Listen to the episode and read the show notes
Topics of Discussion:
- Yodel Mountain Part 1 – McGahn Subpoena Litigation
- Yodel Mountain Part 2 – Has the President Been Impeached?
- Yodel Mountain Part 3 – This One Weird Trick
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments. Merry Christmas Andrew Torrez! I’m Thomas Smith, how’s it going Andrew?
Andrew: Merry Christmas Thomas Smith, happy holidays, I am doing fantastic. How are you?
Thomas: Oh, good! I was visited by three ghosts in the night.
Thomas: And I’ve gotta turn myself around.
Thomas: I’ve gotta stop [Laughs] What was it? I saw some Onion post about how Trump, ghosts are getting tired of meeting with him. They were like every year the ghosts do the thing with Trump, it doesn’t work.
Andrew: [Laughs] If I were more literarily gifted I would say that my show notes for today are what if John Roberts heart grew three sizes that day?
Andrew: How about that as a tie in and a preview?
Thomas: Well I’m so glad we’re here on what I guess will be – well, I think we’re gonna see if we can get this out early to patrons, I don’t know. You’re hearing this, but we don’t like to take any time off and it’s a show philosophy we have.
Thomas: And I tell you, for me it comes from just being a longtime podcast listener and always being annoyed that you’ve gotta go home for the holidays and see all your Uncle Clarences and your Uncle Franks, who stopped listening by the way but you’ve still gotta see Uncle Frank often and you’re not even armed with anything to listen to because all your favorite podcasts took a week or two off. I always hated that so that’s why we here at the show didn’t take the time off, and we’ve got a great episode for you.
Andrew has some really interesting stuff, I’m sure you’ve seen some back and forth about whether or not Trump was really impeached? I dunno, I guess because the controversy over Nancy Pelosi handing over the charges, so we’re gonna get into all of that. Really interesting controversy there and perhaps, Andrew has hinted that perhaps there’s a “one weird trick” that John Roberts could stymie Mitch McConnell, I’m really curious. Usually the “one weird tricks” aren’t valid but every so often when [Laughs] the lights are up and the presents are all wrapped and everything is just right, every so often the “one weird trick” is real.
So I’m excited and we’re going to talk – this is pretty much yodeling. It’s a Yodel-Christmas crossover, right?
Andrew: Yeah, absolutely!
Thomas: Alright! Well good stuff. I’m so excited that we could still do an episode right around Christmas, Andrew, so thanks for taking the time when I know you should be cooking just all kinds of amazing-
Thomas: By the way, mashed potatoes without the peels in ‘em, without the peels, no peels. We agree on that.
Andrew: Obviously, yeah, I don’t know what kind of monster would- uck.
Thomas: [Laughs] So I mentioned that if you leave the peels in on the potatoes in the mashed potatoes you might as well also leave the wrappers on the butter that you put in there, right? It’s the same.
Andrew: Sure! They have the same nutritional-
Thomas: Exactly, and then that’s the funny thing because everybody’s response is “no, the peels are where you get these vitamins.” I’m like okay, okay. [Laughing] Am I to understand that we’re eating what’s basically carbs and fat, just pounds and pounds of butter, cream, whatever, everything that goes in mashed potatoes, but I need a little bit of extra B7? Because that’s gonna be the difference in my health? Anyway, so that’s what you’ll be doing right when we finish this, so we’d better get to it. Let’s start yodeling! Brian, punch it!
Yodel Mountain Part 1 – McGahn Subpoena Litigation
Thomas: I like telling Brian to punch it, it’s fun.
Thomas: Especially when there’s a good yodel. Maybe it should be kick it for yodeling. Kick it? I dunno.
Andrew: We could do it like the Beastie Boys? You gotta fight for your right to party?
Thomas: [Laughs] To yodel! Yooooodel!
Andrew: You gotta fight for your right to yodel. Oh my gosh! [Laughs]
Thomas: Brian, record the parody song, right now. Put it in the thing. Okay, what’s going on with impeachment, catch us up, so much to talk about.
Andrew: Yeah, so the first thing that I wanna talk about that is making the rounds is this report, 100% accurate, that the House Committee on the Judiciary has reserved for itself through its counsel, Doug Letter, the right to impeach Donald Trump again.
Thomas: Oh, well we got another Beastie Boys cover to do.
Thomas: Fight for your right to impeeeeeach Trump again! Yeah, wow. Well why not? I actually said this on my show, I was like what’s to stop the House from impeaching him again? Especially if he’s reelected.
Andrew: Uh, yeah. So here’s the context in which this arises, just so you understand, then we’re gonna go to the statement which is getting a lot of traction but I don’t think really is a controversial statement in any way whatsoever.
So this is case number 19-5331, this is the pending appeal to the D.C. Circuit on whether Don McGahn has to obey the subpoena that was sent to him by the House Judiciary Committee to testify. This is McGahn, at the instruction of the White House, is taking the indefensible position, the legally wrong position, that the President enjoys absolute executive immunity and that means anybody he’s ever talked to ever-
Andrew: -can defy congressional subpoenas and can never testify if it could possibly hurt Donald Trump in any way whatsoever.
Thomas: See, cuz what I know about the founding fathers is they really wanted to create a monarch. They were super in love with that idea that the President would just be an all-powerful king.
Andrew: Yeah, we have broken this down two dozen times on this show, the argument is nonsense, it’s meant to be delaying nonsense. I’m going to prove that by citing their own words in just a couple of minutes. But what happened in that case was that on the 18th of December, so last week, sua sponte, after the House articles of impeachment were voted out, the Court issued a per curium order and it said hey, we want you no later than 5 days from now, that is Monday, December 23rd at 4:00pm, we want you to file supplemental briefs (quote) “addressing the effect of the articles of impeachment on the issues in this case” (end of quote).
So the parties filed at the same time. [Sighing] I will point out, even though Don McGahn is no longer a White House employee and ought to be represented in his individual capacity, his brief is of course being filed by the Assistant Attorney General, Joseph Hunt, and the Justice Department because the entire – you do remember, can we get a Thomas rant from when Bill Clinton talked to Loretta Lynch-
Thomas: Oh yeah!
Andrew: -for 13 seconds on the tarmac?
Thomas: [Yelling] They were on the same tarmac!
Thomas: Woah! Could’ve been 10 minutes! Who knows what international crimes they perpetrated in that time?!
Andrew: Yeah, the Department of Justice is not supposed to be the personal lawyers for the President and his lackeys. Don McGahn was supposed to be [Laughing] the lawyer for the President. He was White House counsel! This is wholly inappropriate and ridiculous and we’ve gotta get used to that.
Thomas: Well.. or not. Can we not get used to that?
Andrew: Or not, that’s also – not get used to it is a really, really good point.
Andrew: Here’s what the Court was thinking, the Court was thinking part of the reasons for issuing the subpoena to McGahn in the first place was to gather information about the impeachment process. Now we’ve had articles of impeachment voted out, do you still need McGahn’s testimony? I’m actually gonna let McGahn’s lawyers make the correct argument here so that we understand it.
[Laughing] McGahn’s lawyers say – and this is kind of weird that everybody has uploaded what the House Committee on the Judiciary has said, but nobody has really uploaded what McGahn has said so we’re gonna do that.
Andrew: McGahn, by and through the Assistant Attorney General, Joseph Hunt, says, “The articles of impeachment adopted by the House of Representatives do not render this case moot. In its complaint, the committee alleged that wholly apart from impeachment proceedings, McGahn’s testimony would assist the committee in (quote) ‘assessing the need for remedial legislation and to conduct oversight’ (end of quote). Whether or not that allegation is correct on the merits” (and obviously their argument is that it isn’t) “it survives the House’s impeachment vote and thus the suit is not moot, which also renders irrelevant whether or not the subpoena was ever validly justified by the House’s impeachment power in the first place.”
By the way, these briefs were filed simultaneously, that is almost word for word what House counsel says as well.
Thomas: Okay, pretend I’m not a lawyer and I didn’t totally follow that.
Thomas: Can you put it in Andrew-ese for us?
Andrew: Yeah, here’s the way to put it in plain English. When the House Judiciary Committee sent a subpoena to Don McGahn it did so for a number of reasons. One of them was to gather information in connection with the impeachment inquiry, but one of them was to gather information in connection with understanding the alleged corruption taking place in the Trump White House in order to conduct oversight and to inform the House as to future potential legislation. Right?
Andrew: As the House notes in its brief, you can want a guy for more than one thing.
Andrew: So here, let’s quote directly from their brief. So this is page 9 of the House brief at the bottom. “That the Committee’s investigation into Presidential misconduct serves multiple Article I functions” (those are the oversight functions of the House of Representatives) “simultaneously is unremarkable. The Committee’s investigatory power is broad,” (and these are all, this is backed up by case citations I’m just not reading them) “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes, and comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”
Then this is the narrative part. “In response to Watergate—a close historical analogue—Congress likewise amended and enacted multiple laws that addressed the conduct of Executive Branch officials and sought to reform errant agency processes.” So I realize that you asked me to put this in plain English-
Andrew: -and then I started quoting from a brief again! But here’s what all of that means. I went from Andrew to semi-plain English, now I’m gonna go to plain English.
Thomas: Okay, several steps to the translation. That’s fair.
Andrew: Yeah, yeah. The House subpoenaed McGahn and it subpoenaed McGahn for information that can serve multiple purposes at the same time and historically that’s always the case. When we were investigating Nixon’s corruption what the House wanted to do was gather information about impeaching the President and also hopefully put laws into place to make sure we didn’t get a Nixon again. That last one, I would argue we had sort of mixed results on that…
Thomas: We had a good run! [Laughs]
Andrew: Yeah, it was not a bad … 35 years. 45 years. So that’s the justification, look the fact that these impeachment articles have been transmitted doesn’t mean we still don’t want McGahn’s testimony. Then here’s the single paragraph, this comes from the top of page 7 that got all the headlines. Again, I wanna say, this is just a narrative passage. This doesn’t have any citations to any authority, it’s not part of the legal argument, it’s not the main thrust of the legal argument, it just seems to me to be an obvious statement of fact.
(Quote) “McGahn’s testimony also remains central to the Committee’s ongoing inquiry into the President’s obstructive conduct. If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly—including, if necessary, by considering whether to recommend new articles of impeachment. The Committee’s interest in obtaining McGahn’s testimony pursuant to its ongoing impeachment investigations plainly suffices to preserve a live case or controversy.” Again, that’s right.
So that’s what the entire hullabaloo was over, the Court said hey are we done here because there’s impeachment? And both parties said no, we are in fact not done here, it is still crucial. This case is set for oral argument on January 3rd, 2020.
Andrew: We, of course, record that show January 2nd, 2020. [Laughs]
Thomas: Ah, man!
Andrew: So, you know, we might be doing a special new broadcast in the new year, but this is coming to a head very, very quickly and I would not be surprised to see – the other issue at stake here, I’m not gonna get into it because we will know from oral argument whether it is significant or not – is the ongoing efforts by the Trump administration, nakedly, to delay this process as long as possible.
In fact the brief, I read the first paragraph of McGahn’s brief which says “no, it’s still a live case or controversy.” The rest of the brief, it’s only four pages, but nevertheless the rest of the brief is designed to say “but there’s absolutely no pressing need anymore.”
Andrew: So don’t hurry things along. It literally says-
Thomas: Sorry, I gotta take a week vacation, I wanna relax a little bit-
Thomas: No pressing need, eventually I’ll testify or whatever.
Andrew: It says “although the suit is not moot, the impeachment vote affects the extent to which expedited consideration remains necessary. The Committee” that means they’re now saying it was bad that the House Committee on the Judiciary opposed our request for a stay pending appeal because the delay would impair the House’s ongoing impeachment inquiry. “In doing so, the Committee stated that (quote) ‘speedy judicial action is needed to avoid hampering that investigation.’ That justification no longer applies.” So there’s no need for any additional expedition of this case, and literally the decision all but says noo, take your time!
Thomas: Yeah. If you’re reading this, read it slower.
Andrew: Yeah! 2021? Or 2025? That might be a great time for you to address this. It’s pretty transparent, but I want you to put a pin in this pleading because as we talk about the ongoing controversy in the main segment, about whether the President has [Laughing] actually been impeached, I want to point out something I think no one else has noticed which is the degree to which that discussion is out there, I believe, caused the Justice Department in the person of Assistant Attorney General Joe Hunt, to write something truly stupid in a brief.
Andrew: That everybody else has missed and the only reason to write it this way is because you are making sure that you’re not taking a position in a sworn court pleading that could be used against you later on in these discussions.
Andrew: So we’re gonna get that, but plug in that pin right now because we’re gonna come back to it, and it’s hilarious.
Andrew: So remember that.
Yodel Mountain Part 2 – Has the President Been Impeached?
Thomas: Alright so has the President been impeached? [Laughs]
Thomas: I thought I saw the vote, I mean we saw – the way I remember it Tulsi Gabbard stood apart from the crowd courageously voting “present” at the impeachment. So that’s how I know he was impeached, because there was a vote, right?
Andrew: So you might think, in the immediate – and when we say the immediate aftermath we mean an hour later as we discussed on this show at this time last week, there was the strategic decision made by Nancy Pelosi not to transmit the actual articles of impeachment from the House to the Senate and begin the trial process until there was agreement between the House and Senate as to those trial procedures.
We covered that last week in some detail, we’re gonna cover that in specific detail in light of the overarching case that is going to be cited by both sides on this case, which is a case called Nixon v. United States, we’ve referenced it before, 506 U.S. 224, it’s a 1993 case so you immediately know not Richard Nixon, former-
Thomas: Oh yeah! [Laughs]
Andrew: Yeah, former sitting judge Walter Nixon. Most of these cases come from instances of impeached and removed federal judges as opposed to Presidents because, you know, there haven’t been a lot of Presidents. So we’re gonna talk about Nixon v. U.S. and that’s gonna weave its way into the story of how, if John Roberts’ heart grows three sizes how he can save the Republic.
Andrew: I really want him to listen. I know he wants this to be part of his legacy, it is beautiful, it is perfect, and I actually think – we’re gonna take some creative licenses with that, but I think that the analysis I’m about to give you is actually part of what’s informing the fact that Mitch McConnell hasn’t just taken a hardline position immediately.
Andrew: So let’s untangle all of that. First – it’s related to sort of the back and forth. After Nancy Pelosi said I dunno that we’re gonna hand over the articles of impeachment until we get assurances that there will actually be a trial and not, as Laurence Tribe called it, a Potemkin trial in the Senate. That led Noah Feldman, one of the Democratic lawyers called to testify before the Senate Judiciary Committee on impeachment to write an article. He wrote an article in Bloomberg that says “Trump Isn’t Impeached Until the House Tells the Senate. According to the Constitution, impeachment is a process, not a vote.”
Andrew: Now he probably didn’t write that headline, just in some fairness to Professor Feldman. The thrust of Feldman’s argument is exactly what the headline says. So here I’m gonna quote him directly, “If the House votes to (quote) ‘impeach’ but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment.”
So Feldman’s argument is look, in a normal process you would say the House has voted to impeach and then in the normal course the articles get transmitted over and that sort of completes that transaction, but there has been an actual impeachment vote. But in the event of an infinite stalemate, Feldman’s article seems to suggest that Trump could claim “I was never really impeached.” That seems to be the gravamen of the argument.
Now, hilariously, in response to Feldman, the Democratic witness before the Senate Judiciary Committee seeming to say something that could potentially benefit Donald Trump, our friend [Laughing] Jonathan Turley, the sole Republican law professor called as a witness, wrote a response article saying … no. The impeachment was done when the vote was committed. Donald Trump has been impeached, he’s gonna have that asterisk next to his name for all eternity, there’s no invisible takesies-backsies, this didn’t all really happen.
I’m not gonna get into Turley’s article because – I think even Jonathan Turley would be okay with me saying this – also on the yes Trump has been impeached but the House still has the power to decide when to transmit the articles is Laurence Tribe and Laurence Tribe is the greatest living constitutional law scholar in America, so-
Thomas: Hmm. So that’s one vote. [Laughs]
Andrew: [Laughs] Exactly. I don’t really think – so I use that as kind of the teaser in for this segment because I know that Trump wants to preserve the right to say [Impersonation] “I was never really impeached.” That’s a stupid thing – and I’m gonna prove that in a second, that’s the pin. It’s a stupid thing to want to preserve, because Richard Nixon was never impeached! [Laughs]
Thomas: Yeah, and he went down as the greatest President that has no controversy just because of the technicality that he was never impeached.
Andrew: Right, exactly. It’s not like history is gonna forget. If Noah Feldman’s position is correct then everybody’s gonna be “oh yeah, Donald Trump, that’s the guy they’re adding up to the fifth spot on Mt. Rushmore.” Of course not! History will remember this as the darkest period in our nation’s history regardless of whether there was an impeachment vote or not. None of that matters. But the underlying question of exactly how much power does the Senate have over the rules or the lack thereof to try the case is really, really interesting. That’s what I wanna get to in the deep dive. But now I wanna go back and pull out that pin.
Thomas: Alright. Yoink!
Andrew: [Laughs] Here’s how I know [Laughs] Donald Trump really, really likes this argument because in McGahn’s brief the Assistant Attorney General takes pains not to say that Trump has been impeached. It says “after the House has adopted the articles of impeachment,” and then in the analytical section discussing why there’s no longer any pressing need to move forward, what the Assistant Attorney General won’t say is now that the President has been impeached (comma), –
Andrew: Because Donald Trump has ordered him not to say that! So here’s what he says: “Indeed, if this Court now were to resolve the merits question in this case,” and remember, that is whether Don McGahn has to testify, “it would appear to be weighing in on a contested issue in any impeachment trial.” [Laughs] In any impeachment trial is kind of a weird construction, but let’s keep going.
“That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has “traditionally thought to be capable of resolution through the judicial process.”
I want to leave aside, I laughed when I first read “any impeachment trial,” not just this one, who knows? But the idea that you’ve now been forced to weaken your prejudice argument to say political tensions are at their highest “before, during, or after a Senate trial regarding the removal of a President”-
Andrew: That’s literally all the time!
Thomas: Yeah, yeah!
Andrew: [Laughs] There is no time that is not before, during, or after the Senate’s trial of Donald Trump!
Thomas: Maybe like the Land Before Time, that’s the only thing I can think of.
Andrew: [Laughs] The singularity that proceeded the Big Bang?
Andrew: Other than that, that literally applies to a 13.7 billion year timespan. I do not know Joe Hunt personally, he was the bagman brought in at the very conclusion of the Department of Commerce cases regarding the citizenship question, he was the person on the call who advised the judge that the President was still considering whether to pursue the citizenship question by other means despite having been told not to do that by the Supreme Court, so yeah, he’s been Trump’s hatchet man on indefensible positions in the past. I don’t think any lawyer would write a sentence that dumb [Laughing] without being told to do so by somebody much dumber than them.
Andrew: And the most likely culprit there is the, you know, person occupying the Oval Office. So I think this means a lot to Trump. It doesn’t mean anything to me what we call it for the reasons that we just described, but what does mean a lot to me is how much power Mitch McConnell has over the rules. I’ve always said I think they are very, very broad and I continue to take that position.
You are about to hear, and I think probably contemporaneously with this episode, the intellectual arm of the right wing, the Federalist Society, the Trump sympathizers at the National Review never minding that Ramesh Ponnuru wrote a cover page article for the National Review saying Trump should be impeached. His defenders in conservative intellectual circles are about to make an argument and I want to tell you this is not a bad faith argument, it’s not a terrible argument, it’s probably a winning argument.
Andrew: Not just that Mitch McConnell has broad powers to do whatever he wants in the Senate but that his powers are plenary, that they are absolute, that they are non-reviewable by the Supreme Court. Now there is a counterargument. The counterargument is common sense, correct, supported by the decision and I was initially gonna call this “how to write a losing Supreme Court brief with Opening Arguments” but I actually think there’s a “one weird trick.”
Thomas: Oooh! Well I think that calls-
Andrew: And I’m gonna navigate us all the way through that.
Thomas: -for a cliffhanger.
Andrew: [Laughs] Ah man, you know if you’re a patron you don’t have cliffhangers.
Thomas: You just got an elevator right up that cliff.
Andrew: Yup! [Laughs]
Thomas: No, you watch Sylvester Stallone and I wanna say the guy from 3rd Rock from the Sun, isn’t he in that movie? Cliffhanger? This is an 80s, this is your wheelhouse.
Andrew: It should be, but- Oh, Jonathan Lithgow, that’s right.
Thomas: Yeah, John Lithgow, you just take an elevator right up that cliff. Patrons are like hmm, easy cliff, not even hanging.
Andrew: Yeah! I thought you said Sylvester Stallone and I thought this was gonna be another Judge Dredd reference.
Thomas: [Impersonation] I am the laaaw! Alright, let’s take a quick break on that cliffhanger, find out what the “one weird trick” is right after this!
[Commercial – vistaprint.com promo code “OA”]
Yodel Mountain Part 3 – This One Weird Trick
Thomas: Okay. Just here hangin’! Bail me out, what’s the “one weird trick?”
Andrew: Alright so this goes back to Nixon v. U.S. and here was the situation. Walter Nixon was a sitting United States District Court judge. He was in the Southern District of Mississippi. Because he was a judge and not the President he was indicted while he was in office, he was convicted by a jury of two counts of making false statements before a federal grand jury, those two counts had to do with him accepting bribes in exchange for political favors. So you know, not dissimilar to where we are right now. And he was convicted, he was sent to prison.
But – and here I’m going to read rather dryly from the Supreme Court opinion: (quote) “Because Nixon refused to resign from his office as a United States District Judge, he continued to collect his judicial salary while serving out his prison sentence.” (End of quote).
Thomas: [Laughs] Wow, did he get it in cigarettes or…
Andrew: [Laughs] So as you might imagine that didn’t sit well with the House of Representatives, who in 1989 adopted three articles of impeachment against Nixon for high crimes and misdemeanors. The first two – and again, we’re just continuing to illustrate that high crimes and misdemeanors does not mean being charged, necessarily, being charged with something that is in the U.S. criminal code, but again, more proof. Nixon’s articles of impeachment were two counts of giving false testimony and one count of bringing disrepute on the federal judiciary.
Then the House transmitted those articles over to the Senate and the Senate used what it calls Rule 11. Under Rule 11 for impeaching federal judges what the Senate does is they create a subcommittee and the subcommittee is where the trial takes place. I’ll link to the Senate Rules Manual in the show notes, this is page 164 of the Senate Rules.
Rule 11 then says look, we’re not gonna stop doing the business of the Senate just ‘cuz some judge from Mississippi gets impeached, we’re gonna delegate that to a committee, the committee’s gonna hear all the testimony – and here they had four days of hearings and heard from 10 different witnesses including Nixon himself. Then the committee is gonna present a report on its findings and then the entire Senate will vote up or down on the basis of what the committee decides. Makes sense?
Andrew: That’s what happened here, so the Senate then voted 88-10 after hearing the Senate Judiciary subcommittee, the special committee that actually heard the trial, they published their report and then the full Senate voted by more than 2/3 to remove Walter Nixon from office.
Then Nixon filed a lawsuit in the U.S. District Court for the District of Columbia. What he said was the constitution says that the Senate will (quote) “try” (end quote) all impeachments and the Senate didn’t try it here. He said look, I didn’t get a trial before the whole Senate.
Andrew: My trial was before this committee and all almost the entire Senate heard was the summary from the committee, they didn’t get to hear me. They didn’t get to hear my witnesses, I didn’t have a trial. That doesn’t seem like a ridiculous argument to make in Court, to say it’s supposed to be tried by the Senate, this wasn’t tried by the Senate.
Andrew: This was tried by a subcommittee, yup. So long story short, the courts said no. Said this is a nonjusticiable political question.
Andrew: And that was my gut instinct, it’s what I’ve said all along. We are not gonna intervene in the decision by the Senate to second guess what their rules are. We’re gonna say this is a political question and we as the courts lack jurisdiction to hear it and that’s what they decided in the Nixon court. So they said yeah, we don’t know if Senate Rule 11 complies with the requirement that the Senate (quote) “try all impeachments” because we don’t get to say what the Senate can do. That’s the holding of Nixon v. U.S. and you are going to hear it cited by proponents of the President in favor of Mitch McConnell doing whatever the hell it is that he wants in the Senate impeachment case.
In fact, I’m going to give you the precise language from the Rehnquist opinion that the Federalist Society is going to seize on. It is going to seize on the fact that the word “try” is in the specific constitutional grant to the Senate.
Andrew: The Senate shall have the sole power to try all impeachments and in Nixon v. U.S. the Supreme Court said the word “try” in the impeachment trial clause does not provide (quote) “an identifiable textual limit on the authority which is committed to the Senate” (end quote).
Andrew: So that’s what they’re gonna say! They’re gonna say yup, Mitch McConnell can say, I define a trial as flipping a coin, or rock paper scissors, or-
Thomas: I mean I’ll take those odds, really? Because that’s way better odds than-
Andrew: Oh yeah, no, absolutely-
Thomas: -the odds that are actually there? Which is zero.
Andrew: Yeah, correct. Or if you have an “R” after your name than you’re automatically acquitted! There’s any number of preposterously terrible methods that we could envision Mitch McConnell using and it’s probably worse than what he’s actually thinking of right now.
In light of the fact that that’s the holding of Nixon v. U.S., I wanted us to write the losing Supreme Court brief. I wanted to say okay, that seems to be the holding, in what way would you argue that this doesn’t imply to an impeachment of a President? And there are, actually, a couple of good arguments as to why it doesn’t apply. The first is that the majority’s holding, the Rehnquist holding in Nixon v. U.S. draws its force from the notion of separation of powers. In the Nixon case the idea is that because you’re talking about a sitting judge, you’re taking a question about oversight of the judiciary and subjecting it to an ultimate yes, no sign off from the judiciary!
Andrew: That seems to conflate the notion of separation of powers. Does that make sense?
Andrew: Yeah, and that is – by the way – the major outside of the textual argument that is the major argument that is advanced in the majority’s holding which says look, the reason why this word “try” does not give us oversight is because our ability to come back and second guess what the Senate does essentially means we can put the thumb on our scale for our buddies and we shouldn’t be able to do that, that runs contrary to the notion of separation of powers.
So the primary argument that I would make leading off an argument about whether Nixon v. U.S. applies not to the impeachment of a sitting Article 3 judge but a sitting President is that the entire justificatory force for the reasoning behind Nixon v. U.S. was separation of powers and that applies in force when you are talking about the President not about a sitting judge, because saying yeah, that’s what we want here is we want to prevent a Senate from openly colluding with a President of their same party to then insulate him from any scrutiny.
In fact, that is what the various concurrences to the Nixon case seem to contemplate. It’s really kind of eerily prescient! [Laughs]
Andrew: So Justice Stevens’ concurrence, for example, says – so the point behind the concurrences is this. The Supreme Court, nine to nothing, said we’re not going to hear anything regarding Judge Nixon’s challenge to how he was treated in the Senate. It’s a nonjusticiable, political question, you get no relief, sorry. You get nothing.
Thomas: And I assume the lower courts – so the end result was whatever the lower courts said, I assume?
Andrew: Yeah, that’s right. Was to remand back to the lower court with directions to dismiss the case for failure to state a cause of action, being nonjusticiable.
Andrew: And as you point out, the fact that you point that out is really interesting because there was a separate case involving Judge Alcee Hastings that was pending at the same time raising the same challenge. In that court in that case the District Court was very sympathetic to Hastings, felt as though he’d been railroaded and the reason why – on this sidebar, the reason why [Laughs] was because there were serious questions about whether the full Senate ever reached a 2/3 vote on the articles of impeachment that were approved out by the Rule 11 subcommittee. If the listeners want us to do a deep dive on the Alcee Hastings case maybe we will.
Andrew: It’s a really, really interesting situation. So the District Court was like, essentially, thought of this like an incoming McConnell, was like look, you can’t. I get it, maybe it’s okay to try him in the subcommittee but 2/3 is written right there in the constitution! 2/3 has got to mean 2/3. That case was stayed pending the Supreme Court’s decision in Nixon and when the Supreme Court ruled nonjusticiable in Nixon the trial court judge wrote an opinion and said “this is really, really bad, I think that Judge Hastings was railroaded here, I think this was terrible, but the Supreme Court says it’s nonjusticiable so I can’t do anything about it so I’m dismissing this out.”
Now, with that in mind, remember that the holding of a case, where it has precedential effect is as narrow as possible. So it is not the case, because Nixon v. U.S. was about the impeachment of an Article 3 judge and not the President of the United States, it is not the case that it is binding preclusive precedent. It’s about a judge not a President. Now it’s very, very, very persuasive, because most of the same principles are in play including the same clause in the constitution that grants the authority to the senate, the sole authority to try all impeachments. That is Article 1, Section 3, Clause 6, “The Senate shall have the sole Power to try all Impeachments.”
So this case is very, very instructive, but you can nevertheless argue that it should be distinguished. Some of the reasons you would argue that it should be distinguished are the very reasons contemplated by the concurrences. So now that I’ve done that sidebar let’s go back to those concurrences. Justice Stevens writes [Laughs] and this is just amazingly prescient, here’s what he says:
“It should be said at the outset that, as a practical matter, it will likely make little difference whether the Court’s or my view controls this case. This is so because the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. Even taking a wholly practical approach, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to ‘try’ impeachment cases.” (And then goes into the testimony, the oral argument) “When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being ‘a bad guy,’” [Laughs]
Andrew: – “counsel for the United States answered that the Government’s theory ‘leads me to answer that question yes.’ Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process.”
Now again, there’s a little bit of legalese there but essentially what justice Stevens was saying is if we say that anything regarding impeachment is nonjusticiable, if we give up our right to define what the term “try” means, then we’re extending an open invitation for the Senate to just rubber stamp crazy stuff, which is why I thought that was [Sighs] eerily prescient.
Andrew: Again, that is a solid reason to distinguish out and to say Nixon means that it is a nonjusticiable political question with respect to the procedures used to try article 3 judges, but not with respect to the sitting President of the United States. In other words, that the President is different. The rest of the concurrences, I think, strongly support the notion that the President is different.
In fact, the Souter notes that one of the specific limitations of impeachment is that when the President is tried the Chief Justice shall preside. So throw out this hypothetical: Suppose Mitch McConnell says not only, no we’re not gonna have any witnesses and you know what? John Roberts you don’t even have to show up.
Thomas: You would hope somebody could justish that.
Andrew: You would think! That’s exactly right!
Thomas: Probably not exactly right… [Laughs]
Andrew: As the Souter concurrence points out, that’s really no different and no harder to understand than saying you have to try. It says that the Chief Justice has to preside. Well that means that at some level, if Mitch McConnell says nope he’s not going to, either that must be reviewable or that requirement ought not to be in the constitution at all.
Thomas: Yeah, I’m wondering if it makes sense to say this is nonjusticiable just because the subject is a judge. Because I get the idea that it’s, okay, separation of powers, we don’t wanna be adjudicating the rules that are subject to us, but isn’t this all just the same clause in the constitution?
Andrew: It is. Yeah.
Thomas: So for the rules to be one way when it’s anybody but a judge and then the other way when it’s a judge, I dunno, it feels like they could have done in the Nixon decision, it seems like they maybe could’ve approached it from the angle of “okay, well what if this was a President how would we feel?” and then the same rules apply or something. I dunno if that would make sense legally but it does seem weird. Like it shouldn’t be oh you’re impeaching and trying a judge? Well whatever you want, can’t stop you. Oh what it’s a President? Okay, here are all the rules, we’ll enforce all the rules. Seems weird.
Andrew: I agree with you that it seems weird, and if I were on the Supreme Court I would be in favor of-
Thomas: Some day.
Andrew: -clarifying, effectively overruling, Nixon v. U.S.. However, here’s why we need the weird argument and that was I think the perfect way to transition to the Grinch story. So here’s our story: Mitch McConnell decides over the holidays – so here’s what we know is actually happening. Mitch McConnell and Chuck Schumer as we are speaking are trying to negotiate the rules that will govern the Senate trial in order to break the stalemate and transmit the articles of impeachment from the House to the Senate.
I’m actually somewhat optimistic that they will reach agreement on that.
Andrew: For a lot of reasons that I guess we don’t have time to get into right here, but I have some optimism about that. But let’s assume the darkest possible timeline, let’s assume Mitch McConnell Mitch McConnell’s this in the same way that he stole a Supreme Court seat and says okay, we actually have decided that I’m gonna unilaterally declare the rules now, there will be no House managers, the articles are deemed transmitted as of my coming out and saying this, and we’re gonna take a preliminary vote, all those in favor of not guilty say “aye,” the ayes have it, impeachment’s over.
Thomas: Sounds realistic.
Andrew: Yup, that’s the nightmare scenario. Here’s what would happen. The House Judiciary Committee would go to the United States District Court for the District of Columbia and they would file a lawsuit seeking an injunction to require the Senate to do something. It would say hey, you’ve gotta strike down this and you’ve gotta order them to actually have a trial. That trial court is going to have to wrestle with the fact that obviously they want to issue the relief, that this is completely tearing up the constitution, it makes a mockery of the fact that the Senate “shall try.”
The House has the sole power of impeachment, the Senate has to try, and if we define “try” as not having a trial than why don’t we define 2/3 as 7 or-
Andrew: -why don’t we define the President as a turkey? Who the hell knows, everything’s up for grabs, nothing means anything. That District Court is going to need to square that, all of that, with Nixon v. U.S. In other words the District Court is gonna have to say, assuming Nixon v. U.S. is good law this nevertheless fits within an exception, it doesn’t control in this case for this reason, which is why I went through the effort of sort of squaring the circle. I agree with you in the abstract, Nixon v. U.S., really really strong binding argument.
Then that case will get appealed to the United States Court of Appeals for the D.C. Circuit and it is not hard to imagine the D.C. Circuit affirming and saying yeah, notwithstanding Nixon v. U.S. you have to conduct something that resembles a trial. There’s a lot of dicta from a lot of cases that supports that position. Says look, I get it, we see Nixon but Nixon was about a judge, wasn’t about the President, doesn’t forbid us from saying that this clause has to mean something, that it is not absolutely unreviewable in cases involving the President and especially allegations of collusion between the President and the Senate.
Now you’re left with okay, but we’ve written this brief and the President’s gonna appeal that to the Supreme Court, right? And the Supreme Court is gonna intervene and 5-4 rule in favor of Trump and it all goes away … unless the following happens, and I find this not implausible. That is John Roberts sits as the presiding officer in impeachment.
Thomas: Ooooh! Does he have to recuse himself?
Andrew: It’s the next sentence. I believe that he has to recuse himself. Moreover I believe that he will recuse himself.
Andrew: I think if the institutional thesis means anything it means that John Roberts will not rule in a case in which he personally was deprived of the opportunity to exercise his constitutional function. That’s the very definition of having an interest at stake, and if John Roberts recuses himself then the vote at the Supreme Court will be 4-4.
Thomas: It will be howler monkeys versus four non-howler monkeys.
Andrew: And a 4-4 split at the Supreme Court means the lower court’s decision stands.
Thomas: But aren’t the lower courts all ruined by the fact that McConnell has stacked them with Trump-
Andrew: The D.C. Circuit remains one of the most-
Thomas: Not terrible?
Andrew: Remains one of the most liberal Circuit Courts of Appeal in the country. It trails the 9th Circuit but it still has a majority of Democratic appointees. Neomi Rao is on there now and uck, but by and large – look, again, we have Sri Srinivasan and Merrick Garland are by no means crazy leftists, it is an on the whole, the reason why the D.C. Circuit is thought of as sort of the minor leagues for the Supreme Court is that typically to get there you have to have tremendous brain power in addition to everything else.
Again [Sighs] those standards have been tossed out the window by the Trump administration, but he has not taken over the D.C. Circuit. Even if you draw a bad panel the D.C. Circuit, 100% in cases like this, would vote to re-hear en banc.
Andrew: So I think, right now – the point of all of this is not even all of the potential scenarios. I think Mitch McConnell’s lawyers have told him there is a real chance that the ultimate decision could be made in any case involving your rules by the D.C. Circuit and not by your handpicked Supreme Court. I think he knows that and I think it’s what he’s scared of.
Thomas: Huh! A Christmas miracle, this one weird trick everyone!
Thomas: Boys and girls around the world, the joy of this one weird trick!
Andrew: So. Nixon v. U.S. is coming.
Thomas: So the result of all of this is you think it will have an influence on McConnell’s behavior. Do you see all of this situation and scenario as likely to happen? Or are you just saying it’s kind of informing what’s going on.
Andrew: I think it is informing McConnell from not just plowing full speed ahead, I don’t care I can do whatever I want. I think we’ve gotten some signals of that already. You saw, when it came to stealing Merrick Garland’s Supreme Court seat, Mitch McConnell was 100% shameless. He said no, not holding the hearings, not gonna do it, not gonna talk about it, make me. That’s where he knew he was on 100% solid footing, unfortunately enough, that nobody was gonna make him do it.
He hasn’t taken that approach with respect to the impeachment rules and the fact that he hasn’t taken that approach leads me to believe somebody’s told him something like this.
Andrew: Again, I don’t wanna be-
Thomas: I was gonna say, I hate to Grinch this up but I think that just means that what we’ll get is a pretty speedy acquittal in the Senate, right?
Andrew: I agree.
Thomas: [Laughing] Best case scenario is that he’ll be like alright, go on through the motions, John Roberts has got his costume on to be in charge of this whole thing and anyway, vote to acquit and done.
Andrew: Yeah, I don’t disagree with that.
Thomas: But I appreciate you trying to bring cheer [Laughing] to this holiday season!
Thomas: That was a lot of work to try to get a tiny semblance of joy out of this.
Andrew: As long as there’s hope, that’s what I’m looking for, so there you go.
Thomas: Alright, plus we all know that Mitt Romney’s gonna save us, so it’s all… I’m ready to try and kick that football again.
Andrew: [Laughs] Yeah, right. We have been smacking down on social media, there was a super overly optimistic article in the Washington Post about how the Senate is gonna be scared of overruling John Roberts when he makes a decision because again on procedural issues John Roberts gets to preside but the Senate can by majority vote overrule any of his rulings. So if Roberts says yeah I’m gonna allow that, McConnell can call for a procedural vote and then on a party line they can be like yeah, no, we’re not going to.
Thomas: Wow, that’s meaningless.
Andrew: Yeah, and the idea that oh, they’ll be – the Republicans are gonna be so nervous about overruling Roberts? Not in the least. So look, there’s plenty of bad here, but it’s Christmastime Thomas!
Andrew: I’m not gonna focus on the bad!
Thomas: I do appreciate the effort, thank you for trying.
Andrew: Look it is important to me that institutions exist and norms have meaning so there we go.
Thomas: I agree. Alright, well, Merry Christmas everyone.
Andrew: Yeah, happy holidays!
Thomas: [Laughs] Alright well normally we’d be thanking our new patrons but since it’s Christmas Andrew and I have had to record early so we haven’t had time to gain any new patrons but maybe that could be you next week. We’ll do new patrons, we’ll catch up on everybody next week. So catch it then, which means we can go straight to Thomas Takes the Bar Exam which I think I’m on at least a one question streak, if not maybe a two question streak!
Andrew: You are on a two question streak!
Thomas: Oh my gosh!
T3BE – Question
Thomas: Well in the Christmas spirit you’re definitely gonna give me a freebie, right? None of this real property, hearsay. A hearsay real property-
Andrew: [Laughing] I was gonna say, what counts as a freebie for you, Thomas? I just wanna know.
Andrew: [Laughs] Alright Thomas, I have another Christmas miracle for you because this question is about-
Thomas: Accounting related!
Andrew: About an accounting firm! I mean come on!
Thomas: That’s as close to a freebie as we can get! Maybe I should believe in the Christmas spirit or something, I dunno.
Andrew: [Laughs] Alright here we go. Anyway, she was fired and she was told to immediately leave the building where she worked. The executive went home, but returned that night to retrieve personal items from her office.
Andrew: When she discovered that her key no longer opened a door to the building, she forced the door open and went to her former office.
Andrew: To avoid attracting attention, she did not turn on any of the lights. In the dark, she knew that she was taking some items that were not hers-
Andrew: -and she planned to sort these out later and return them.
Thomas: I love this question!
Andrew: Yeah! Upon arriving home, she found that she had taken a record book and some financial papers that belonged to the firm. After thinking it over and becoming angrier over being fired, she burned the book and papers in her fireplace. [Laughs]
Andrew: The jurisdiction has expanded the crime of burglary to include all buildings.
Thomas: What the? Are there some buildings in some jurisdictions that are like freebies?
Thomas: Anything in here you can burgle and no charge!
Andrew: [Laughs] I can’t answer that-
Andrew: -but I can ask you, Thomas, what crime(s) has the executive committed?
Thomas: Ah jeez. So just to be clear the question is crime with a parentheses around the “s” so we could be talking no crimes or a thousand crimes? Alright, here we go!
Andrew: Exactly. But really we just have a Punnett square of four. A) Burglary and larceny;
Thomas: Oh jeez.
Andrew: B) Burglary, but not larceny; C) Larceny, but not burglary; or D) Nothing.
Thomas: D, nothing, final answer! No I’m just kidding! [Laughs]
Andrew: I should read the actual, which is “Neither larceny nor burglary,” because there are other crimes that she could be charged with.
Andrew: But yeah, neither larceny nor burglary, I take back my attempt at humor.
Thomas: [Laughs] Brian, save that for all time! Whenever Andrew makes a bad joke we need to keep “I take back my attempt at humor.”
Thomas: No I would need that dropped far more than you would. Okay, well, jeez. I know we’ve been through it and listeners are gonna be so mad at me for not being able to proper remember the difference between burglary and larceny, but I think I remember. I think I remember burglary involving a component of force, I thought. Now what’s unclear to me is would that count? Because I’m pretty sure forcing the door open, I think would count? Is that? Because if I’m not home and somebody breaks down my door and steals my TV I feel like they’re guilty of burglary. Literally you would call them a burglar. Like the Hamburglar, what does he do?
Thomas: That actually implies that he’s pretty forceful, maybe he kills people, that Hamburglar. Now that I think about it, that’s a kids toy, that means he beats people up and takes their hamburgers! Or maybe he just breaks down the door and steals hamburgers for the kid version.
So larceny is like you just try on the watch in the jewelry store and just walk away with it, I thought, something like that where you’re larsening, you’re larsing. Doesn’t involve force. But I still feel like the breaking the door open could still be that? This is tough!
Okay. A, burglary and larceny. I certainly see a case for A just because you forced the door and also you made off with some stuff unintentionally that you ended up destroying so I feel like that’s probably larceny, I think? Maybe? So I could see an argument for A, that’s plausible.
B, burglary but not larceny. Okay so how would that – that would be interesting, so that would mean you got the force in the door I assume, forcing the door open would be the burglary part, but not larceny. Would that be… she had taken a record book and some … Hmm. I don’t know about that. Is it even possible to have burglary without larceny? Is it one of those like assault and battery kind of thing where you usually have both every time? I dunno. B seems tough to me, maybe.
C, larceny but not burglary. So that would be – C would be like if the forcing the door isn’t enough force and it’s just she’s trying to take home her own stuff but took home some other stuff so therefore that’s the larceny part, so maybe C? Maybe? I could see C.
D, neither larceny nor burglary. [Sighs] I mean that’s not impossible, like you were saying. That would mean there’s some other crime like improperly destroying documents that don’t belong to you that you didn’t burgle or larcen. I don’t know what that would be, but not impossible. I’m not leaning toward that because I do think, you know, she would – they locked her out, they changed her key for a reason, you know? [Laughs] And she forced the door open, that seems like burglary to me, but also it seems like larceny in that she ended up with the stuff, she didn’t really – there was also some stuff where there wasn’t a force component. Well actually – man, I don’t know! Maybe it’s all burglary?
Okay, to avoid attracting attention, she did not turn on any lights. In the dark, she knew she was taking some items that were not hers; [Sighs] she planned to sort – this is so hard! I dunno. This is not a very Christmas [Laughs] Andrew, this was – you’re a real Scrooge with this question! I hope some ghosts visit you, give me some easier – no it’s okay, I’ve gotta play the game.
After thinking it over and becoming angrier over being fired, she burned the book and papers in her fireplace. Gosh! I could almost see D being some weirdly thing answer because she didn’t really mean to do this and then she’s just guilty of destroying someone else’s property or somehow? [Sighs]
Alright, I’m gonna go with my initial instinct that forcing the door has gotta be burglary because if I’m not home and someone forces the door and takes my TV they’re a burglar, and if they take my hamburgers they’re a Hamburglar. Is there a Cheeseburglar too? There should have been. [Laughs]
Thomas: Like the same costume-
Andrew: I feel like all the Hamburglar stuff you should be doing in your Norm MacDonald voice, but-
Thomas: [Laughs] Isn’t that just my voice? Yeah.
Andrew: [Laughs] Yeah.
Thomas: And I’m gonna go ahead – [Sighs] it’s the intent part that’s weird to me because she’s meaning to take her own stuff. Larceny… Ugh! I could almost see it all as burglary but not larceny, you know? I’ll tell you what, I’m kind of between … [Sighs] well, all of them. [Laughs] I’m kind of between A, B, C, D and actually E. There’s an E answer that I can’t decide on, I haven’t even narrowed it down I’ve actually added an answer! Um, no I’m kind of between – I could kind of see it all being burglary. Well? [Sighs] Or all being larceny. Andrew I don’t know! Lifeline! Ummm…
Look, in the combination of all of these things that she’s doing, alright she’s done a ton of different stuff, there’s the forcing the door open, she’s ended up with documents, I’m just gonna go A, burglary and larceny and I really don’t have any confidence in that but I don’t wanna – it’s kind of a safe answer that will end up being wrong? [Laughs] I’m gonna go A, final answer.
Andrew: Alright and if you wanna join Thomas in this holiday T3BE you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, we will pick one winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Oh wait, is it breaking and entering? Is that a crime that it’s – so it’s just breaking and entering and then also larceny? Oh man, it could be C… oh, whatever, I already got it wrong. Alright well thanks for playing everybody and listening to me get this impossible question wrong, but play along and get it right and get a shout out, all that stuff. Happy holidays everybody! Thanks for listening, thanks most of all to our patrons and we will see you all on, what, New Year’s Eve I guess? That’s the thing with these holidays, they’re exactly a week apart!
Thomas: So see you then everybody!