Transcript of OA347: Pennhurst and the Voter Purge in Georgia

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 347, I’m Thomas, that’s Andrew.  How’re you doin’ Andrew?

Andrew:         I am fantastic, Thomas, how are you?  Did you have a good holiday?

Thomas:         Okay, I’ll bite.  What day is it?

Andrew:         [Laughs]  

Thomas:         I don’t – I have no idea.  We’re recording so I guess we both must think it’s Thursday to some extent, right?  But is it Thursday?

Andrew:         [Laughs]  

Thomas:         My kids were home yesterday, doesn’t that mean it’s Monday?  I don’t [Sighs]

Andrew:         I think “what day of the week is it?” is gonna replace “I keep writing 2019 on my checks”

Thomas:         [Laughs]  

Andrew:         Because nobody writes any checks anymore.

Thomas:         Yeah, I keep writing checks on my credit card things that I pay online.  Yeah, it’s not really checks anymore.  [Laughs]  

Andrew:         [Laughs]  [Sighs] Well happy new year, Thomas!

Thomas:         If you say so!  I don’t – when are we right now?  I dunno.  It is really disorienting, I have come to realize as much as I do love my kids and the holidays and everything that it’s a real different experience from the other end of things as a parent.  Holidays as a kid is oh my god, no school!  We’re staying home, party time it’s the best, it’s Christmas cheer, it’s all that. 

As a parent who works at home it just means [Laughs]  just nonstop work as in raising and watching over a two year old, which is just an adventure, and also they’re home at weird times and there’s not daycare so I’m disoriented and don’t get any time that I think I have, so it’s a whole different thing, being a parent at holidays, but you know what?  I love it and I had a great time.  How were your holidays, Andrew?

Andrew:         Oh, yeah, no they were fantastic!  So my family was in town and, you know, you’re totally right on the different perspective of child versus adult.  I think folks know this, I know you know this, but I live next door to my sister which is super cool and my sister is slightly neater than I am in terms of maintaining the house, so when my parents come to visit – and she takes after our mother on that – so we’ve all kind of decided it’s best that my parents stay next door instead of in my house.

Thomas:         [Laughs]  

Andrew:         Because, you know?

Thomas:         As long as you’re all on the same page about it! [Laughs]  

Andrew:         We’re all on the same page on that, so it’s great!  So I get to see a lot of my parents, which I did, and we get to hang out and they don’t get to [Laughing] criticize the fact that my house maybe isn’t up to snuff.

Thomas:         I think the sitcom version of that is you actually are way neater but this one time of the year you have to pretend to be messy in order to not – no, that’s the sitcom version, I know you love your parents and would have them stay-

Andrew:         Ooh, yeah. 

Thomas:         Alright well we are back at it!  I mean, we didn’t miss any days or anything, but it feels like – I don’t even know!  I’m so disoriented, but we’re back, the holidays are over, it’s a new – it’s 2020 Andrew!  Did you hear about that?

Andrew:         I did hear about that.

Thomas:         The year changed!

Andrew:         Yeah!

Thomas:         And we’re gonna talk about the meme going around that you need to make sure to write out the full year on what, paper?  On anything, because a gremlin could come in-

Andrew:         [Laughs]  

Thomas:         -and fill in the end of the year with anything they want!  So that’s a meme that’s going around and I love – these are actually kind of my favorite segments when Andrew responds to the Facebook meme that went around forever, for like ten years that was like “I hereby order you, Facebook, that nobody can do my photos” or whatever.  I love when we get Andrew, a real life lawyer, to respond to what is probably viral garbage.  That’s something I really like on this show.

Also news that Alex Jones has to pay out $100,000 in the lawsuit recently so we’re gonna hear a little update on that, we have litigation against Trump, there’s all kinds of cases that Andrew’s gonna bring us up to speed on and finally – I hope this is not a Wild Card segment because I do really wanna hear about the Stacey Abrams lawsuit.

Andrew:         [Laughs]  

Thomas:         So we’ll see, but you know, we’ll see what we get to.

Andrew:         Not a Wild Card!  We’re gonna get there.

Thomas:         Not a Wild Card, we’re gonna do it!  It’s our New Years’ Resolution!

Andrew:         There you go!

Thomas:         We’re gonna get to that segment.

Andrew:         Fewer Wild Cards is my new New Years’ Resolution.

Thomas:         No just this one.  Just literally this one episode.  I’m a fan of very attainable New Years’ Resolutions!

Andrew:         [Laughs]  

Thomas:         And then we say we’re done with it.

Andrew:         That’s my Resolution, to lose three and a half pounds in 2020. 

Thomas:         [Laughs]  Yeah, or even one and then you can brag and be like, yeah, I stuck to mine.

Andrew:         I’m crushing my weight loss goals for 2020, yeah!

Thomas:         [Laughs]  Alright, here we go.

Alex Jones Lawsuit Update

[Segment Intro]

Thomas:         Let’s talk about Alex Jones.  What happened?  I saw that he was potentially ordered to pay $100,000 which, you know, is a start?  [Laughs]  

Andrew:         Yeah, so let me be really, really clear on this and why we’re doing it as a sort of pre-show segment.  This lawsuit is pending in Travis County District Court, in State Court, in Texas.  Those documents are not digitized, they are not electronically filed, they are not available online, I cannot see them.  So what I can do is parse through the reporting and the reporting is this is essentially a Discovery sanction.  This is-

Thomas:         Huh.

Andrew:         The text of the order from the reporter who has seen it that I have to trust, you know, it’s the New York Times, it’s not fake news or anything, says that the order (quote) “should be treated as a contempt order” (end of quote) and this is part of the inherent power that both State and federal court judges have to require that litigants before them comply with the law.  Here the allegation is that Alex Jones, by and through his counsel, intentionally disregarded a court order requiring him to produce witnesses and documents, so he’s been sanctioned in connection with that.

This is the kind of thing that you see.  I actually have a sanctions memo pending in a case that I have in Maryland.  You don’t argue for it that often, but it isn’t that rare and $100,00 is a lot, particularly for a State court judge to award.  The reason I wanted to jump in on that is because, as you know and as our listeners will know, awarding this kind of relief has nothing to do with awarding relief on the merits.

Thomas:         Yeah.

Andrew:         Yeah.  This is in connection with the defamation lawsuit in which Alex Jones has said that Sandy Hook was a false flag and that the kids involved were crisis actors, and all kinds of other absolute garbage.  So we’ve covered the underlying lawsuits, I just wanna be clear because if you look at it you’d be like, well, $100,000 seems pretty low for the underlying merits.

Thomas:         Wow, I totally missed that!  I guess when you just see the headline-

Andrew:         Yup!

Thomas:         That’s why you gotta listen to Opening Arguments.  That seems like a lot of money for just missing, what, like a deadline or something?

Andrew:         Well it is not just missing a deadline.  Again, here I’ve got to read between the lines a little bit for the reasons I’ve described, don’t have the documents, but typically what happens is you will have missed a deadline, the opposing party will go to court and say look, they have to turn over X, Y, and Z and make the following witnesses available for depositions.  Then the court will say “yeah, come on, do that by X.”  If they still don’t do that, that’s about the time where you start to move for sanctions.

Again, from my practice, in the case that I presently have, I asked – and I don’t wanna specifically comment on the litigation, but I asked the other side to do a thing for six months and I sent a series of sternly worded Crunchwraps, and by the time that the six months – when it was clear that they weren’t going to do what they had to do then I said alright, I’m sending you a draft of our sanctions motion and if you don’t do what we’ve asked you to do I’m going to file this with the Court.  Then they didn’t and so it’s been filed with the court.  That’s typical practice. 

So, again, we don’t know but this is a strong indication that the underlying conduct here is particularly egregious.  It’s a lot of money for a discovery violation.

Thomas:         Yeah. 

Andrew:         So rather than read it as disheartening you should read it as very, very heartening.  Assuming that you think Alex Jones is a monster.

Thomas:         But it does say nothing about the merits, right?

Andrew:         Correct, yeah.

Thomas:         Not even a little bit?

Andrew:         It says – yeah, it says the judge thinks that you’ve behaved, by and through your counsel, in a way that is so egregious that you’ve gotta pay six figures in attorney’s fees to the other side. 

Thomas:         That’s a ton!

Andrew:         That’s a lot.

Thomas:         I mean let’s pretend it’s not the literal worst person almost on earth, let’s pretend things are switched around and it’s like a bad judge and a good – I was gonna say plaintiff but it’s not, defendant or whatever.  Is there a check on this?  Can he appeal it or anything?  What happens, does he have any way to fight it?

Andrew:         You can appeal a sanctions ruling.  Whether it counts as a final judgment and is thus immediately appealable, it does not.  You have to take an interlocutory appeal of the sanctions order and the standard on review is abuse of discretion.  In other words so long as it is within the authority of the court to order this, the court can order it.

Thomas:         Wow. 

Andrew:         Yeah, typically in cases that don’t involve multi-millionaire defendants, the effect of that is to really deter the party into defaulting. I think I’ve mentioned this before, I had a collateral party to a case in which my client’s husband had – how do I put this?  Not shown up in the jurisdiction for his deposition and the Court imposed a thousand-dollar-a-day fine until he showed up.

Thomas:         Oh, right.

Andrew:         Yeah, so it was already six figures by the time the Court awarded it and it was just clear that that meant this guy was never setting foot in the State of Maryland ever again.

Thomas:         Huh.

Andrew:         So that’s all sort of part of the interplay.  If you don’t have assets in the jurisdiction in which the Court issues the order it’s very, very difficult – you can go and get a foreign judgment enrolled but, you know, basically speaking that court order is only going to attach to assets that the party has within the jurisdiction.  So if you’re foreign to the jurisdiction, if you just never show back up in the court again you could probably get away with it.  The court’s gonna enter a default order against you. 

By the way I am describing really terrible practice.  [Laughs]  

Thomas:         Hah.

Andrew:         [Laughs]  The motto of the show is “don’t take legal advice from a podcast,” but really, really don’t take this advice in terms of how to skip out of town and not pay your court-imposed sanctions. 

Again, obviously Alex Jones [Sighs] has assets in Texas and has the financial ability to pay this.

Thomas:         Yeah, yeah.  Somehow. 

Andrew:         [Laughs]  

Thomas:         I guess there’s enough people who love frog turning gay conspiracy theories.  Alright well that’s just our pre-segment so we’d better move on to our first segment which is about [Laughing] writing 2020 on anything you sign, I guess.

OK Boomer – Andrew Tackles Proper Date Writing Techniques Meme

[Segment Intro]

Thomas:         So yeah, I’m sure everybody’s boomer parents are really worried about [Laughing] writing out the full year because you could sub it out with like 2017 or 20-anything! 20-negative 5!  No, that doesn’t work. 

Andrew:         [Laughs]  

Thomas:         Anything … before 2020 I guess.

Andrew:         Yeah, the meme that is circulating around says make sure you write the year in its entirety it could possibly protect you and prevent legal issues on paperwork, because if you write one-slash-one-slash-twenty somebody could write on 17. 

Thomas:         Hmm, yeah.

Andrew:         Then it says (quote) “and now your signature is on an incorrect document” (end of quote).

Thomas:         [Laughs]  

Andrew:         So yeah, a couple of things here.  Number one, it isn’t bad practice to write out the whole year.

Thomas:         Right.

Andrew:         But in terms of fearmongering, a few things.  Number one, this is hardly unique, if you wrote 12/31/19 somebody could put a 78 after that, right?

Thomas:         [Laughs]  Yeah.

Andrew:         And now your signature is on an incorrect document.

Thomas:         Furthermore if you write 2020 they could add a one to it! 

Andrew:         [Laughs]  

Thomas:         Oh my god, someone signed this from the future!

Andrew:         [Laughs]  

Thomas:         [Singing] In the year 2525.

Andrew:         [Singing] In the year 2021!  [Laughs]  Yeah, oooh.

Thomas:         Twenty-two-hundred and one. 

Andrew:         Yeah.  [Laughs]  That would be great!  A couple of things as you go to think about it.  This is not a legal concern.  In virtually – so let’s work through a couple of different things.  Number one, backdating really is – it’s hard for me to imagine what the value would be out of pretending that somebody wrote something earlier unless what you’re trying to do is to show that that document was superseded by the document that it actually supersedes.

For example if you have a contract you might say “third amended contract” and the third amended contract was signed on January 1st, 2020 – again part of the protection is it will title third amended contract?  [Laughs]  If you go back and try and the third amended contract is now supposedly dated 2017 you’d easily be able to know you didn’t wright the third amended contract in 2017 and the second amended contract in 2019, right?  So there are lots of additional checks on that.

The other thing is the idea that if you’ve gotten the date wrong it makes it (quote) “an incorrect document?”  That’s not a thing.  The only area in which I could imagine that being a thing would be in the areas that we have most inherited from 13th Century Saxony, so real property, wills, that kind of thing, and those documents are notarized.  That’s why you have a notary, the legal function of having a notary there is to observe the individual, attest that it is the person who claims to be who signed the document on a particular date, and that is written out in a format that makes it more difficult to do this trick with.  It would say “I hereby personally say that on this 17th day of January, 2020, the following undersigned individual appeared before me,” blah blah blah blah blah.  So … yeah.  [Laughs]  

Thomas:         [Laughs]  

Andrew:         You can reply “ok boomer” if somebody sends you this meme.

Thomas:         Yeah, this is [Laughs]  

Andrew:         Are we still doing “ok boomer?”

Thomas:         Sure!  Official OA position.

Andrew:         Okay.

Thomas:         Especially on these – we could almost do, this should be an Ok Boomer segment, I wish we could find more of these things ‘cuz they’re so funny.

Andrew:         [Sighs] That would be great.

Thomas:         Maybe from time to time.  Hey, let us know, maybe on the Facebook or something, on the group page if you see any more Ok Boomer memes you need a real life lawyer to talk about, I love these, they’re so funny.  I love ‘em too because they’re trying so desperately to be smart, you know?

Andrew:         [Laughs]  

Thomas:         It’s like “ah! Did you realize?”  It’s the perfect foolish thing, which is trying real hard to think about something and be smart and be one up on everybody, but also it’s the dumbest thing in the world and it’s not really a concern, you know?  I love it.

Andrew:         It’s the reason – yes, it’s kind of a fun segment to do, but it goes back to the founding mission of the show.  

Thomas:         Is making fun of boomers.  [Laughs]  No, no, just kidding.

Andrew:         [Laughs]  Is challenging the mindset that the law is about, you know, complying with the National Treasure-

Thomas:         Yeah!

Andrew:         -elaborate maze of technicalities.  Because that way is a very short hop skip and a jump to Sovereign Citizen Land.  The idea that the law is about circumnavigating these bizarre specific provisions and boy, if you signed it in 2020 but it now says 2017 your whole contract is invalid, it’s not true! 

Thomas:         [Laughs]  

Andrew:         So, you know… Ok boomer.

Thomas:         First you write 2020 entirely out on your checks, next you’re paying out $100,000 ‘cuz you didn’t do whatever the court was telling you to do and you’re a conspiracy theorist.  No, no.

Andrew:         [Laughs]  So there you go.

Thomas:         Alright, let’s get to our main segment of the day.  I guess this is – are we yodeling?  Is this yodeling?

Andrew:         Yeah, this is at least yodel adjacent. 

Yodel Mountain – Kupperman Lawsuit Dismissal and FOIA Documents

[Segment Intro]

Thomas:         Okay, we’ve yodeled.  Update us on these cases against Trump, these lawsuits against Trump, there’s too many for a non-lawyer to keep track of.  [Laughs]  What’s going on?

Andrew:         Well there’s now one less, and there was some initial despair over this in liberal circles so I really, really wanted to dive into New Years Eve, December 31st, working hard, Judge Leon in the U.S. District Court for the District of Columbia dismissed the lawsuit in the Charles Kupperman case. 

Charles Kupperman was the Deputy National Security Advisor, he was the sole assistant to John Bolton for most of 2019, he was on that July 25th call between Trump and Zelensky and had been served a subpoena as part of the impeachment inquiry and, as with everybody else who actually knows stuff, was told by Trump not to comply with it.  So what Kupperman did was run to the court seeking a declaratory judgment. 

This, by the way, totally appropriate thing to do.  I don’t know anything about Kupperman in terms of how tightly connected he is to Trump, to the administration, we could make suppositions about this, we don’t have to.  It is perfectly appropriate for anybody to go to a court and say hey, I have two different branches of government telling me to do two contradictory things, the House of Representatives is saying I have to show up for a deposition and bring documents and cooperate with the impeachment inquiry and the President of the United States is saying I have not to show up, I am directed to comply with executive privilege and not show up, I am instructed not to testify, so that seems real bad, what do I do?

That’s essentially what Kupperman did.  The wrinkle in this case – and that lawsuit was just dismissed as moot.  So if you just look at the headline you would think – and look, I had the kind of momentary deep inhalation that was like oh man!  It’s dismissed as moot, now that the President has been impeached is that going to have implications on the subpoena to Don McGahn?  Which, as this episode is being broadcast out, there will be arguments in the D.C. Circuit as to whether Don McGahn has to comply with his subpoena.

I looked at it and kind of had that momentary, is this a ruling that says now that the President has been impeached all of the prior inquiries are no longer relevant?  I am happy to tell you that is not what this ruling says.  This is a good thing, or at least this is not a bad thing. 

It has to do with the unique procedural posture in the Kupperman case.  Immediately after serving Kupperman with a subpoena, within two weeks on November 5th the House withdrew that subpoena, said okay, we don’t need to talk to Kupperman at all and they moved in this case to dismiss the declaratory lawsuit as moot.  They said look, we’re not interested in this guy anymore so he doesn’t need a declaratory judgment, he can just not show up, we’ve pulled out our subpoena. 

Kupperman, for his position, said okay, I get that they’ve pulled back the subpoena but he made two arguments that, again, I think are reasonable arguments.  Those were number one, the House could reissue this subpoena at any time, Lucy pulling away the football.  The fact that they’ve said oh well we’re not gonna proceed against you on this subpoena doesn’t mean that they’re not gonna go forward in the future.  Second he said, and also by the way I could be held in contempt for my failure to comply with this subpoena during the time in which it had been issued.  Withdrawing that subpoena does not exempt him from consequences from failure to comply while the subpoena had been lawfully issued.  Those are reasonable arguments.

Thomas:         Hmm.

Andrew:         So they call into account, the first argument calls into account what is called the voluntary cessation doctrine.  It means what it says, a defendants voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice because otherwise the courts would be compelled to leave the defendant free to return to his old ways.  Think about how that would work in practice.  You have a discriminatory hiring practice, I sue you, and then you say oh okay-

Thomas:         You just stop.

Andrew:         We’re gonna stop that, right?  Then you go into court and you say dismiss this whole thing as moot because we’re not doing the thing that they’ve challenged us over.  That gets dismissed, the second it gets dismissed we put it back into place.  [Laughs]

Thomas:         Yeah.

Andrew:         Then you go back into court again.  Courts are not idiots and they’ve said-

Thomas:         [Laughs]  Courts are not idiots, everybody!

Andrew:         [Laughs]  And they’ve said yeah, look, if this is just something you stopped because you wanted to and you could start up again at any time, that does not moot the case. 

Here Judge Leon said this is not the same as voluntary cessation.  This is, by and through their lawyers, in open court, and in the House impeachment document itself they’ve said, the House Inquiry has said we don’t intend, we will never reissue this subpoena.  So as a result, we think that’s a lot more binding than just meh, we’re gonna stop but we’re happy to start again.  [Laughs]  

Thomas:         Hmm.

Andrew:         Here’s, as it was quoted, the way the House of Representatives described its position in a court document.  (Quote) “To be perfectly clear [Laughing] yet again-

Thomas:         [Laughs]  

Andrew:         -the House Defendants will not reissue the subpoena to Kupperman, period. There are no contingencies or caveats to this representation. The subpoena will not reissue today, tomorrow, or ever.” (End of quote).

Thomas:         Wow.

Andrew:         Right, to which Judge Leon says “The Court is hard-pressed to imagine a more unequivocal statement on this issue.”  Yeah, that’s gonna replace my “let me be clear, I like being clear.”

Thomas:         Never!  Never replace that!

Andrew:         [Laughs]  

Thomas:         Catch phrase! 

Andrew:         Okay, so Judge Leon says look, this is not quite voluntary cessation, this is we have now taken the position that the House of Representatives is bound going forward by stating in open court hey, we’re not gonna reissue the subpoena.  If they did you would be able to go forward, then it would be impossible for the House to try and enforce that subpoena in the future because you would show up and you’d be like uh, you just said we will not reissue this subpoena now or ever and you did” and the judge would very clearly throw that out.  So that was the reason for saying hey I don’t need to rule on this right now, it’s clear, you’re not gonna get subpoenaed again. 

Then he had to tackle the yeah, but what about that contempt process?  Here I thought that was sort of an interesting discussion in which Judge Leon points out “The House has not used its inherent contempt authority in nearly a century, nor has it ever sought to impose a monetary fine as part of that authority.  The possibility of the House doing so after withdrawing its subpoena is even more remote. 

Have no doubt though, should the winds of political fortune shift and the House were to reissue a subpoena to Dr. Kupperman, he will face the same conflicting directives that precipitated this suit. If so, he will undoubtedly be right back before this Court seeking a solution to a Constitutional dilemma that has long-standing political consequences:  balancing Congress’s well-established power to investigate with a President’s need to have a small group of national security advisors who have some form of immunity from compelled Congressional testimony. 

This is a dilemma, I might add,” (by the way I’m still reading from the Court opinion) “that I particularly appreciate having served on a number of occasions in both the Legislative and Executive branches.  Fortunately, however, I need not strike that balance today!”  This is because Judge Leon was a member, he was in the Reagan Department of Justice, he served in the George W. Bush administration, and he was nominated to the federal bench by George W. Bush in 2002.  Not a liberal guy, pre-Trump long thought of as one of the more conservative members of the District of Columbia of the U.S. District Court for the District of Columbia.

I think it is really, really telling that Judge Leon, the way Judge Leon put this position, in articulating the best case argument for the government, that argument is (quote) “the need to have a small group of advisors who have some form of immunity” (end of quote).  That’s a really, really strong tell from somebody who, if you are a Trump loyalist you might have counted on Judge Leon as one of the folks for whom you would like to see any potential challenge to the ability of the House to subpoena witnesses, or any Trump challenge in general, before. 

Judge Leon, for example, has ruled very expansively, he struck down the D.C. handgun ban, for example.  He’s got some interesting decisions that we don’t have time to do on the sidebar on search and seizure and was involved actually with former partners of mine in the Guantanamo Bay cases.  He’s an interesting, thoughtful guy.  Somebody who’s ideologically opposed to 90% of this show, but he’s not Neomi Rao, he’s not Justin Walker, he is not one of these legions of unqualified Trumpkins that have been appointed out to the federal bench.

If you’ve lost, and this is a pretty strong indication, if you’ve lost Judge Leon, you know that things are not looking good for you in connection with legal arguments related to impeachment.  As we said on our Christmas day episode, there is every possibility that court decisions related to impeachment coming out of, first the District Court of the District of Columbia, and then the D.C. Circuit, might stand at the Supreme Court if John Roberts recuses himself, which I believe he will do.  So, really good sign!

Thomas:         Huh!

Andrew:         I know it starts with this case was dismissed out and dismissed as moot and we’re not gonna get Kupperman’s testimony.  We’re not gonna get Kupperman’s testimony because the House said “we’re not interested in this, this isn’t the guy we wanna go after.”  Why did they make that decision?  I assume for strategic reasons.  They wanna put all their eggs in the McGahn basket and McGahn is the guy that they really want anyway.  So that’s where we are!

Thomas:         Alright, so you’re saying this is relatively good news?  I mean it kinda sounds like it’s nothing news, because if they weren’t gonna try to go after Kupperman anyway then this doesn’t really, this decision or whatever doesn’t really affect much. 

Andrew:         That’s right, it is nothing news in terms of the actual development of the impeachment case.  It is if you’re reading the tea leaves in terms of what the D.C. bench looks like, it’s bad news if you’re a Trump loyalist and you thought that you were going to get – again, remember, Richard Leon, this is somebody who’s a lifelong Republican.  [Laughing] We continue to tell these stories, right?  Lifelong Republican, worked with the Republican House of Representatives, counsel to the Republican Senate.  This is just a career, as partisan a Republican as we are partisan Democrats, how about we put it that way?  I don’t wanna be insulting. 

Here’s somebody signaling, because the McGahn argument and the entire Trump position rests on the idea that executive privilege is absolute.  That position, we have continued to say from the very beginning, is not legally defensible or tenable.  It really is crucial, again if you’re anybody other than the Internet Research Agency, a troll farm in St. Petersburg or Vladimir Putin, you don’t want that to be the rule.  [Laughs]  Right?  We have never had a President who’s said “I am going to direct members of the executive branch to break the law in order to protect me.”  You don’t want the President to have that kind of power.

Thomas:         Alright. 

Andrew:         That’s where we’re going!

Thomas:         Well okay, relatively good news.  Any other cases we need to know about?

Andrew:         Yeah, really really quickly because I have made a request to Kate Brennan, who just released, I’m gonna link it in the show notes.  Sorry, her name is Kate Brannen.  She claims that she has un-redacted documents produced pursuant to a Freedom of Information Act request that reveal – the top line in her story is Michael Duffy, associate director of national security programs at OMB sent an email that said (quote) “Clear direction from POTUS to continue to hold” (end of quote) with respect to the White House’s hold on Ukraine aid, on August 30th which by the way is after the statutory review period that is permissible pursuant to the executive disbursement of funds. 

This is – again, if true, very, very significant in demolishing the flimsy defense that is being put forward that says, no the President was super concerned about rooting out corruption in Ukraine.  Demonstrating the corrupt intent aspect of bribery, as we’ve talked about, is part of the game of this impeachment trial.  The more evidence you have that builds a cumulative case that says yeah, this was crystal clear, everybody knew what was going on here, the better the position we’re in.

But I have asked Kate specifically if she will release the underlying documents.  I get wanting to do an exclusive but, you know, crowdsource that out, Kate!  We’ve got lawyers over here willing to look through and maybe we can spot some stuff that you can’t.  I’m gonna link the story in the show notes it is really, really good reporting.  Don’t have the documents yet, hopefully we will by next week.

Thomas:         This idea of having to prove corrupt intent about somebody, which we all know is nothing but corrupt intent, just is corrupt intent – I start with the corrupt intent with Trump and then his other features on top of that.  It’s like I dunno, but did Thanos have corrupt intent when he killed half of the everybody in the universe?

Andrew:         [Laughs]  

Thomas:         Or did it just in a non-corrupt way?

Andrew:         In fairness I would rather have President Thanos right now.

Thomas:         Yeah!

Andrew:         I think we’re all clear on that.

Thomas:         At least he has principles.  [Laughs]  

Andrew:         Yeah, yeah!  But look, it is easy to get demoralized.  I continue to be Optimist Prime on this, I think, again there are a large number of scenarios in which nothing changes other than we have impeached a President for the record.  You and I have both said we think that that is overwhelmingly the most likely outcome.  It is not implausible to think that there will be an army McCarthy hearings kind of moment in which people who are not presently ready to side against Trump look at it and go, okay, yeah, we’ve had enough. 

Yes, it’s frustrating that enough should have been enough a long time ago, but I continue to have some optimism on that.  My optimism hasn’t fared well in 2019, let’s see how it does in 2020.

Thomas:         Alright well I think that means that we have already completed our New Years Resolution!  Catch up everybody, we’re already done because we are getting to our C Segment!

Stacey Abrams Lawsuit

[Segment Intro]

Thomas:         Not a Wild Card, it’s just a card.  It’s a card segment.

Andrew:         [Laughs]  

Thomas:         It is regarding the Stacey Abrams lawsuit.  Now I don’t know that this is good news exactly, so maybe in the end my excitement is a little misplaced but what’s happening regarding the Stacey Abrams voter registration lawsuit?

Andrew:         This is not as bad a news as you might think.  The underlying problem is really, really bad and that was dealt a setback just two days ago by an Obama-appointee, Judge Steve C. Jones in the Northern District of Georgia.  Not a fixed outcome, I’m gonna explain exactly what happened and exactly what comes next. 

So Stacey Abrams started a group called Fair Fight Action, here’s the underlying issue.  At the time of the filing of this lawsuit in 2018 Georgia was following the Ohio model of what Republicans are trying to do, which is prevent people from voting.  This is sadly constitutionally permissible, we talked about that in great length in our previous episodes.  So Georgia had a law that required the Secretary of State to send a postcard to voters with whom there had been (quote) “no contact for three calendar years.”  They’re suspicious, they send out this postcard, if the voter fails to return the postcard the voter’s status gets changed to inactive. 

Thomas:         Huh.

Andrew:         That change to inactive is then the predecessor to if the voter still did not vote in the next two general elections he or she was removed from the registration rolls entirely and thus becomes ineligible to vote.  Okay?  So this is what we mean by purging the voter rolls.  You find people who haven’t voted, and why do they pick three years?  Well they pick three years because that’s not the distance of time between Presidential elections. 

Look, the OA position is vote early, vote often, vote in every election you can, and we do that.  Lots and lots of people only vote in Presidential elections.  In particular, members of the Obama coalition tended to vote only in Presidential elections.  So you pick three years, somebody voted for Obama in 2012, they didn’t vote again all the way up through 2015, and then you mark them as “inactive,” and then as a result if there is a special election in 2015 and then they don’t vote in the 2016 primary – again, lots of good reasons not to vote in a primary. 

Georgia’s not a great example, but there are plenty of States where voting in the primary is pointless if all you care about is the Presidential election.  Again, I think we’re pretty clear, vote in your primaries, people!  But you can understand why lots of folks don’t.

Then you get removed from the voting rolls entirely, and here I’m going to read from the decision.  “Removing somebody entirely is essentially complete disenfranchisement.”  Here’s why.  Number one, Georgia doesn’t tell you when you’ve been removed from the voting rolls.

Thomas:         Wow.

Andrew:         Now here’s their defense for that.  Their defense is we’ve been shouting down a well for three years, we don’t know if you live there anymore so we’ve given up, we presume that you’ve moved out of State or something else, so why would we send a notification to an address that we don’t think you live at anymore?  Again, trying to steel man the other side as much as possible.

Thomas:         Yeah, I was gonna ask, what is the harm of having people on a voter registration?  The couple bites of information that are in a spreadsheet or something?  What is the cost?  If you waited 20 years to remove somebody what would be the cost if, say, they did happen to actually leave the State 18 years ago?  Is it a huge cost, is it a huge burden?

Andrew:         The argument is the fraud argument.  It is I move from Georgia to Maryland but I keep my registration in Georgia and all of a sudden there’s a contested election in Georgia, I no longer live there, I shouldn’t be allowed to vote, but I really, really wanna go down because I want Stacey Abrams to win so I drive down to Georgia and go to my old polling place.

Thomas:         Plus the devil went down to Georgia!

Andrew:         [Laughs]  And cast my fraudulent vote.

Thomas:         Wow, that actually fit the-

Andrew:         It really did! [Laughs]  

Thomas:         Going down to Georgia to cast my fraudulent vote!

Andrew:         [Laughs]  Again, I’m steel manning the other side as much as possible.  That’s the argument that the defendants have made in open court in this case.  It is we need an accurate list that enables us to know whether you still live in the State or not because we don’t want people voting in an area where they don’t live anymore.  That’s it.  There is no evidence regarding how frequent that is.

Thomas:         Yeah, if you’re gonna go to the trouble of moving to a different State and keeping up your registration and voting in both States, I think you should get an extra vote, actually.  That’s gonna be like 12 people who would care that much.

Andrew:         Again, I think I’ve made the argument better than the State of Georgia has made this argument. 

Thomas:         [Laughs]  

Andrew:         I will read to you directly from this pleading.  “Defendants have identified three State interests in enforcing this legislation.  First, defendants state that the State of Georgia has an interest both generally and as compelled by federal law in maintaining reliable lists of electors.”  That’s the argument I just made but not quite as good.

“Second, defendants state that the State of Georgia and the Secretary of State have an interest in applying the election laws as specifically written.”  That’s it, by the way.  “Finally, defendants maintain that the no contact scheme eliminates voter confusion and improves election day operations.  Defendants argue that inaccurate voter lists that incorporate individuals who have moved and are no longer eligible may cause local election officials to improperly assess where equipment and personnel should be deployed on election day in 2020.”

Those are their three arguments, that’s it.

Thomas:         Huh.

Andrew:         We know the reason to do this is to eliminate periodic voters from the voter rolls.  I haven’t gotten to the worst part which is in Georgia, number one, they don’t tell you when you get purged from the voting list.  [Sighs] Then the moment, because you don’t get notified, the moment that may voters learn that they have been removed from the voter rolls is when they arrive at the polls and the State of Georgia does not offer same day voter registration.  So you show up to vote, you’re told um, you’re not registered, you say how do I register?  Then they say oh-

Thomas:         Better luck next election!

Andrew:         Yeah!  That’s actually what they do.  [Gritted teeth] And it’s worse than that, because you have to register within a particular, again I’m just gonna quote from the decision.  “For the individuals who have learned that they have been removed from the voter rolls, there is only a narrow window of time for said individuals to re-register before the next election, as Georgia law requires voters to register weeks before any election.” (End of quote).

So yeah, it’s a mousetrap.  You get there, you’re told you’re kicked off, you’re told you have to apply back within this particular window and again, the idea is to deter those voters from just saying “the hell with it.  I tried and now I’m just gonna go home.” 

How many people does this apply to?  You will see the number at 100,000.  Here’s how it gets there – oh, by the way I’m sorry, I’ll do the numbers in a minute.

Let me explain the change.  So 2018, the law in effect at the time was designed to remove you from the voter rolls after 3 years of no contact, you don’t fill out the form.  In 2019 the State legislature passed House Bill 316.  House Bill 316 extends that window from three years to 5 years.  By the way this was super clever. 

.Since we have a lot of, you know, you and I take our pot shots at centrists and we have a lot of listeners who do that as well.  This is a really good illustration of where the centrism, I think, worked out properly here.  This is Georgia, you probably couldn’t get the voter registration repealed, there’s still strong Republican interest in deterring people from voting, so what you do is you say okay, well let’s just increase the notice requirements a little bit, let’s extend it out from three years to five years, that’ll cover a full President election cycle.

Again, is that still gonna disproportionately fall on voters who face the heaviest burden?  Yeah, absolutely.  Single moms, you can absolutely understand why they might not vote for five years.  It’s still a bad thing, but it’s a really, really good way of cutting out that three year provision and the specific reason why they picked three years that they can’t admit out loud.  If you can’t say the quiet part loud, yeah we want three years so that we root out people who only vote in Presidential elections, now you go to five and we widen the net on that.  Really good, in my view, the right step in the right direction.

This lawsuit was about whether that bill, 316, was retroactive or not.  Whether it looked backwards to, at the time – so in other words if you had people who were in the process of being purged because of no contact for three years whether they get an additional two years or not.

Thomas:         Hmm.

Andrew:         Or whether it only applies, whether the clock only starts to run at the moment that law goes into effect.  Makes sense?

Thomas:         Yeah. 

Andrew:         Yup.  So of the list to be purged, 313,000 people on it.  Of those, 100,000 filed a change of address form, so they no longer live – they should be removed from the voter rolls.  85,000 had election mail returned as undeliverable, so that adds up to just under 200,000 and the Stacey Abrams group is not contesting removing those 200,000 voters from the voting rolls.  That leaves the 100,000 – it’s 120,561. 

After filing the lawsuit another bit of good news, because the Abrams group filed the lawsuit, of the 120,000 people left they restored 22,000 people.

Thomas:         Huh.

Andrew:         They took them off the list, they were like oh, yeah, no look, you went, you clearly demonstrated that there were folks that, even though they didn’t respond to the notice, still live there, you showed us the obvious evidence and we’re gonna add that back on, so that’s another little bit of a sidebar but that’s another salutary effect to bringing a lawsuit when you challenge government policy. 

Not everybody is Mitch McConnell, is evil from top to bottom.  Sometimes it’s just bureaucrats doing their jobs, and you might generally be a Republican and generally agree that people who don’t live here shouldn’t vote, but when you see the actual evidence and you’re like look, you’re about to delete somebody because of a computer error, the average bureaucrat is like I don’t wanna do that. 

So 22,000 people went back on, that leaves just under 100,000 – 98,000 voters who are at issue.  So all of that is the background, what happened in this case is this was really the wrong lawsuit to bring.

Thomas:         Huh.

Andrew:         It was the wrong lawsuit to bring seeking injunctive relief, we know the standards for injunctive relief.  They lost on likelihood of success on the merits and the reason they lost has to do with one of the weirdest constitutional amendments, one that we have never really talked about on this show, the 11th Amendment.  The 11th Amendment says “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

If we had more time in this show I would go into the super fun history of the 11th Amendment, it’s really, really neat.  What you need to know is that in 1984 there was a decision called Pennhurst State School & Hospital v. Halderman.  In that decision the Supreme Court said that under the 11th Amendment a federal court cannot order State officials to obey State law. 

Thomas:         Huh.

Andrew:         You can sue State officials in federal court for violating federal law, but you can’t sue a State official-

Thomas:         Interesting.

Andrew:         -in a State court for violating the State’s own law, that is prohibited by the federalism concerns inherent in the 11th Amendment.

Thomas:         I guess that kind of makes sense.  It’s up to the State to do that, right?

Andrew:         That’s exactly right and that, by the way, is what this judge says.  He goes through all of it and he says look, there you raise the constitutional challenge, I’m gonna look at it, but ultimately you’re arguing that HB 316 should be retrospective.  That interpretation is reasonable, but I’m a federal District Court judge, I’m not gonna decide how to interpret your State law as a matter of first impression.

He says here’s what you can do, (quote) “the preferable way to obtain resolution of the State law issue is through the certification process by the State Supreme Court,” that is asking the Court to certify a question to the Georgia State Supreme Court to say hey does HB 316 apply retrospectively or not?  I imagine that that, by the way, is what the Abrams group will do now.  Then he also adds, he says “neither party has asked us to certify a question to the Georgia Supreme Court, Plaintiffs also have an additional remedy in the form of seeking mandamus in the State courts.”

So two different avenues that you can go down.  I understand and I could talk about the tactical considerations that led Fair Fight Action to file this case in federal court, I get from a tactical basis why they did that, but the problem is that they came up against the Pennhurst doctrine.  Again, I think this is a reasonable decision being made by a reasonable judge.  Obviously I don’t love the outcome, it’s why I went through all the history and it illustrates the importance of keeping up the fight on this. 

This is not a Trump fix that was in the bag, this was not a hack, this is probably the best judge on the federal bench in the State of Georgia, and there are avenues still out there.

Thomas:         This is pretty disappointing though because I for one believe in Stacey Abrams and what she’s trying to do.  Why the screw up?  Or what’s the explanation?

Andrew:         Again, we’d have to talk to her and talk to the lawyers, but I suspect that what they did was looked at it and said federal court is most likely to give us definitive review and we’re most likely to avoid the – we’re gonna get a better quality of judge and we’re probably gonna get a more politically open minded judge and they got that.  So they’re looking at it, the difference between the federal bench and the State bench is that the governor of Georgia has been a Republican forever, so the State courts I feel pretty confident are very, very partisan Republican in Georgia.  So that’s kind of component one, is the partisanship. 

Component two is the notion that federal courts in general are more willing to issue injunctions, are more willing to issue preliminary relief.  I don’t wanna say that it was an indefensible or even a bad strategy from the beginning, it just didn’t work out in this case.  They still have the opportunity to go get emergency mandamus relief from the State courts, they’re no worse off other than the passage of time.

Thomas:         Hmm.

Andrew:         So you know-

Thomas:         Alright.

Andrew:         Didn’t work out, they probably knew it was gonna be a long shot, they’re not gonna say that in public but that’s my best – as I dig beneath the surface and I see really, really good lawyering by the other side, they were aware of the Pennhurst doctrine and they drew a good judge, they had a fair hearing, and the law is just the other way.

Thomas:         Well there you have it.  Most importantly we nailed our New Years Resolution, so balls in your court, everybody!  Hope you do as well as we did! [Laughs]  

Andrew:         [Laughs]  

Thomas:         We got to the C Segment.  Yeah, feels like not amazing news but I guess not horrible news and hopefully they’ll be back at it in either the State courts or with some other action.  At any rate, we have covered everything and now it’s time to thank our new patrons over at, hope you’re enjoying all the goodies.  I think we’re due for a Law’d Awful Movies in a couple weeks here and also I’m sure we’ll be giving you some bonus material this month because I think we’re due, but let’s thank our newbies over there!

[Patron Shout Outs]

Andrew:         Thank you all so much for heading on over,, giving as little as a buck and you get all of the fantastic perks.  If you’re sitting on some additional holiday cash think about giving a gift to yourself of becoming a patron of Opening Arguments.

T3BE – Question

[Segment Intro]

Thomas:         Alright and now it’s time for Thomas Takes the Bar Exam! T3BE, I think I blew the last one so let’s see if I can recover.

Andrew:         Okay Thomas, a wholesaler contracted in a signed writing to sell to a bakery 10,000 lbs of flour each week-

Thomas:         Oooh, contract.

Andrew:         -for 10 weeks. The flour to be delivered to the bakery on Mondays and payment to be made on Wednesdays of each week. The bakery did all of its weekly bread baking on Tuesdays.  So Monday morning of the first week, the wholesaler tendered the delivery of 8,000 lbs of flour to the bakery-

Thomas:         Oh.

Andrew:         -and the bakery accepted it on the wholesaler’s assurance that the remaining 2,000 lbs would be delivered later that evening, which it was.

Thomas:         Okay.

Andrew:         The bakery paid for both deliveries on Wednesday. On Monday of the second week, the wholesaler tendered the delivery of 5,000 lbs of flour to the bakery-

Thomas:         Hmm.

Andrew:         -and said “the remaining 5,000 lbs could not be delivered on Monday but would be delivered by Wednesday”. The bakery rejected the tender. Was the bakery legally justified in rejecting the tender of the 5,000 lbs of flour?

Thomas:         [Sighs] I would certainly hope so.

Andrew:         [Laughs]  So, A) Yes, because the bakery was legally entitled to reject any tender that did not conform perfectly to the contract.

Thomas:         Hmm.

Andrew:         B) Yes, because the tender was a substantial impairment of that installment and could not be cured.  C) No, because the tender was not a substantial impairment of the entire contract and the wholesaler had given assurance of a cure, or D) No, because by accepting the first 8,000 lbs. on Monday of the first week the bakery had waived the condition of perfect tender and had not reinstated it.

Thomas:         Hmm.  Interesting, interesting.  So okay, I’m pretty sure I know what’s going on here but you never know, it is the bar so I could always be wrong.  I think that this certainly jumps out at me as yes, you are justified in rejecting this offer.  Now when somebody says we’re gonna give you 8,000 lbs. of flour on Monday but also the next 2,000 will still be delivered but just later that evening, that seems entirely within the contract.  Like I don’t even know that you would’ve really had to give permission for that because the contract says 10,000 lbs. of flour each week, the flour to be delivered to the bakery on Mondays and payment to be made on Wednesdays because the bakery does all of its weekly bread baking on Tuesday.

Is that how bakeries work, by the way?  Do you bake once a week and then you sell like stale bread the rest of the…

Andrew:         [Laughs]  

Thomas:         Maybe.  I feel like they bake almost every day unless I’m totally off.  Anyway, but we’ll go with that, let’s say they bake on Tuesdays so they clearly have a need for this on time delivery, or at least delivery by Monday.  This seems like not a casual part of the contract, seems very important to the contract.  I’ve got my answers that are jumping out on me.  I’m leaning toward yes, but we’ll see.

A, yes because the bakery was legally entitled to reject any tender that did not conform perfectly to the contract.  Ooh.  I don’t think it’s that.  ‘Cuz I feel like if you, you know, if they delivered by accident 9,999 lbs. of flour or something, and a half, would that be justification or furthermore a 10,001 lbs. or something, would that be justification to just reject it?  I feel like there’s gotta be some materiality concern there, like alright, we pretty much did 99.99% of this, you can’t just get rid of our contract because it was slightly – I dunno, so I don’t like A for that reason, but you know, it’s not impossible that that’s right but I don’t like that.

B, yes because the tender was a substantial impairment of that installment and could not be cured.  That’s the answer that I’m absolutely leaning toward, B, but we’ll keep going.

C, no because the tender was not a substantial impairment of the entire contract and the wholesaler had given assurance of a cure.  I mean that’s plausible-ish but like I said, the fact that the 5,000 lbs. wouldn’t be delivered until Wednesday feels pretty substantial to me because that’s necessary for this business.  They need the flour on Monday to be able to bake on Tuesday. 

D, no, because by accepting the first 8,000 lbs on Monday of the first week the bakery had waived the condition of perfect tender and had not reinstated it.  So D is my most plausible no answer, I think.  There’s certainly the possibility that by accepting the first thing you’ve waived that condition?  I think that’s plausible, on its face at least.  Prima facia. 

But I kinda think the fact that it still was delivered on Monday, they just did two shipments, so I almost think there wasn’t even any change on that.  ‘Cuz it says on Monday morning of the first week the wholesaler tendered delivery of 8,000 lbs. and the bakery accepted it on the wholesalers assurance that the remaining 2,000 lbs. would be delivered later that evening, so that’s still on Monday, I don’t really think that would have or should have changed the contract at all.  It’s possible I’m wrong.

So I’m between B and D and I’m gonna go for B, yes because the tender was a substantial impairment of that installment and could not be cured.  I think that sounds the most plausible, the contract seems pretty clear, the bakery needs that full 10,000 lbs. on Monday and despite having accepted two shipments on the first Monday I don’t think that changes what’s going on so I’m going with 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 the hashtag #T3BE, include your answer, your reasons therefore and we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Thanks so much for listening everybody and here we are, 2020.  Did you know that hindsight is 20/20, Andrew?

Andrew:         [Laughs]  Make sure you write out that full year on all your checks!

Thomas:         [Laughs]  I’m gonna write out the full year on all my podcast episodes, otherwise somebody could go in there and change-

Andrew:         Then our name would be on an incorrect podcast, so we can’t have that!

Thomas:         [Laughs]  And therefore somebody would own our houses or something.

Andrew:         Yeah, I’d have to be a butler, oh god it would be a mess!

Thomas:         [Laughs]  [Sighs] We love ya, Happy New Year and we’re looking forward to a better – you know, an election year of Opening Arguments, so we’ll see you next time!

[Show Outro]

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