Listen to the episode and read the show notes
Topics of Discussion:
- Hofeller Document Release
- Border Wall Update
- Rick Perry’s New Job
- Iran Strike Update and Background
- Yodel Mountain – John Bolton Will Testify
- Kupperman v. CNN Lawsuit Settlement
- T3BE – Question
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 349. I’m Thomas Smith, that’s Andrew Torrez. How’re you doing, sir?
Andrew: I am fantastic, Thomas, how are you?
Thomas: I’m good but I’m just realizing does this mean new intro quotes soon?
Andrew: Ooooh!
Thomas: Is that how the numbers work? I can’t remember.
Andrew: Yeah, it is how the numbers work.
Thomas: Okay.
Andrew: Yeah, we’ll have to get that up and running awfully quickly over at patreon.com/law where people can submit their own 15 second intro quotes for the show.
Thomas: It’s definitely a lot shorter than 15 seconds, but that’s okay!
Andrew: [Laughs]
Thomas: I don’t know the technical stuff around here, that’s fine, no problem. Some of ‘em are like 4 seconds, but it’s cool.
Andrew: People can submit their own 4 second clips for the intro of the show!
Thomas: [Laughs]
Andrew: Shorter is better. Every time someone will submit-
Thomas: Yeah.
Andrew: -the entire Monty Python argument sketch and you’re like, I get it, it’s really funny.
Thomas: As the audio – I’ll give Brian credit too. As one of the audio engineers on this show there’s often times other factors that people don’t realize when I don’t pick their quotes, there’s some background music or something that makes the quote not usable.
Andrew: Or it has nothing to do with the sharkticons.
Thomas: [Laughs]
Andrew: There are lots of reasons-
Thomas: Technical reasons like that, yeah! [Laughs] Like EQ and sharkticons. That’s a lot of fun, we do that – I guess it’s ever 25 episodes, I wanna say?
Andrew: Yeah, yeah.
Thomas: I think, so yeah, 351 because there was an episode zero. Oh, shoot!
Andrew: [Laughs]
Thomas: [Laughs] Alright anyway, all that aside, we’re just making merry here but we do have to talk about a lot of stuff today. We’ve got, of course, Iran, the strike that happened there and more. Also impeachment news! We got a few pre-show things to talk about which, I never know. Lightening round Andrew over here, we don’t know how long that’ll be but I know you have a few items on your list pre-show so why don’t you take it away?
Hofeller Document Release
Andrew: Yeah, a couple things. Let me get the super short ones out of the way quickly. Item number one, the Hofeller documents. We have talked about Thomas Hofeller, the GOP shady tricks operative who masterminded the ideas, basically all of the Republican plans on gerrymandering for the past decade or so have used this guy as a consultant. His files were, I believe, 100% crucial in shaming John Roberts in the Department of Commerce litigation over the census question because his files produced a document called “hey, if we had a question to the census about citizenship lots of Democrats and non-white people will not answer it and that will drastically undercount them and benefit us as white Republicans.” I am pretty much not kidding, that’s almost word-for-word what the document says.
So, good news, the courts have kind of battled back and forth over this. Stephanie Hofeller, the daughter who found the documents on the hard drive after her dad died, has uploaded them publicly.
Thomas: Yeah! She just like wiki-linked them or whatever!
Andrew: Yeah!
Thomas: Wiki-leaked them is what I meant to say.
Andrew: [Laughs] Let’s reclaim wikileaks as a verb.
Thomas: Yeah.
Andrew: So, www.thehofellerfiles.com, it’ll be linked in the show notes. I have started to dig into these documents and I’m sure there is all sorts of really, really interesting information so I wanted to flag that. That’s a positive, proactive step.
Border Wall Update
Number two and sort of more miserable, this is probably a preemptive Andrew Was Wrong.
Thomas: Oh.
Andrew: We did two episodes on Trump stealing billions of dollars in military appropriations to build his big dumb wall, episodes 243 and 255. I, while explaining that national emergencies vest the President with a wide latitude and discretion and that they are far more common than you think and this tactic gets used all the time, I nevertheless expressed a lot of confidence that this was so tenuous and so stupid and so bad that no courts would – [Sighs]
Thomas: [Laughs]
Andrew: So today we found out about an hour ago that the 5th Circuit on a divided 2-1 panel stayed-
Thomas: Panel?
Andrew: Yeah, ‘cuz it’s the-
Thomas: Are we gonna get a decision en banc? [Laughs]
Andrew: Yeah, I think that’s coming next.
Thomas: Alright!
Andrew: All Circuit Courts of Appeal-
Thomas: See how much I know about the law! [Laughs]
Andrew: Yeah! Sit in 3-judge panels. This was a 2-1, it stays the injunction issued by the trial court pending the resolution on the merits which means that Trump can go ahead and steal the money from other military appropriations.
Thomas: [Laughs] Is that what the official ruling was? Yes, you may steal this money. We’re a court of law!
Andrew: [Laughs] I am picturing Hedy Lamarr in Blazing Saddles going “Land: see Snatch. Snatch: see Land.” That’s pretty much what this is. So I thought that the law mattered and … apparently it doesn’t.
Thomas: It just goes to show, stop thinking the law matters and stop trying [Laughs] This is a real victory for Negatron.
Andrew: No one should listen to this show ever again. The law doesn’t matter, we can all go home.
Thomas: Naw, is there still time for you to be right? That’s the most important thing for me.
Andrew: Yeah, there is still time for me to be right. This almost certainly will be petitioned to the full 5th Circuit en banc. I would assume that even the 5th Circuit here would issue an administrative stay of its ruling pending re-hearing en banc, or at least pending redetermination en banc. Again, as with all of these cases, no matter how they come out it’s almost impossible to argue that they shouldn’t be heard by the entire Circuit.
Thomas: Mm-hmm.
Andrew: These are all cases of first impression. Now it’s a case of first impression because we haven’t had a criminally-insane gameshow host try and steal military funds to use it to build a technologically infeasible and patently stupid wall around the United States, but, you know, we do now, so now we’re gonna have-
Thomas: I know this is just pre-show segment so apologies, but how did it get decided to be in the 5th Circuit? What’s the process there? I can imagine that – would it matter which border States are in which Circuits or is there a different way that it would end up in a given Circuit?
Andrew: That is a really, really great question. Here’s how. So multiple lawsuits were filed at the time that Trump announced that he was going to steal military funds under the guise of national emergency to build the wall. This was back in February of 2019. A lot of these lawsuits were filed in friendly jurisdictions – D.C., California.
Thomas: Yeah, we’ve got a borer over here! Come on, 9th Circuit!
Andrew: Yup, that’s right. So the Sierra Club ACLU brought a lawsuit in California and the State of California and fifteen other blue States also filed a lawsuit in California, again trying to jockey for a favorable jurisdiction. This lawsuit involved land owners in Texas so that’s how it gets up to the 5th Circuit which sits over the State of Texas. You’d rather not have arguably the most conservative Circuit in the country, but you’re kind of constrained by the question of standing, which was central to the 5th Circuit’s decision here. That’s how we wound up, this was a suit brought by El Paso County, Texas and a human rights group called The Border Network for Human Rights.
Thomas: Is it just a race? Whichever one gets to the top fastest, that’s just the case that decides it or something?
Andrew: Yeah, and that’s kind of what happened. The Sierra Club lawsuit made it, the District Court issued an injunction, the 9th Circuit upheld the injunction, then the Supreme Court intervened a couple of months ago and said look, we don’t think there’s standing in this case because you’re talking about an interest group, you’re not talking about the actual landowners, so we’re going to stay the effect of the injunction, allow this to go into effect pending adjudication on the merits. That decision was relied upon – this opinion is only a paragraph long.
It just says “the application is granted, the Supreme Court recently stayed a similar injunction, the government is entitled to the same relief here for reasons including the likelihood that appellees lack standing.” That’s literally all it says.
Then there’s a dissent that says “Uuuh, maybe we should analyze this?” But the two judges in the majority were like “nope! I don’t think we’re gonna do that.”
Thomas: [Laughs] Alright.
Andrew: So there we have it!
Thomas: Well now that we’re kind of at war I don’t know what to root for. Is it better to have more money diverted to a stupid meaningless wall? Or is it better to have it in the military? I dunno [Sighs]
Andrew: Yeah, who knows, who knows.
Rick Perry’s New Job
Thomas: Okay. Alright, one more item.
Andrew: One more item, this got a lot of play in the news. It’s something that I want all of us to be very, very clear on. That is, outgoing Secretary of Energy, Rick Perry, the man unable to count to three, just joined the board of directors of an entity called LEGP, General Partners, LLC. Whenever you see weird letters like that you know it’s a holding company. So this is a holding company for a limited liability partnership called Energy Transfer, LP.
You may or may not recognize that name. Energy Transfer, LP is the entity that built the Dakota Access Pipeline.
Thomas: Oh.
Andrew: Because Rick Perry is joining the board of directors of the parent organization and it’s an LLC they don’t have to make public filings, so we don’t know how much LE General Partners, LLC is worth, we also don’t know how much they’re paying Perry. We do know that he will (quote) “be compensated for his services.”
Energy Transfer, LP has $88 billion in assets.
Thomas: Hmm.
Andrew: Did $54 billion in revenues in 2018. Has nearly 12,000 employees. So the Dakota Access Pipeline, that was a $3.8 billion project, that was a drop in the bucket for these guys.
Here’s the significance: Energy Transfer, LP is way bigger than Burisma, and this is 100%- again, we need to be clear on this. This is 100% the same alleged corruption as – and we should say the same actual corruption. We know Hunter Biden served on the board of Burisma.
Thomas: Yeah.
Andrew: Rick Perry will now be on the Board of Directors of the parent company of Energy Transfer, LP, and both of them are talentless, idiotic, political hacks, who have been added to energy companies as political cover. You cannot be mad about one and not the other.
Now, for our audience a lot of that is going to be correcting Aunt Kathy when she’s like [Impersonation] “Well, you know, Hunter Biden blah blah blah” and you’ll be like “you do know Rick Perry just did the exact same thing.” Literally the exact same thing. It’s gross, it’s stupid, and it’s bad, but this is the kind of garden variety corruption, that’s why we called it that.
Don’t pat yourself on the back too hard trying to defend Hunter Biden, he is a talentless political nepotista, but, you know, let’s be consistent.
Thomas: Yeah, it really is the system. It’s hard for me, I dunno. [Laughing] I’m trying to figure out who to be mad at, I guess!
Andrew: [Laughs]
Thomas: You know, if you’re Hunter Biden and some company’s like “hey, we’ll just pay you a lot of money for no apparent reason,” and he’s like “okay, sure, I like money for no apparent reason.”
Andrew: Money can be exchanged for goods and services!
Thomas: I don’t blame Joe Biden for having named his son Hunter Biden.
Andrew: Yeah.
Thomas: I dunno, where’s the blame? Where do you think the blame lies? In the system, in the companies, in the … what?
Andrew: [Laughs]
Thomas: I don’t even know, what reform could you do to stop this? Is it just ethics?
Andrew: There’s lots of stuff you could do, and let’s steal a page from the Trump playbook. This is originally what “Drain the Swamp” was supposed to mean.
Thomas: [Laughs] Yeah.
Andrew: It was supposed to mean that you don’t have people from the industries they’re supposed to be regulating come into government positions to regulate the industries they just left which, by the way, happened with the fossil fuel industry among others, with Betsy DeVos and the Secretary of Education.
Thomas: Goldman Sachs as well, right?
Andrew: Yeah, and it’s supposed to be bi-directional. That is, you don’t hire industry hacks to come in and gut regulations and then go back to their businesses. At the same time it also means you don’t take government bureaucrats and vest them with experience and credentials and contacts and then let them jump out. Perry left less than a month ago, right? [Laughs]
Thomas: I dunno, I forgot that he left! [Laughs]
Andrew: The guy he’s been replaced with is such a no-name it’s not even in my show notes. Literally.
Thomas: Yeah.
Andrew: So you absolutely – Congress could pass a law and the President could promulgate an executive order that places restrictions on your ability to leave and go immediately get a job after government service. Designing that to withstand scrutiny would be slightly more challenging than you would think in the sense that there are lots of jurisdictions – we’ve talked about this before. California, for example, has a strong prohibition, it’s a statutory prohibition on generalized covenants not to compete.
Thomas: That’s kind of what I had in mind, actually.
Andrew: Yeah.
Thomas: It seems like it would be very difficult to write a law that would be fair and would be constitutional, that prevents people – it would just be hard to define what jobs you can and can’t get I would think, but maybe I’m wrong.
Andrew: But the District of Columbia follows the standard LBI model, which is the Legitimate Business Interest-
Thomas: Of course I know that model!
Andrew: [Laughs]
Thomas: Duh!
Andrew: I didn’t mean to insult your intelligence on that!
Thomas: [Laughs]
Andrew: Again, I’m way oversimplifying but in general, in the District of Columbia, if I hire you I can say when we part ways you won’t work for a competitor for two years within 30 miles of our office headquarters. Those kinds of clauses – and again, don’t take legal advice from a podcast-
Thomas: Would they be able to say “not even a Ukrainian company?” You can’t go work in another country? How would that work? Anyway, sorry, we gotta get onto the show but this is an interesting topic!
Andrew: We do. The bottom line is there are details that would have to be hammered out.
Thomas: Mm-hmm.
Andrew: The solutions may be imperfect.
Thomas: But you could do something.
Andrew: This is the exact opposite of what Donald Trump promised to do, it just is, and there’s no other way to put it other than the fact that “Drain the Swamp” has morphed into “I want death squads to track down Democrats and murder them in their sleep” which seems to be what people interpret it as now. But 100%, January 2017, that speech that Trump gave was about corporate profiteers and ending the pipeline (pun intended) of folks coming from the private sector, working for the government and then immediately leaving and cashing in as lobbyists and peddling influence. That’s what this was supposed to end, it has obviously made it way, way worse.
Thomas: So I think what you’re saying is we caught Trump in a lie! [Siren Noises] We need that – what is it that John Oliver does? We got him!
Andrew: We got him! [Laughs]
Thomas: We got him everybody! That was brilliant bit.
Andrew: Mission accomplished, let’s roll out!
Thomas: That was a brilliant bit to think of, I apologize I didn’t think of that sooner and I didn’t beat John Oliver to that!
Andrew: Yeah, you’re in charge of bits on the show.
Thomas: I know, I’m bit specialist! I also really wanna start a holding company! How does one do that? Can I have a podcast holding company?
Andrew: Yeah, I mean-
Thomas: I’ll take my answer off the air! [Laughs]
Andrew: [Laughs]
Thomas: Okay, let’s move on to the rest of the show. We’ve gotta talk about some less pleasant things.
Iran Strike Update and Background
[Segment Intro]
Thomas: So the strike in Iran, the assassination of Soleimani, there’s so much to talk about, so much in fact, as patrons already know because we made a little announcement on Patreon, by the way. Go to patreon.com/law so you get these announcements. We are going to do a bonus episode, a patron only episode. We don’t do those very often at all because we like everybody to get two free episodes a week, everybody has access to it, but occasionally there’s so much to talk about that we wanna take the opportunity to reward our patrons a little more so we are going to do a bonus episode on Iran, on international law, on war crimes, all that good stuff, and we’ve already gotten patron questions for that. You can go right now and check out that question thread.
In the meantime we are going to talk about the AUMF on the main show here, so why don’t you take it away?
Andrew: I wanna say a tiny bit of background on the Iranian strike because the reporting that’s been done [Sighs] We often joke, I’m trying not to scare the hell out of everybody every week. This should scare the hell out of you.
Thomas: Okay.
Andrew: In particular, I’m gonna link this in the show notes. The Washington Post spoke with a number of sources who basically have been quoted on the record as saying that Mike Pompeo went to Donald Trump months ago with the idea of coordinating a drone strike to take out Soleimani. That in the weeks beforehand he was meeting with Trump multiple times a day and that is essentially Pompeo and Pence who are calling the shots in this administration on foreign policy.
I’m going to read, this is not my supposition, this is the Washington Post. (Quote) “At every step of his government career, Pompeo has tried to stake out a maximalist position on Iran that has made him popular among two crucial constituencies in Republican politics-
Thomas: [Laughs] I can’t wait for the – racists and – oh, sorry I was just-
Andrew: “Conservative Jewish donors and Christian evangelicals.”
Thomas: Yeah, there you go.
Andrew: On diplomat says (quote) “If it’s about Iran, he will read it,” referring to paper that crosses Pompeo’s desk. “ If not, good luck.”
Thomas: Wow.
Andrew: Then – again, I want to explain this actual reporting. This comes from a doctoral dissertation, actually. Mary Lee Bigham-Bartline, May of 2018, doctoral thesis, demonstrates pretty conclusively in academic, peer-reviewed literature, that radical evangelicals believe that the biblical prophecy in 2 Peter 3:10, or as our President would say “two Peter 3:10”
Thomas: [Laughs]
Andrew: Says, “the day of the Lord will come as a thief in the night; the heavens shall pass away with a great noise, the elements shall melt with fervent heat, the earth also and the works that are therein shall be burned up.” Since 1945, premillennial dispensationalists like Mike Pompeo and like Mike Pence, have uniformly believed that that is a prophecy of nuclear war in the middle east. I share this, we talk on religious issues sometimes.
Thomas: That just sounds like hard science to me.
Andrew: [Laughs] You have people – I’m gonna link one more article in the show notes, I’m not gonna read the quotes from it. This is from Quartz, which is a business oriented journalism site. I checked them out on mediabiasfactcheck.com, which says that they are a left-center biased based on story selection and high for factual reporting.
Thomas: Hmm.
Andrew: Facts have a slight leftward bias, so that seems to play out. This is reporting from Heather Timmons in May of 2018, who warned us a year-and-a-half ago that Trump is listening to evangelical Christians who believe in the rapture, specifically calls out Mike Pence and Mike Pompeo and says that their foreign policy is driven by rapture theology.
So I think this is pretty solid evidence and obviously the problem here is when you believe that there is an inviolate biblical prophecy from the omniscient ruler of the universe that there’s going to be nuclear war in the middle east, you’re not too concerned about stopping nuclear war in the middle east because you get to go be caught up in the clouds and meet Jesus while everyone else is left behind.
Thomas: Hmm.
Andrew: Everything that I can see leads us to believe that Mike Pence and Mike Pompeo really believe these things.
Thomas: [Sighs]
Andrew: If that doesn’t terrify you I don’t know what will.
Thomas: We won the lottery on this! This has been, what, 2,000 years maybe more depending on which book of the bible it is, and now we just happened to be born when it’s all gonna happen?! Wow!
Andrew: Yeah, real soon!
Thomas: That’s pretty lucky! What are the odds of that?
Andrew: Imagine that!
Thomas: Any time from the year 0 – which didn’t exist, as we covered-
Andrew: [Laughs]
Thomas: To however long humans go and we happen to be?!? Incredible. What a time to be alive.
Andrew: So that’s just a little bit of [Sighs] background that I did prepping for the show and the bonus episode. The question I specifically wanted to tackle on today’s episode is the question of the 2001 AUMF, that is the Authorization for the Use of Military Force post-9/11. There’s also reporting, this came from Mike Lee and I can only imagine that it is a typo or a failure to accurately transcribe-o? I don’t know what you’d call that.
Thomas: [Laughs]
Andrew: But Republican Senator Mike Lee, you’ve probably seen, blasted the administration’s briefing yesterday and said that it was insufficient to justify the assassination of Soleimani and he said that the administration was relying on the 2002 AUMF. That makes no sense, so this is gonna be a twofer.
The 2002 AUMF could not possibly justify targeting Soleimani. That is 100% dedicated to the invasion of Iraq and taking out Saddam Hussein. The post-9/11, the 2001 Authorization for the Use of Military Force, however, you can make this argument. Let me read the relevant section, that is Section 2. And it follows a whole bunch of “whereas” clauses. Whereas, we got bombed on 9/11 and whereas we’re super pissed about that, therefore be it resolved, and then Section 2:
“IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Thomas: Or… have a religion that we don’t like.
Andrew: Yeah, and let’s be super clear on the religion. General Soleimani is a Shiite Muslim, Al Qaeda is a Sunni Muslim organization, so they’re not the same religion. That difference is super, duper important in the middle east. There is absolutely no connection between Soleimani and Al Qaeda. The 9/11 commission report does not name Soleimani.
Mike Pence’s initial argument was [Laughs] He said that Soleimani (quote) “assisted in the clandestine travel to Afghanistan of 10 of the 12 terrorists who carried out the September 11th terrorist attacks in the United States.” The only problem with that is, as everybody pointed out a second later, we were slightly late on Twitter in the rapid response being first to buzz in category. There were 19 terrorists on September 11th, not 12. Later Pence’s spokeswoman, Katy Waldman said what he meant to say was that 12 of the 19 terrorists traveled through Afghanistan and of those, 10 were assisted by Soleimani.
Thomas: What he meant to say was something not at all related to the thing he said, is what you’re saying?
Andrew: Yeah. When asked for evidence that 10 of the 12 terrorists were aided by Soleimani, Ms. Waldman circulated an April 2019 fact sheet by the State Department. That April 2019-
Thomas: [Laughs]
Andrew: See I gotta write “2020” on all my checks!
Thomas: Make sure to put the, yeah! [Laughs]
Andrew: [Laughs]
Thomas: Write the full year!
Andrew: That April 2019 fact sheet, despite being drafted by Mike Pompeo’s Department of State, just says that Iran’s Islamic Revolutionary Guard Core, the IRGC, which includes the Quds force which Soleimani was the head of, is a terrorist organization. It does not in any way say that the Quds force aided the 9/11 hijackers, and also like the 9/11 commission report, it does not name Soleimani at all. It would not have been hard to name Soleimani! He was the head of the Quds force. So the evidence they have here is really, really super bad.
Oh, one more thing? Just in terms of whether it is remotely possible that General Soleimani would have been aiding Sunni terrorists? This is from Voice of American News, it says that Sunni Muslims were celebrating the death of Soleimani after the United States assassinated him because in Syria “Soleimani is remembered for the recruitment of Shiite fighters and presiding over massacres of Sunni civilians in the suburbs of Damascus.” (End of quote). So this guy is a butcher of the type of Muslim that carried out 9/11.
Pretty slender read to say no but he’s really secretly helping them, [Sighs] however I read you the language and I will tell you that in 2014 Obama used the 2001 AUMF as the legal basis for striking ISIS targets in Iraq even though there is, as the administration conceded, zero overlap between the leadership of ISIS and the leadership of Al Qaeda. The idea was a sort of six-degrees of Kevin Bacon- you know, some of the people in ISIS recruited some of the people here who knew some of the people here who’s cousin went to Canada-
Thomas: So basically any target in the middle east is fine based on this logic.
Andrew: The AUMF says that the President believes. That the President is authorized to use all necessary and appropriate force that he determines-
Thomas: Hmm.
Andrew: -against nations, organizations, or persons-
Thomas: When that kind of language is written in a law, what does that mean? Can you just say yeah, as long as you have a notepad that has a few, like Al Qaeda and then an arrow and the Soleimani, I determined.
Andrew: Yeah.
Thomas: But really, seriously, legally speaking if a law has that language what is the standard there? Is there any standard that you have to meet?
Andrew: Yes. This is the same threshold as the rational basis review that we’ve talked about. It’s the same threshold as the compliance with the Administrative Procedure Act.
Thomas: Is it a fog mirror test?
Andrew: Yeah, it’s a fog mirror. I will point out that Trump has lost some of these fog mirror lawsuits.
Thomas: [Laughs]
Andrew: It is astonishing, but the question is do you have some plausible minimal evidential support?
Thomas: I love the idea that he’s so incompetent they’re like “you win this lawsuit if I hold this mirror up to you it fogs up and you win” and he just doesn’t breathe for some reason? He just holds his breath and they’re like “Mr. Trump, you just have to breathe and you win!” No, not gonna do it! [Laughs]
Andrew: [Laughs] It’s like the old Celebrity Jeopardy with Burt Reynolds.
Thomas: Yeah! [Laughs]
Andrew: Our friend Norm MacDonald, yeah. Just name – this is the sound a doggie makes!
Thomas: Yeah!! [Laughs] But you’re absolutely right, he has lost some of those Celebrity Jeopardy on SNL questions.
Andrew: Yeah.
Thomas: He’s gotten some of them wrong.
Andrew: So yes, and let me say this, matter of the law going forward. I do not think a court would issue an injunction prohibiting the President from engaging in additional drone strikes against Iran.
Thomas: Wow.
Andrew: I don’t think there’s the basis for the lawsuit. I think if the administration had to defend that in court, obviously separation of powers would be their key argument but they would argue that they have authorization from the 2001 AUMF.
Gosh, this is a slight detour but I think it’s worth pointing out because right as we went to press there was an unbelievably stupid statement from Sarah Huckabee Sanders that was re-tweeted out by Justin Amash, our favorite far right independent congressman in which Sarah Huckabee Sanders says [Impersonation] “I can’t think of anything dumber than allowing congress to take over our foreign policy.”
Thomas: [Laughs]
Andrew: Which allowed Justin Amash to tweet out – [Laughing] He’s really good on these! “Sarah Sanders can’t think of anything dumber than the constitution.”
Thomas: Yup.
Andrew: Which is true. The constitution historically vests the power to wage war in the Congress. For 80 years we have been chipping away at that power and concentrating it in the hands of the President, it’s why I wanted to do this segment on the main show. Stop voting for things like the 2001 Authorization for the Use of Military Force! That passed the Senate 99 to 1 by the way. This is what happens when Congress broadly delegates because they think they have to because of the rally around the flag effect. This is what happens. 20 years later you elect a criminally insane gameshow host as President and he uses it to commit war crimes. Maybe stop doing that!
Thomas: Yeah, or we need to repeal this, right?
Andrew: Yeah, yeah!
Thomas: We need to get rid of the AUMF.
Andrew: Yes.
Thomas: Now, what, 19 years later? 18 years, whatever it is? It doesn’t apply anymore, we’ve gotta get rid of it.
Andrew: Absolutely. Absolutely.
Thomas: Alright, well that’s what we have for today on the Iranian news, but like we said there’s gonna be a bonus episode for patrons only, go hop on patreon, it’ll be out probably in the next day and, just to give an example and also I have to read this patron name because it’s fantastic. Just an example question here, scrolling through them, Andrew will answer questions such as [Laughs] from P. Andrew Taurus Brings Enough Evidence to Moooo the Noodle. [Laughs]
Andrew: [Laughs]
Thomas: From that patron, “So targeting historical sites, is it really a war crime and what are the U.S. and international remedies?”
Andrew: Oh, so you gotta let me answer! [Sighs] Alright, never mind.
Thomas: Can’t, sorry!
Andrew: I’ll wait.
Thomas: It’s gonna be on the bonus episode.
Andrew: Okay.
Thomas: I can’t wait, we’re gonna do that next.
[Commercial – policygenius.com]
Thomas: Okay, time to move on to our … main… segment? 30, 40 minutes into the show? Impeachment news, yodeling? Start your yodeling engines, Brian!
Yodel Mountain – John Bolton Will Testify
[Segment Intro]
Thomas: Are we still yodeling? It’s impeachment, we gotta yodel! Okay, we yodeled and what’s the latest impeachment news?
Andrew: Yeah, here’s the latest impeachment news, maybe by the time you are listening to this but certainly soon thereafter I think the impasse between Nancy Pelosi and the Senate will be broken.
Thomas: Really?
Andrew: Yeah, I do. As a backstop, Josh Hawley – and if that sounds like a fake Senate name to you which it definitely did to me, that’s the dude who beat Claire McCaskill in Missouri.
Thomas: We have a Senator Josh?
Andrew: We have a Senator Josh Hawley.
Thomas: Huh.
Andrew: I don’t even know if he’s related to the Smoot-Hawley tariff guy.
Thomas: [Laughs]
Andrew: Yeah, a complete nobody and a nice little aside for the official Opening Arguments is vote blue no matter who. Lots of people were like Claire McCaskill – look, this is what happens when Claire McCaskill loses. You get a pro-Trump Hawley in the Senate who introduced a resolution. It has not been taken up yet, but the resolution would update the Senate rules to allow a Motion to Dismiss with Prejudice any articles of impeachment for lack of prosecution that are not turned over within 25 days.
This is totally unprecedented, but unlike the “John Roberts can save us all” episodes, setting the procedural rules is still pre-impeachment. Those are the ground rules, it’s before impeachment begins and what that means is Mike Pence can cast the tiebreaking vote.
Thomas: Oooh.
Andrew: So you need four Republican defectors, not three, and John Roberts doesn’t preside yet so you have a full howler monkey Supreme Court and not a potentially split 4-4 Supreme Court. So at the end of the day, the Senate is going to adopt rules and they’re going to do [Sighs] what I said they were gonna do way back when we first started talking about impeachment.
Mitch McConnell has said that he’s going to follow the Clinton blueprint. That is, they’re gonna have opening arguments then they’re going to potentially permit a Motion to Dismiss after the opening arguments. We mentioned this as a possibility, we mentioned this as following the rules. The important thing is that once the opening arguments begin the dynamic I just described changes. Now ya don’t need four Republicans, you only need three, and you have the potential that a Supreme Court could be evenly divided if John Roberts recuses himself which would allow to stand a decision by the D.C. Circuit Court of Appeals.
So you have the potential to block out the advantages that Republicans have once the impeachment trial actually begins. I will tell you so far only Mitt Romney has said that he wants to hear from witnesses.
Thomas: Well that’ll do it!
Andrew: That is the only Republican vote that we have against an initial Motion to Dismiss. It means you’ve gotta get two, it means that you have to persuade Susan Collins and Lisa Murkowski probably to vote against an initial Motion to Dismiss. Here’s why we ought to be able to do that. This is a really, really significant piece of information that I have not seen get a lot of traction. It is a public statement from John Bolton. Okay?
We discussed how Congress had issued a subpoena to Charles Kupperman, who was Bolton’s assistant, and then as a result declined to issue one to Bolton because they were worried about litigating it out. Here’s what Bolton said two days ago. (Quote) “After my counsel informed the House committee that I too would seek judicial resolution of these Constitutional issues,” that is whether he has to comply with the subpoena, “the committee chose not to subpoena me. Nevertheless, I publicly resolved to be guided by the outcome of Dr. Kupperman’s case.”
Then he describes the case which we described two weeks ago and says “The House has concluded its Constitutional responsibility by adopting Articles of Impeachment related to the Ukraine matter. It now falls to the Senate to fulfill its Constitutional obligation to try impeachments, and it does not appear possible that a final judicial resolution of the still-unanswered Constitutional questions can be obtained before the Senate acts.
Accordingly, since my testimony is once again at issue, I have had to resolve the serious competing issues as best I could, and based on careful consideration and study I have concluded that, if the Senate issues a subpoena for my testimony, I am prepared to testify.” (End of quote).
Thomas: Right on time, huh? Couldn’t have been prepared when the House was doing this whole thing? Okay.
Andrew: Look, it would have been great if John Bolton had testified before the House impeachment inquiry committee. It is really, really significant that the former National Security Advisor, that somebody we know has direct information relevant to this impeachment, is willing to testify. If the Democrats are not making that the focus of the reason why Republicans should not vote for an early Motion to Dismiss then they’re making a massive mistake.
I will say this to you. If you are an Opening Arguments listener, whatever State you’re in, call and write your Senators and tell them you want to hear from John Bolton during impeachment.
Thomas: Cool! Let’s do it.
Andrew: Senators care about letters and phone calls. Their staffers add them up, we’ve talked about this before. I can’t promise that this is gonna – right, you live in South Carolina we know what Lindsey Graham’s gonna do so if you’re not donating money to Jamie Harrison’s campaign and working for him then shame on you. I get it, it’s easy to say that everybody has made up their minds. The electoral process is how we bring pressure on folks, so bring that pressure.
I really, really wanna hear what John Bolton has to say and I kind of feel like that’s something that at least some Republicans do as well.
Thomas: Never thought I’d hear the day when you really wanna hear what John Bolton has to say! [Laughs]
Andrew: I know, I know! [Sighs] Oh, good ol’ Walrus Mustache!
Thomas: [Laughs] Okay, well that’s the end of yodeling?
Andrew: Yeah, that’s the end of it for now!
Thomas: Okay, cut it! Stop the yodeling!
Kupperman v. CNN Lawsuit Settlement
[Segment Intro]
Thomas: It’s time for our final segment on – psh, I saw that there was a settlement with a Covington Catholic kid, that guy that instantly was able to go on every channel on TV and we were able to hear his story, his side of things, uh after he … I dunno. How long has it been? A year? More than a year since this whole?
Andrew: It has been almost exactly a year.
Thomas: Wow.
Andrew: It was January 2019 and this kid, Nick Sandmann and his buddies from Covington Catholic were all wearing MAGA hats at the Indigenous People’s March at the Lincoln memorial. The first video that came out we saw Nick there smirking and what appears to be mocking one of the Native American marchers and you could see his buddies jumping around in the background. That video went viral and everybody was like [Sighs] why are these kids wearing MAGA hats to an Indigenous People’s Rally unless-
Thomas: Well they weren’t. They were going to a pro-life rally.
Andrew: Yeah. So that story came out, that’s what they did, he came out, we were going to a pro-life rally and we were walking through, the second video came out and there were other groups yelling at us and everything else. Again, at the end of the day, CNN’s reporting was truthful and these individuals fall in within the category – this was legitimate news reporting.
There was a person interviewed and CNN was super careful in posting the video, they interviewed a person named Kaya Taitano who shot the video who said “the teens were chanting ‘Build the wall’ and ‘Trump 2020’” at the Indigenous People’s March, but CNN notes those chants were not audible in videos reviewed by CNN. So again, standard journalistic practice, the kids looked super bad well, you know, maybe don’t show up – whatever, people can decide for themselves.
Thomas: Yeah, I thought none of this should have been a news story at all, but whatever.
Andrew: Yeah, I think that’s fair. Two months later Nick files a $250 million defamation lawsuit against the Washington Post, that was dismissed, and a $275 million lawsuit against CNN for defamation. We told you that that was total nonsense and the fact that the Washington Post lawsuit – which is identical – got thrown out is pretty good indication that we were right on that, but then you might then say, “well Andrew, why did CNN settle this lawsuit today?”
The answer is almost certainly legal fees. The settlement is confidential, presumably pursuant to its terms because we can’t find it, it’s not out there, and here’s what we do know. We know CNN has not issued an apology to Nick Sandmann.
Thomas: Yeah.
Andrew: And crucially if the video was defamation, that’s the gravamen of the Complaint, the video is defamatory, I’m gonna link it in the show notes. You can still go see the very first video that they uploaded. Again I will tell you, as somebody who litigates these cases I have never seen a defamation lawsuit get settled on terms favorable to the Plaintiff that did not have as criteria number one, well you gotta pull down the defamatory thing.
Thomas: [Laughing] Yeah.
Andrew: That’s the thing you want. The damages are incidental. My belief is, again 100% supposition, my belief is that Sandmann’s lawyer went to them and was like “I can keep litigating this as long as you want, you wanna give my client a nuisance settlement and we’ll drop the lawsuit and go away?” and CNN’s lawyers were like hey, do we wanna keep fighting a high school kid?
Thomas: Yeah.
Andrew: And CNN was like “no, fine, whatever, pay him and go away but we’re not pulling the video, we’re not saying we’re sorry, we’re not saying we did anything wrong” and in fact they have not. So there you go.
Thomas: We don’t know the details of the settlement.
Andrew: Yeah, confidential settlement because as we’ve discussed way back when Stormy Daniels is a Legal Genius, it’s totally common-
Thomas: So it sounds like a privileged white conservative used his – a rich, well-off white conservative kid used that privilege and wealth to get more privilege and wealth?
Andrew: Yeah, to get some money from CNN, yes, exactly.
Thomas: What a stupid thing. But yeah, so I guess important to note but that does seem pretty significant that they didn’t take down anything, like you say it’s a confidential settlement so we don’t know, however given that nothing really substantial was done, no apology, none of that, it’s probably just a nuisance settlement.
Andrew: I think that’s right and I think that’s important because we cover this from time to time, it’s part of why when I make predictions about the outcomes of civil lawsuits I always leave the possibility of a settlement out there on the table. Look, I will tell you when I’m shocked by the evaluation of a lawsuit. We’ve talked about Maajid Nawaz’s defamation lawsuit-
Thomas: Yeah, I was gonna bring that up.
Andrew: -against the SPLC and I confidently said this is going away as a nuisance settlement but it’s not meritorious and the SPLC paid him, I believe, $2.8 million. I said yup, okay, we definitely had very different views of this lawsuit because I certainly didn’t see it going anywhere.
Thomas: I’m still very confused by that whole thing.
Andrew: Yeah, me too. [Laughs] This is 100% consistent with what we’ve been telling you, again, on the basis of the information we have. We dunno, CNN could’ve given him $100 million, but I would wager all of my life savings and worldly possessions that [Laughing] CNN did not give this guy $100 million.
Thomas: [Laughs] Yeah. Although they could’ve been like, “you know what? We’re rakin’ in so much money from the Trump era that, fine. Blank check, fill in the number yourself, kid!” Anyway, alright, well that’s our main show!
It’s time to thank our new patrons here on First Timer Friday, patreon.com/law, people who will be enjoying the bonus episode coming out tomorrow, bonus extra episode, and as if that weren’t enough, Andrew Torrez, Law’d Awful Movies comin’ at you within the next week if you’re at the $2 level.
Andrew: Oooh!
Thomas: That’s always a lot of fun. Seriously, Law’d Awful Movies is so much fun and you learn too. It’s funny, it’s fun, we poke fun at usually badly written stuff, but also we learn a lot about the law. Andrew teaches us stuff, it’s a good time. All those are great reasons to hop on. Now let’s thank our new patrons!
[Patron Shout Outs]
Andrew: Alright!
Thomas: Alright, coloral – now I can’t even-
Andrew: Corollary.
Thomas: Corollary, yeah. Okay! [Laughs] Corollary boy! Thesurus Man! That’s our superhero [Laughs]
Andrew: [Laughs]
Thomas: In fairness to you it could be Corollary Man and Thesurus Boy, I’ll be your sidekick anytime, Andrew.
Andrew: Aww.
Thomas: That’s our superhero – well I mean we have Optimist Prime and Negatron is a little more badass than those two names.
Andrew: Yeah, just a bit!
Thomas: Yeah, it’s like the Spongebob equivalent, anyway. Okay!
Andrew: There’s a spectacular episode of the old cartoon Tick that took place in, there was a nightclub for superheroes.
Thomas: The 90s?
Andrew: And then like a little barn for sidekicks. It was really funny.
Thomas: [Laughs]
Andrew: Anyway.
Thomas: Nice.
Andrew: Moving on!
Thomas: Alright, it’s time for T3BE, Brian, punch it!
T3BE – Question
[Segment Intro]
Thomas: I gotta tell Brian to punch it every episode, it’s just too much fun. Alright we’ve punched it and it’s time for T3BE, I think I’m on an improbable, I dunno, one or two question streak!
Andrew: Yeah, I think it’s one.
Thomas: Okay.
Andrew: Before we read the question I have to tell you, Rosalie Galloway wrote in in response to the last T3BE question and said “I’m a chef working at a hotel in Michigan, the quantity in flour in the question was 10,000 lbs. of flour every Monday. As an industry professional this tells me exactly what kind of bakery this is. It is a commercial supply bakery, likely shipping frozen whole loaves in cases of 8-16 loaves per case.”
Thomas: Yeah.
Andrew: We don’t have time, this is such a delightful email.
Thomas: I swear to you I was going to make the point that that’s so much flour they must be just shipping, we were already going on so long I didn’t bother.
Andrew: Anyway Rosalie, thank you so much for writing in and explaining the commercial bakery operations and validating again law school LSAT – not LSAT, bar exam questions. Once again, lawyers are smarter than everybody else, Rosalie proves it.
Thomas: Woah, wow. Okay.
Andrew: Now, this week’s question. Thomas, Congress enacted a statute prohibiting discrimination in the rental-
Thomas: [Laughs] Yeah right.
Andrew: -of residential property anywhere in the United States on the basis of sexual orientation or preference by any person or entity public or private. Which of the following provisions-
Thomas: Oof.
Andrew: -provides the strongest basis for Congress’ authority to enact the statute?
Thomas: [Groans] [Sighs] This is gonna be a tough one.
Andrew: A) The enforcement clause of the 14th Amendment; B) The privileges and immunities clause of Article IV;
Thomas: [Laughs]
Andrew: C) The commerce clause of Article I, Section 8;
Thomas: Oooh! Commerce clause.
Andrew: Or D) The general welfare clause of Article I, Section 8.
Thomas: Interesting, interesting question.
Andrew: Love this question, totally straightforward.
Thomas: Yeah I love this question ‘cuz it’s an opportunity to really embarrass myself. Just my knowledge. You know what I probably should have done going into this podcast where I try to answer law questions? I dunno, skim the constitution. [Laughs]
Andrew: [Laughs]
Thomas: I have no memory for where things are, I get the general vibe of the thing, you know, I’ve got the vibe of it but I have no memory. These could all be trick answers. The numbers could all be switched and I would not know. This is why I can’t be a lawyer, I have no mind for which Article things are in. I just cannot retain that information. I can usually retain what the things are, more or less, but these could all be trick answers and I wouldn’t know.
So a statute prohibiting discrimination in the rental of residential property anywhere in the United States. I think that’s the important – so it’s rental of property. Going through I already think I have my favorites here. A, the enforcement clause of the 14th Amendment. Okay [Mumbles] I think that sounds like a plausible candidate.
B, the privileges and immunities clause of Article IV. That one I don’t. [Sighs] God this is so embarrassing. That doesn’t sound right to me. This is basically gonna be using the force to try to answer this one.
C, the commerce clause! Okay, commerce clause is always a good guess because, we’ve talked about, there’s always some way that these things impact interstate commerce so C is definitely, definitely plausible.
D, the general welfare clause of Article I, Section 8. [Inhales and Exhales deeply] I mean I don’t think so. I’m really leaning toward A and C and I dunno, I just think that based on my knowledge of how this kind of stuff has happened which could totally be wrong, it seems like the commerce clause has been instrumental and the interpretation of the commerce clause was instrumental in a lot of the civil rightsy kind of laws that were passed so C is really jumping out at me. Cuz you know, renting property, you could rent stuff from another State. I could rent something in, I dunno, Nevada and that’s interstate commerce and maybe that’s a good way to do it?
So I’m between A and C, I’m gonna just go ahead and go with C because it seems like the commerce clause is usually the way these things are done, so my answer is C but who knows? [Laughing] Could be any of ‘em!
Andrew: [Laughs] Way to lobby support to your side, Thomas!
Thomas: I dunno, this is not – this is like the worst question for me.
Andrew: [Laughs]
Thomas: I really don’t have any idea. I’m bad at this stuff, so… C is what I’m going with.
Andrew: Alright well Thomas picked C, you know how to play along. You can pick C like Thomas, you could pick some other thing, who knows? Share out this show on social media, include the hashtag #T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: [Laughs] Alright, thanks for listening everybody and we will see you, patrons, probably tomorrow!
Andrew: Yeah!
Thomas: Can’t wait. We’ll see everybody else on Tuesday.
[Show Outro]