’re trying to find a good Christmas law movie that – I mean, we have a candidate but it’s so bad I’m hoping- [Laughs]  

Andrew:         Oh it’s so bad, I wanna do it!  I wanna do it so bad!

Thomas:         But I also wanna do something people have heard of and this is just – well, we’ll see.  Anyway, Christmas Edition, can’t wait, so hop onto and I’d like to thank our new patrons!

[Patron Shout Outs]

Thomas:         Alright, thanks new patrons!  And now it’s time for T3BE, Thomas Takes the Bar and Answers the Wrong Question Out of Two Every Time.  Narrows it down to two, expertly narrows it down to two then gets it wrong.  What’s that acronym or whatever?  What’s that abbreviation?

T3BE – Question

[Segment Intro]

Thomas:         Let’s go!  Here we go, that’s it, I’m gonna get right back on the right track here, I’m going to not do that.  Although side note, I might probably just do that again.  What’s the question?

Andrew:         [Laughs]  Alright Thomas, before putting her home up for sale, a homeowner painted the living room ceiling to conceal major water damage caused by a leaking roof that had not yet been repaired.

Thomas:         [Laughs]  

Andrew:         On the first day the home was offered for sale, the homeowner gave a buyer a personal tour.  The homeowner made no statements at all regarding the water damage or the roof.  Without discovering the water damage or the leaking roof and without consulting a lawyer, the buyer immediately agreed in writing-

Thomas:         Oooh, that’s always a good idea.

Andrew:         -to buy the home for $200,000.  Yeah, I feel like there’s a little bit of editorializing going on in this question here.  Before the closing date, the buyer discovered the water damage and the leaking roof.

Thomas:         Oh!

Andrew:         The cost of the repair was estimated at $22,000.  The buyer refused to go through with the purchase.

Thomas:         Hmm.

Andrew:         If the homeowner sues the buyer for breach of contract, is the homeowner likely to prevail?  A) No, because no contract was formed since the buyer did not have a real opportunity to understand the essential terms of the contract. 

Thomas:         Hmm.

Andrew:         B) No, because the homeowner concealed evidence of the water damage and the leaking roof.  C) Yes, because the homeowner made no affirmative statements of fact about the water damage or the leaking roof, or D) Yes, because the buyer acted unreasonably by failing to employ an inspector to conduct an independent inspection of the home.

Thomas:         [Sighs] Interesting, interesting.  From my home-owning experience, maybe this is a California thing, but I thought the inspection was mandatory.  I didn’t even think you could – I’m pretty sure you can’t do it without the inspection.  I guess maybe if you buy in cash, maybe it’s part of the bank mortgage part, maybe that’s why you have to do it.  Okay, so we’ll just assume that’s not the case.  Uh, interesting.  Tough one.  I think a little less tough than the last one so hopefully I can get it right but we’ll see.

Alright.  A – so essential facts are – it’s curious.  Okay, so I’ll go through what I think are the critical facts.  They painted the living room ceiling.  It does say “to conceal major water damage.”  I think that’s pretty important.  But it is true according to, you know – along with, rather, answer C, they didn’t make any statements regarding the water damage.  They didn’t say [Laughing] “Definitely no – and now as you see here, this room doesn’t have any water damage!  Definitely taking a tour, would you like to see this definitely not water damaged ceiling?”  They didn’t do that, so mm?  Could be something there.

Without discovering the water damage or the leaking roof and without consulting a lawyer – I don’t really know why that factors in this case. – the buyer immediately agreed in writing to buy the home.  Before the closing date – one thing I struggle with is I don’t really understand the significance of closing dates, it’s been a problem in past questions.  Do they have a contract or what’s the closing date, does the closing date mean they don’t have it?  Maybe I should just look that up sometime, it would help me out.  Anyway, cost of repair, blah blah blah.

Okay, so the homeowner is suing the buyer for backing out.  The buyer discovers the water damage and that it’s gonna cost $22,000 and was like “I’m backing out.  A, no, because no contract was formed since the buyer did not have a real opportunity to understand the essential terms of the contract.  That’s like a plausible-esque answer but I actually don’t [Sighs] I don’t really think that’s it.  Did not have a real opportunity to understand the essential terms.  I dunno, something about – I don’t like it.  I don’t like A, it’s plausible-ish sounding but I just don’t think that’s quite describing what’s happening here.

B, no because the homeowner concealed evidence of the water damage and the leaking roof.  That’s a strong contender, that’s straightforward.  They did conceal evidence that’s in the fact pattern of the question, so definitely B is on the list. 

C, yes because the homeowner made no affirmative statements of fact about the water damage.  That’s like – ah, I’m like 60% on that one?  It’s possible, I’m not in love with it but I could see that being the key if they didn’t make any – I dunno, I think just painting to conceal, which it says.  “Homeowner painted the living room ceiling to conceal water damage.”  I think that’s already enough it seems like, to me, just to my instincts here, regardless of whether or not they said “definitely no water damage in here!” 

Or D, yes because the buyer acted unreasonably by failing to employ an inspector to conduct an independent inspection of the home.  This is tough because in terms of my narrowing it down I’m like B is definitely a possibility so that’s on the list and C and D I find kind of equally almost possible?  I dunno, maybe I would put D as slightly more plausible than C.  So if I’m going with my final two it’s B and D. 

Yes because the buyer acted unreasonably by failing to employ an inspector.  I mean [Sighs] that could be it.  It could be the case that you get to do a tour of the house and it’s up to you whether or not you have an inspection done, you decide not to do that, you know?  It’s like alright, you kinda got into this mess and it’s your fault.  I could see D being possible, but I do also think that if you’re giving a tour and you’ve done something to conceal damage, I gotta think that’s enough to be able to get out of the deal. 

So assuming I’m anywhere close on my analysis [Laughing] of D being the most plausible, which, who knows?  Could be A or C, but I’m gonna go with B.  It’s the straightforward answer and we’ve seen on this new test book or whatever that that’s been the right answer?  It’s also been the wrong answer, so no idea either way but this is one of those times where I think yeah, you concealed the evidence, that should be enough to let the person get out of the contract.  So B, final answer.

Andrew:         Alright!  And if you’d like to play along with Thomas, you know how to do that, just share out this episode on social media, include your guess, your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright folks, thanks so much for listening!  We will see you on Tuesday.

[Show Outro]

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