Listen to the episode and read the show notes
Topics of Discussion:
- GOA Report
- Introduction of Impeachment Managers
- The President’s Legal Team
- Causes for Optimism
- Parnas Testimony
- Potential Republican Defectors
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments, this is episode 351. I was so excited by the new intro music that we definitely all just heard even though I have to make it after we’re done recording.
Thomas: How’s it going, Andrew?
Andrew: It is going fantastically well. How are you, Thomas?
Thomas: Good. You know it’s just time machine stuff that we do here on podcasts. I can’t wait to make that new thing. We’ve got so much to talk about. The news is just unbelievable, Andrew. I do wanna toss out a quick plug for Law’d Awful Movies that we just did.
Andrew: Oh, yeah!
Thomas: Oh, so much fun. Pelican Brief.
Andrew: [Laughs] Back to our roots but not-
Andrew: I mean we’ve been doing a number of, you know, arguably legal movies and you and I sat down, we were like fine, we’ll do a John Grisham.
Andrew: We’ll do the Pelican Brief. Spoiler, turns out-
Andrew: Not a brief!
Thomas: Not a pelican, nor a brief, it’s like that old-
Andrew: Neither holy, nor Roman.
Thomas: [Impersonation] Rhode Island is neither a road nor an island, discuss!
Andrew: Yeah! [Laughs]
Thomas: It’s like that, it’s unreal, it’s so much fun so go check that out. Law’d Awful Movies, patron.com/law. Then of course if you haven’t, check out the bonus Iran episode. It is very, very informative. A full packed hour of extra stuff, so definitely check that stuff out. But I don’t wanna delay because we’ve got so much to get to and I’m just seeing on the spreadsheet here a number of bullet points and subheadings, that I know means-
Andrew: And sub-bullets, yeah. Do you think we’re gonna get to segment B(5)(a)? Yes.
Thomas: [Laughs] Exactly.
Andrew: Yes we will.
Thomas: Which I know means Andrew will barely get through it in time, so we should get to it.
Thomas: So anything to say for you before we-
Andrew: Yeah, couple pre-segment things. Number one, I wanna give everybody a plug for the latest Serious Inquiries Only where you and Jamie broke down the last Democratic debate. You know, a number of folks said are we gonna comment on it on OA and you guys did a great job commenting on it already, so folks should go check that out.
Thomas: And it’s fun ‘cuz I’m a Warren fan, Jamie’s a Bernie fan so it’s a good dynamic. But we’re trying to, you know-
Thomas: We bridge the gap a little bit. Peace be upon you, everybody.
Thomas: All Democrats.
Andrew: That’s a good, yeah, good message. Good message. Also I am very, very excited. We try, particularly on Tuesdays, not to have the show be all Trump all impeachment all the time.
Andrew: Spoiler, today is gonna be about impeachment!
Andrew: But one of the things that kind of slipped beneath the radar is this omnibus tax bill that gets passed and appropriations bill that gets passed in late December every year. It’s usually terrible. There’s a provision in this year’s appropriations bill called the “Secure Act,” and it was a provision-
Thomas: Oh, that sounds good. Secure.
Andrew: Yeah, yeah.
Thomas: I wanna be secure.
Andrew: Well it’s about financial security. It was a provision promoted by Democrats and held up by the worst villains in the Senate, including our buddy Ted Cruz.
Thomas: Oh, so it’s actually a good-
Thomas: Okay, good, I wasn’t sure if it was another double-speak kind of bill.
Andrew: [Laughs] They usually are.
Thomas: The American Freedom Bald Eagle Act.
Thomas: Which is actually about imprisoning every man, woman, and child who’s not white, or something.
Andrew: [Laughs] Right, exactly. So we’re gonna turn to friend of the show, Phil Ferguson to break down the financial implications of the Secure Act and we’re gonna do that on Tuesday. I’m very, very excited about that.
Andrew: So with that in mind, we kinda have a few things to get to!
Thomas: Yeah, definitely. Alright, well, for the Optimist Primes among us, Andrew has at least had the sense to put this all in one big segment even though there’s subheadings and subtopics and all that, but I don’t see any C segment that you’re thinking you’re gonna get to.
Thomas: So here we go, let’s talk impeachment. Brian, hit it, let’s yodel, here we go!
Yodel Mountain – Impeachment
Thomas: Alright we’ve yodeled. Yeah, crazy stuff. I was listening the The Daily and there’s all these weird rules for the Senate impeachment proceedings that are kinda cool that I dunno we’ll have time for, but stuff is happening. We’ve got that Parnas interview, ah! Where do you wanna start, Andrew?
Andrew: Why don’t we start by patting ourselves on the back.
Thomas: Ooh, that’s a great place to start!
Andrew: Yeah. Exactly one week ago we told you, Nancy Pelosi and the House of Representatives would transmit the articles of impeachment early next week and that’s exactly what happened. I think things played out politically in exactly the way that we described and I feel super good about that.
In connection with that now, okay, so we are recording this literally as the Senate is being sworn in, as John Roberts is taking the oath and being sworn in as the presiding judge over the impeachment trial, and the question we’ve been asking since the impeachment inquiry began is how much is McConnell gonna McConnell this up? The real debate right now is whether the Senate is going to allow actual testimony or whether they’re just gonna go through, have opening arguments, and then take an immediate vote on a motion to dismiss. That procedure was offered up in the Clinton impeachment, so taking the vote is not a McConnell breach of protocol like stealing a Supreme Court seat. Far be it for Opening Arguments to defend Mitch McConnell, but that is appropriate.
So then the question is, are there Republican Senators, at least three with an asterisk, four to lock it down, who are going to vote in favor of hearing testimony? The developments this week, Parnas and in particular what I wanna start off with, are developments that are likely to push folks in the direction of requiring testimony.
You wanna Negatron it you can say nothing matters to any Republican and I can’t tell you that’s an insane thing to say. [Laughs] But I can give you the best case scenario about what these developments mean and how likely they are to push us in a direction towards having an actual trial instead of just having a sham trial.
So why don’t we start off with the thing that scrambled my white board this morning?
Thomas: Alright, well what scrambled your white board this morning?
Andrew: So an official decision came down from the nonpartisan Government Accounting Office.
Thomas: Oh right.
Andrew: Yeah. [Laughs]
Thomas: It was like, do we need to say this? You guys know this, right? You all know this… I guess we need to say it.
Andrew: [Laughs] That’s how it’s hitting the press. Just to be clear for our listeners, the press is reporting the introductory paragraph from the digest. I gest why they’re doing that, they’re doing that because this was written with a little prese at the beginning and you’re racing out to break news as quickly as possible so you read it. Also reading it is pretty significant, it’s got good rhetoric and it makes for a good soundbite.
Here’s what it says, this is paragraph two: “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act. The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.” Saying “at the Presidents direction an executive agency broke the law,” I get why that is the headline they’re running with.
To me, that misses the real point that’s buried.
Andrew: The multiple points that are buried within this decision, because that conclusion is something we told you months ago on the show. We told you back in episode 324 the way the Impoundment Control Act works and that there was no justification, there was no attempt to comply, with the Impoundment Control Act. To do ten seconds on that, essentially there are two separate that allow an executive agency that is tasked with disbursing funds – that authorization comes from Congress, this is a legislative function, but it is delegated to administrative agencies.
There are two provisions in the law that allow an administrative agency to say okay, you told us to do X and spend this money in this particular way, but we can’t right now for two reasons. The first is if there is a belief that that should be rescinded. That is § 683 and, look, this was floated around back in October, November as a potential justification but it’s patently obvious there was never any communication to rescind.
The way in which you rescind is you say oh, Congress wants to accomplish X objective, but in the intervening time after they passed it Y event occurred and so now you don’t need to spend the money to accomplish these objectives and the President has to prepare a special report and go back to Congress, and then Congress has to vote to rescind the funds. They have to pass a resolution of rescission. Obviously none of that happened, that’s not remotely relevant.
The second way in which an agency can withhold funds under the ICA is to defer. That’s the next subsection, subsection 684. That has two specific requirements: subsection (a) requires the President, uses the phrase “shall transmit” a special message to Congress that lays out six different things. No message was ever transmitted, none of those things were ever met.
Even if the President does that, a deferral is only permitted in three circumstances, these are set out in subsection (b). Number (1), to provide for certain contingencies; number (2) to achieve savings through changes in requirements; or number (3) as specifically provided by law. Then it says, as directly as any law says, (quote) “No officer or employee of the U.S. may defer any budget authority for any other purpose.” (End of quote).
You may recall that OMB and the Office of White House Counsel have not even attempted to offer any of these justifications. Their justification is “yeah yeah yeah, we know that Congress wanted us to send money to Ukraine but we needed to make sure that they weren’t corrupt first.” That’s not a permissible reason to disregard Congress. Congress gets to vote how much money to send to Ukraine, Congress gets to debate how corrupt Ukraine is, and when Congress makes a decision the President doesn’t get to say “I know the legislature said we’re gonna do X, but uhhhh, how ‘bout not?”
Andrew: That’s why that part of the decision is super easy. Again, that decision says, pretty much exactly the way I summarized it. OMB did not identify, either in its apportionment schedules or in its response to us, any contingencies recognized under the act, any savings or efficiencies, or any law specifically authorizing withholding. They said that the withholding was necessary (quote) “to determine the best use and to ensure that the funds were not spent in a manner that could conflict with the President’s foreign policy.” That’s what Mick Mulvaney said they were doing, and that’s just not permissible by law.
Okay, I guess it’s nice to have a black-and-white they broke the law. There are really two parts of this opinion that I think are significant. The first is, it also refutes the argument that OMB and the President were making that you would have otherwise heard during impeachment, which is “no, no, the Impoundment Control Act doesn’t apply in this circumstance. There’s no law here to operate because we have what is called (quote) ‘a programmatic delay’ (end of quote). “ Think about how that works. If you have some external circumstance that stops an executive agency from spending the money, you don’t wanna say you’re violating the law. You wanna say, look, right, we get it.
There are a lot of really easy examples of how that could happen. Suppose that after Congress authorizes expenditure there is a subsequent emergency measure and bank assets are frozen, for example.
Andrew: Or there’s an emergency allocation out of the fund and the money’s not there because of other stuff that happened on the outside. There you might say, a government agency might say, oh yeah, you gave us $20 million to spend on this, but in the intervening time there was this emergency – a hurricane struck-
Thomas: Or like you need to build a useless wall.
Andrew: [Laughs] Yeah, a real emergency like building an easily circumventable wall. Right, a hurricane strikes and we were directed to send all available funds to help fortify levies and bail out people who were starving in Louisiana, so you know what? That means we don’t have that money anymore because we spent everything. That would be something that could be a programmatic delay.
Thomas: Gotcha. So an allowable kind of exception to the rules.
Andrew: Yeah, exactly, and the law just doesn’t apply when there is an exception to it.
This opinion cites to [Laughing] a number of things, but the seminal GAO opinion on programmatic delays comes from 1991. As proof that monsters have been with us for a while, this involves then-Secretary of Defense Dick Cheney.
Andrew: Here’s what happened: In November of 1990, as part of the first Gulf War, and the segment called Operation Desert Shield, Congress authorized money for building stuff (quote) “in or around the Arabian Peninsula in support of Operation Desert Shield.” So you’re building these temporary army bases and stuff and we had overfly rights, for example, in Saudi Arabia, so we constructed temporary air fields and then landed bombers on those temporary air fields in order to conduct bombing raids into Iraq.
Prior to that authorization there was a moratorium on building stuff in the Arabian Peninsula.
Andrew: That was renewed time and time again, it was kind of an internal policy and Dick Cheney renewed that moratorium through April of 1991. So you had the exact same situation. You had Dick Cheney saying “I don’t want us building stuff in Saudi Arabia,” and you had Congress authorizing a bill that said “we want you to build stuff in Saudi Arabia.” Dick Cheney raised this exact same argument. He was like “oh, I know the Department of Defense didn’t release the funds ‘cuz I told them not to, but that was a programmatic delay, I wasn’t violating the ICA, we just … programmatic delay,” and the GAO said, yeah, that’s not what a programmatic delay means.
Andrew: They said no, you can’t do that. When Congress tells you to spend the money, spend the money whether you think it’s a good idea or not.
Here’s the language : “We do not agree with the Department’s position that the withholding is a programmatic delay. Programmatic delays occur when an agency is taking necessary steps to implement a program even if funds temporarily go unobligated.”
Thomas: When there’s some sort of delay …. programmatically.
Andrew: [Laughs] Yeah, that’s right!
Thomas: Conclusion you can jump to!
Thomas: In the name.
Andrew: And that language is reiterated here in this opinion. Here’s what they say – now we’re jumping back from 1991 to the present. “OMB’s assertions” (about the Ukraine funds) “have no basis in law… programmatic delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, the funds temporarily go unobligated. This presumes, of course, that the agency is making reasonable efforts to obligate. Here, there was no external factor causing an unavoidable delay. OMB on its own volition explicitly barred DOD from obligating amounts authorized by Congress.”
I think that will probably start hitting the news, probably about the time that you hear this.
Andrew: But in my view, far more significant that the kind of top line conclusion, because in addition to saying “yup, he obviously violated the Impoundment Control Act,” and by the way the excuse you’ve been giving for doing that is also nonsense and has been nonsense for 30 years. I think that is takeaway number one from this.
Takeaway number two, and the only person that I have seen who’s picked up on this is someone I greatly respect, Maryland Senator Chris Van Hollen, somebody I don’t know well but somebody I do know, who has noticed that this opinion provides additional and substantial evidence regarding Trump’s obstruction of justice in connection with impeachment, and that is Article 2 of impeachment.
Thomas: Yeah, get the articles of impeachment printer warmed up again, guys!
Andrew: Yeah. Here’s what they say. In describing how they reach their opinion they say yeah, okay, we got these responses from OMB, and then they said “We have contacted Department of Defense regarding its response several times, on December 10th, on December 12th, on December 19th. Thus far, DOD officials have not provided a response or a timeline for when we will receive one.
OMB and State have failed to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of these funds. We will continue to pursue this matter and we will provide our decision to the Congress after we have received the necessary information.
We consider a reluctance to provide a fulsome response to have constitutional significance.”
Andrew: “GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.”
Thomas: So wait – sorry.
Thomas: Just to try to understand that. It’s not as though – I though the money is all released, right? Is it that they still want an explanation for the delay?
Andrew: Yeah, that’s exactly right.
Thomas: Okay. ‘Cuz for a second I thought it sounded like they were still holding-
Andrew: No, no. Yeah, it’s saying that as of right now executive agencies have obstructed justice and interfered with the constitutional obligations of the Government Accountability Office. I gotta tell you, I have read a fair number of GAO decisions? I have never seen one that uses this kind of language. This language was not used against Dick Cheney in 1991. To say, you’re obstructing justice, you’re breaking the law, and we trust that you’ll stop breaking the law, it’s a significant thing.
Andrew: I get the laugh.
Thomas: No, they sent him the end of our show is why I was laughing. [Impersonation] Stop breaking the law, assholes!
Andrew: [Laughs] Look, I thought you were gonna laugh because the GAO has no inherent enforcement.
Thomas: Yeah, I mean that too. But that’s more of a single tear down my cheek.
Andrew: [Laughs] They’re gonna refer this over to the Department of Justice and, look, Bill Barr is a part of this conspiracy, it’s not going anywhere. But Bill Barr is not gonna be Attorney General for life, and I think you are starting to see the idea, as people are looking forward and saying you know what? These things are very, very bad, but we are already trying to figure out how to get a return to normalcy. What things are gonna look like in 2021.
Teeing this up is a way of saying, “if you are a civil servant in the Department of Defense right now, if you are a career person who’s watched this and you have relevant documents and you know that they should be turned over, you could potentially face criminal charges in 2021.” Are you gonna face ‘em now? You’re not gonna face them now-
Andrew: But if I worked, if I was a career civil servant, yeah this is a tough choice. It’s easy for us to say if you are in that next tier down at the Office of Management and Budget or in the Department of Defense, it’s easy to say oh, Trump gets elected, I’m gonna resign. But the reality is, you may have been there for 20 years, you’ve got a family to take care of. Saying if you don’t like it quit your job is a super privileged and tough thing to say and lots and lots of people have been pushed out, have had to quit their job, but lots more are just trying to do the best they can on a daily basis.
Andrew: I think this is aimed squarely at those folks who are at a discretionary decision making level but are not Trump hacks. So there you go, that’s the breakdown of today’s GAO decision and I think that there are those items of significance that are likely to percolate into the common press by tomorrow or early next week.
Thomas: Are you suggesting, P. Andrew Taurus, that they could mooo the noodle?
Andrew: [Laughing] I like to think that they could mooo the noodle.
SIDEBAR ON PARDONING
Thomas: [Laughs] Yeah, you know, speaking of that debate I really would have loved – I need any candidate to just be like, hey, I’m also gonna make sure we prosecute all the crimes of the Trump era.
Thomas: I would really love that, it would make me feel better.
Andrew: It would make me feel better too. That’s a thing where you would have to break with Obama in 2008, because he was asked that during the Democratic primary. Hey, are you gonna go after Condoleezza Rice for war crime? Are you gonna go after the Bush administration for marching, sending poor Colin Powell off to the UN with photographs that you knew were of baby milk factories and saying these are chemical biological weapons plants?
Thomas: Yeah, well, I think Obama was wrong.
Andrew: Yeah, I agree.
Thomas: What we did didn’t work. They haven’t learned the lesson, nobody was punished, so enough of that. We tried that, Ford did it too, and I don’t see – it’s not like the country was healed from Obama doing that, or something.
Andrew: Yeah. [Laughs] It’s not like that sent an olive branch out to Mitch McConnell.
Andrew: I agree, I’m just describing that-
Thomas: Right, yeah. I forget in our – I need to go back and listen to our pardon episode, ‘cuz that was a really good deep dive but it’s been a few years. I don’t like that you can do – what I think Ford did was just the blanket pardon. Because I think one asset on our side would be the fact that there’s so many crimes it would be very hard to write them all down and remember all of them when you’re doing your pardoning so likely you’d forget one and then be like oh! We can get Trump for that one that they just forgot to pardon.
Thomas: If I remember right I guess you can just kinda blanket pardon which seems unfair.
Andrew: Yeah, that was episode 90, just as a plug.
Thomas: Ooof! That was a long time ago!
Andrew: Yeah, we’re on 351! [Laughs] But yeah, I agree with you and as we continue to see these cracks in the constitutional landscape, I think if we have an Article 5 convention and we were re-writing provisions I think explicitly saying no, the President can’t self-pardon.
Andrew: And that pardonable – codifying all of the thing, I love your proposal, the idea that you can’t just sort of pardon somebody for everything, so you would have to specify precisely which offenses and you would say “acceptance of the pardon is acceptance of the guilt associated with the offense.”
Introduction of Impeachment Managers
Thomas: Mmm, yeah, that’d be nice. Alright, I don’t wanna get us too far off topic, so what’s our next bullet point, subtopic, small ii, whatever, italics, I dunno.
Andrew: Yeah, bullet point number two. Your guide to the – so the impeachment articles were transmitted and there were seven impeachment managers named. This is basically half of the impeachment managers that were named in the Clinton impeachment in ’98.
Andrew: Yeah. They had 13. I think it’s illustrative, it gives us some insight into how the House thinks that this case needs to move forward. Most of the names, I think, are pretty straightforward, are the people that you would expect.
Thomas: No Justin Amash, though.
Andrew: Yeah, that’s what I wanted to talk about. Obviously Adam Schiff is gonna be running the show.
Thomas: And he’s earned it.
Andrew: Absolutely. He’s demonstrated that he’s very, very good in these settings. Jerry Nadler, Val Demings, Zoe Lofgren, Hakeem Jeffries, those are all people who I think demonstrated skill in their questioning during the impeachment inquiry process. Missing a couple of folks that I would have like to see there, Justin Amash would’ve been really, really interesting but I think that he’s just so much of an unknown quantity that-
Thomas: Yeah. I was trying to think, if we’re gonna talk about the Justin Amash thing ‘cuz I have a friend of mine who was hoping that Amash would be on there. I was thinking like, okay, this has gotta be A, there’s not a whole lotta hope for conviction anyway so I dunno, it’s not the hugest deal in the world how much more objectivity that Amash might lend it, but it still seems like it’d be worth it, I was thinking it would be like, well this has gotta be a very coveted spot, managing her caucus.
I’m sure Pelosi had to make some decisions, who deserved it, you know, I’m sure there’s a pecking order and all that. But when you say that they could’ve just had more of them, I didn’t even think of that, we could’ve just added Amash onto them so now I’m back onto wondering why she didn’t just do that, but on the other hand it does feel a little frustrating that, like, okay, this guy is a Tea Party Republican essentially.
Thomas: But because he’s the one who has a spine and left the party and went independent over this he gets to kind of be rewarded along with the top Democrats, but I dunno, how do you think about the question?
Andrew: I think your analysis is 100% spot on. I think that the concerns were, number one, if a Republican is able to leapfrog a bunch of folks who had a real good claim to be on there.
Andrew: So let’s quickly mention those folks: Eric Swalwell –
Thomas: He was really good. I like Swalwell in the hearings.
Andrew: He was really good, Ted Lieu was really good.
Andrew: Raja Krishnamoorthi was really good. Sean Patrick Maloney was really good. Those are lifelong, loyal Democrats. I assume [Laughing] I haven’t seen any grumbling from them. I assume they’ve accepted their fate in being left off, but being left off in favor of Amash might’ve been a harder sell.
Andrew: I think you’re dead on on that. One of the things we saw that worked incredibly well during the impeachment inquiry was devolving questioning. You don’t have the five minutes at a time grandstanding, you had a competent legal counsel asking questions for hours at a time and doing the appropriate follow-up. I trust Adam Schiff to do that and I trust this entire team to defer 100% to all of the interests of Adam Schiff and I think maybe there was some notion that maybe we don’t know that we can trust Amash to do that.
Andrew: The two folks who were a surprise that I haven’t mentioned so far are Sylvia Garcia from Texas. I took a look, she’s a very, very fascinating person. She’s been described as a former judge? [Sighs] But that’s kinda weird.
Andrew: So here’s why. First she was indeed Chief Judge of the Municipal Courts in Houston before being elected to Congress. These are… traffic courts, basically. I’m not sure how relevant that experience is. Then she was on the Commissioner’s Court for Harris County, I looked that up and – Texas is just, it’s a whole other country. [Laughs] In Texas, the Commissioner’s Court serves as what you would think of as a County Counsel in, like, sensible jurisdictions. It’s actually the governing body for the County.
Under the Texas constitution the courts consist of a County Judge and four County Commissioners, they get elected, the County Judge is the presiding officer and the Court conducts business on behalf of the County. So it does things like maintaining roads and bridges, they set salaries, they create and fill offices, they hire people, they issue construction bonds. That is absolutely an executive administrative position, it is not a judicial opinion. I just have to say on the publicly available information I have no idea [Laughing] why Nancy Pelosi chose Garcia.
Andrew: I just don’t. Whenever I don’t know I find that fascinating.
Andrew: I’m looking forward to watching what she’s gonna do.
Jason Crow is the other person, and this I do understand. This is, I think, a really, really interesting story. Jason Crow is a freshman, he was elected in 2018, he was elected in a district in Colorado that was created after the last apportionment in the 1980s – not after the last apportionment, after the 1980 census this district was created because people were moving out to Colorado, retirees, so the State grew, they got to add a Congressional district, and they created this district that has never elected a Democrat. It has only elected Republicans in the history of this district up until Jason Crow.
You might be thinking, okay, well, you know, he’s a blue-dog kind of Democrat. Because of that, he was on the lists of potential Democratic defectors in June, of will he vote against impeachment in the House? Here’s this Democrat from a deep red district. [Laughing] I think that proves that, you know, mainstream media sources speculate even more than we do?
This guy, Crow, he’s sort of exactly the Democrat you want in a deep red district. He is moderate by temperament and the things that he says, but he has compiled a solidly liberal voting record. Because he’s only been in Congress for a year there are no full reports from watchdog groups that I could find, just not long enough, but I can do – YouGov, I think you can do a vote comparison, and what I did was I said okay, I wanna track his votes as compared to Jamie Raskin, who is the Maryland Congressional representative who’s an atheist. He was my former representative when I used to live in Montgomery County. He’s kind of a stand-in for off the top of my head picking the most liberal guy I could think of in Congress.
Crow and Raskin voted together 96% of the time and the four votes that he broke were things like voting against the 2019 budget, where it passed 389-25. There were no key votes in which Crow deserted the leadership, and as I looked through his policy positions there are no policy positions that he’s announced that break with important liberal values.
Andrew: He’s pro-LGBTQ rights, he’s pro funding Planned Parenthood, he is pro-gun control. He’s been a solid, reliable, liberal vote in Congress while still saying some moderate things. Look, that’s what you want.
Thomas: Yeah, I was looking at his 538 tracker, just to see. I think it’s tough, like you say, there’s not a lot to go on. Yeah, he seems to be, like you’re saying. His Trump +/- is -4.5 which is the score minus the Trump margin that you would expect based on voting.
Thomas: He is beating that by a little bit which is what you’d want.
Andrew: Yup, yup. This guy was on the Armed Services Committee, he was not on Intelligence, he was not on Judiciary, he was not on Oversight, he was not a part of the impeachment process at all. Before being elected to the House he was a practicing lawyer, he was a trial attorney, and so I am very confident that he was added to this because he’s good at what he does, because he’s good at direct examination and, if there are any hostile witnesses, cross-examination. I’m really, really looking forward to watching this guy work.
Andrew: So those are your impeachment managers.
Thomas: Well there you have it.
Sidebar in Chief Justice Impeachment Robe
Hey, does Roberts have a funny costume or anything? Didn’t you say that happened in the Clinton one?
Andrew: Yeah, it absolutely happened.
Thomas: A crown and scepter type thing?
Andrew: [Laughs] Yeah, then Chief Justice William Rehnquist designed this – designed himself.
Andrew: I don’t think personally-
Thomas: It’s like when the sports teams now do a lot of the throwback jerseys or whatever?
Thomas: The Supreme Court’s like oh, we just decided just for fun we’ll do a throwback Supreme Court uniform from the 1800s.
Andrew: Just as a sidebar, folks know my baseball team of choice is the Tampa Bay Rays, and the Tampa Bay Rays were an expansion team in 1998, so when they do throwback uniforms-
Thomas: [Laughs] Not much throwback.
Andrew: Yeah, there’s not a whole lotta throwback to do, so what they created – and I just love this – they created faux-back uniforms.
Andrew: It’s exactly what it sounds like, it’s what the Tampa Bay Rays logo would have looked like if we were a team in 1973.
Thomas: They pretended? Yeah. [Chuckles]
Andrew: They are-
Thomas: That’s a great idea.
Andrew: I have tried to buy one of these jerseys and I can’t. They are glorious, the faux-backs. I love those. So Rehnquist came up with this design with these three gold bands on it so he kind of looks like Q from Star Trek. It was great.
I do not know because we are recording this as Roberts was being sworn in. If I find out before the end of the episode I will let you know if he’s in the Rehnquist costume.
Thomas: It’s such a good opportunity for the Supreme Court to sell some more merch, so I assume they would do it.
Andrew: [Laughs] Exactly right!
Thomas: Gotta keep the building open!
Andrew: There we go! [Laughs] Supreme Court merch, yeah. We should get in on that! OA Supreme Court merch.
Thomas: Alright well we’re going to get to the President’s legal team, I believe, but before we do we gotta hear a brief ad. Here we go!
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The President’s Legal Team
Thomas: Alright, President’s legal team, huh?
Andrew: [Laughs] Oh man!
Thomas: Pretty good? A real who’s who? A real Atticus Finch and some other?
Andrew: [Laughs] Yeah, right. So unsurprisingly, Pat Cipollone is going to be lead counsel. He has written the stupid letters that have come from the White House counsel’s office in connection with impeachment and it’s just – look, his background is my background. Complex commercial litigation.
Let me tell you, as we said before, if Nancy Pelosi called me up tomorrow and said hey, I want you to be the lead attorney on impeachment I’d be like A, I’m flattered Madam Speaker, but B, are you sure? I could be in the number two chair but I don’t know that you want me to be lead guy on this. Happy to do it but eeeh, maybe we got some better choices. That’s the lead guy.
The [Laughing] number two is going to be – I used to call him America’s dumbest attorney, there’s a lot of competition for that spot now.
Andrew: But he’s still, as John Cusack would say, he’s still top five. He is an unbelievable clownhorning idiot, and that is Jay Sekulow of the American Center for Law and Justice and making stuff up.
Andrew: Jay Sekulow is truly stupid and continues the Trump administration’s fantastic drive, and all these folks who are with it, who just – it is, I think the psychological literature on groupthink will have case studies for decades coming out of the Trump administration.
Andrew: We’ve talked about this. Michael Flynn withdrawing his guilty plea on the advice of moron-attorney Sidney Powell, we told you last year that when Flynn fired Covington & Burling, smart lawyers who could actually help him, and hired a Fox News analyst, that it was gonna go super-duper bad for Michael Flynn, and guess what? That’s exactly what’s happening.
I feel continually comfortable in saying sticking Jay Sekulow in charge of persuading Susan Collins is a truly stupid thing to do and I’m delighted by it.
The news broke [Laughs] that the President was also considering adding Alan Dershowitz to the team?
Thomas: Oh my god.
Andrew: Again, just amazing. That would be great, because then you would not only have somebody that the majority of American finds distasteful and intolerable, but you would also have somebody who is self-aggrandizing and spotlight seeking! [Laughs]
Andrew: The only thing that would be better would be adding Rudy Giuliani to the team.
Andrew: It just, it would be amazing.
Thomas: If that happened you would just wanna be like, hey Rudy, just go! Democrats would be like “just talk.”
Thomas: Take as long as you want, say as many things as you- we’ll be here as long as you wanna just spout off whatever! [Laughs]
Andrew: [Laughs] I would just, yeah.
Thomas: Because he can’t help but implicate himself and the President in crime after crime.
Andrew: I will make this promise right now: If Donald Trump names Rudy Giuliani to his defense team I will get a prescription for Adderall, I will crush it up and begin mainlining it and we will just do this show live until my heart explodes.
Andrew: I’ll just turn on the microphone, start recording, and we’ll go until I die a happy man, that would be amazing.
Thomas: So, Giuliani, not a great lawyer?
Thomas: Is that what you’re …. Lawyer to lawyer, uhh, how do you feel?
Andrew: Oh gosh, it would just be … literally Rudy Giuliani is at that stage where [Laughing] he can’t help but say the quiet part loud.
Thomas: [Laughs] Yeah.
Andrew: And not just loud but like loud and obnoxiously so! [Laughs] Do you remember the halcyon days way back to Stormy Daniels is a Legal Genius where Rudy Giuliani like a week later was like “oh yeah, no no that whole thing, we had set up a retainer thing.”
Andrew: And you were like, what?!?! No! I was trying to parse out, what’s the devious, brilliant thing that he’s trying to do to throw off suspicion and you’re like no, he just can’t help but admit to the crimes.
Thomas: I mean in the end though it is the ultimate genius, because the one genius of Trump, et al, is they figured out if you just say the crime out loud and pretend it’s not a crime, somehow it gives you blanket immunity! Nobody’ll ever punish you, because they’re like “well he’s saying it out loud so it can’t be a crime,” and it’s worked! Works time after time … until it doesn’t, until we make it not work.
Andrew: Until it doesn’t.
SEnate Rules and Procedures
That’s a great transition to our last segment, I did wanna do a tiny sidebar because, you know, we got all the time in the world.
Andrew: But a tiny sidebar on the rules and procedures that you were talking about at the beginning. There’s some great stuff like you have to be silent during the trial.
Andrew: They actually set up this little cubby system to confiscate all the Senators phones. Those are all part of the Senate rules that have been adopted. I have seen otherwise – let’s talk about the real significant one. Having the Senators be quiet and not have access to their cell phones is not a huge onus. What is is the requirement that all 100 Senators be present for the duration of the trial.
Andrew: I have seen that described as a constitutional requirement. It is not a constitutional requirement. The only constitutional requirement, we’ve read it on the show before, Article 1, Section 3, Clause 6, which says “The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President is tried the Chief Justice shall preside and no person shall be convicted without 2/3 vote of members present.” That’s all the constitution requires, it does not require that the Senators be there, but the standing Senate rules do.
Andrew: That is going to greatly affect the Iowa primary.
Andrew: It means Elizabeth Warren, Bernie Sanders, Amy Klobuchar.
Thomas: I almost wonder, so is this locked in? Or is there still time to change the rules?
Andrew: There would be time to change the rules but those rules are not going to be changed.
Thomas: Because I was gonna say, if I was just trying to think like an evil McConnell genius – if I were McConnell I would think oh maybe I wanna try to help out Sanders and Warren-
Thomas: -in order to – you know, because Biden obviously doesn’t have to do anything so he can be out their campaigning.
Thomas: I dunno.
Andrew: Pete, he’s out there campaigning.
Thomas: And Mayor Pete, yeah, but like, just thinking as McConnell they probably view Biden as the main competition to Trump I would think and so it might be interesting to be like, yeah, we’ll let you go, we’ll go ahead and relax these rules so that Sanders and Warren can get out there.
Andrew: I like your devious thought pattern. I mean, I respect your devious thought pattern.
Thomas: I’m just trying to think like McConnell.
Andrew: I don’t wanna drink our own Kool-Aid, we’re Warren supporters. I believe that within Trump circles that they view Warren as the strongest competitor. You know, I’ve got my own bias on that.
Thomas: Maybe a few months ago, I dunno about any more.
Andrew: I still think they do. So they could, it’s not gonna happen. And that very well could affect the Iowa primaries. But all of those rules that you see are Senate rules, they can be amended, changed by a simple majority vote through the process we’ve described which is akin to the nuclear option by appeal to the decision of the chair and just requires 51 votes, so they could change those.
Causes for Optimism
Now we get to the real question you teed up and that is, is anything gonna move the noodle?
Andrew: There are couple of things that are going on right now that, in my view, give you some cause for optimism. Look, let’s describe – there are sort of two stages of optimism at this point.
The first is we will know. Trial begins on Tuesday. There is a significant probability, a sheaf of probabilities, that in my view well under 50%, but well above 10. Somewhere in the 1/4, 1/3, that before opening statements Mitch McConnell introduces a Motion to Dismiss the Impeachment With Prejudice and gets 51 votes. That is a real possibility. So the first thing I would call a victory is if that doesn’t happen. If there is an early motion and that motion does not carry.
Again, on an early motion you would only need 3 Republican defectors because the Vice President is not empowered to break ties when John Roberts is sitting as the presiding officer. Roberts would be able to break the tie, but I feel very, very strongly that however much John Roberts wants to help Donald Trump (and we don’t know how much that is) I feel very strongly that he will not cast the tiebreaking vote in [Laughing] favor of a Motion to Dismiss and not have the trial. So that’s sort of the first victory, is there going to be a trial at all? Is there going to be a Motion to Dismiss?
The second victory – potential victory, is are there going to be witnesses called? Or is this just going to be a (quote) “trial” that is sort of more akin to a political debate? Here, again, it’s up to John Roberts if you have 3 Republican defectors. I would very, very much like to have 4.
Andrew: Because you don’t know what’s gonna happen in terms of Roberts just saying okay, well, there’s a motion to call witnesses, I’m abstaining, it’s 50/50 so that fails. The default is we take no action.
Thomas: Oh really?
Andrew: Yeah, it would be an easier way, depending on how the motion is framed, but it would be an easier way to say hey, you have to want to do something, you’ve moved to call witnesses but you haven’t gotten a majority and so therefore you don’t get to.
Andrew: Again, really, really hard to judge the political landscape. This is a serious potential outcome. This is why, in my view, the Lev Parnas interview yesterday and it continues tonight after we record this-
Thomas: Oh, it does?
Andrew: Yeah, there’s a second part.
Thomas: [Laughing] More crimes! He’s like I barely started, I got so many more crimes.
Andrew: And I wanna talk on the substance of that, but what I really wanna say is this seriously puts any Republican who has any independence whatsoever in a tough spot in terms of saying “[Stammering] Obviously nothing to see here!” and moves us closer to those two victories.
The reason that I know they are concerned is that the President’s lackeys, beginning with Andrew McCarthy in the National Review, have started trotting out their next line of defense. You may already have seen this on Fox News, I don’t know [Laughs] and I doubt our listeners will have seen it on Fox News, but this will make the rounds. McCarthy’s article in the National Review was oh, what we should do is, we should dismiss the articles of impeachment without prejudice and let the House finish up its job.
Andrew: You don’t have new testimony while you’re going to trial! Obviously that’s a super easy game to figure out, right?
Thomas: Wait am I nuts or – you do have new testimony in trial, don’t you? [Laughs]
Andrew: Indeed, it’s part of the thing.
Thomas: From my … legal expertise.
Andrew: It’s not typical, but this is an area- well part of the arguments that the President has tried to maintain throughout this process is an analogy to a criminal trial, with … varying degrees of success in terms of fairness and whatever. But this is one where it’s really, really hard to make that argument to anybody other than true believers because we’re sort of primed for “I’m calling a series of surprise witnesses, each more surprising than the last!”
Andrew: You don’t say let’s go back to the grand jury when new evidence comes out in the middle of the trial. You expect Matlock to come up with new evidence in the middle of the trial, even if that’s not typical it’s certainly not prohibited. I think that argument of “well why don’t we just delay some more,” to me – again, it’s hard for me to put myself in the position of Uncle Clarence, I kinda feel like Uncle Clarence is gonna look at that and be like … okay, come on. [Laughs] I hope so! I’m optimistic aboutcha, Uncle Clarence!
Sidebar on Calling Hunter Biden as a Witness
The other thing that I think is weird – again, I’m not a sitting member of the U.S. Senate.
Thomas: Not yet!
Andrew: [Laughing] Not yet. Folks have been asked-
Thomas: Patreon goal! [Laughs]
Andrew: There we go! There’s a patreon level-
Thomas: Make Andrew a Senator!
Andrew: Yeah, there’s a patreon level which I will run for Senate. The multiple Democratic Senators I have seen have been asked the question “are you willing to do a deal with the Republicans whereby they can call Hunter Biden and you can call your list of witnesses?”
Thomas: Hmm. Interesting.
Andrew: And everybody has said no. In my view that’s a mistake.
Andrew: I would take that deal in a heartbeat!
Thomas: Just be like, yeah, fine!
Andrew: Because the Republicans are gonna turn it into a clownhorn show anyway! You’re going to hear that argument whether Hunter Biden is on the stand to sort of soil himself or not. And let’s be clear, I’ve had to deal with having the other side want to call my client’s witnesses knowing that they’re gonna be bad witnesses for my client. You can work with them in such a way as to mitigate the damage. I don’t know how amenable Hunter Biden is to this, I imagine – I would imagine, fairly.
Thomas: Like, “Am I getting paid for this or what?”
Andrew: [Laughs] Right!
Thomas: If you guys can offer me as much as that oil company did!
Andrew: But look, all you have to do – you have to pull Hunter Biden aside and be like “look, here’s what’s at stake,” we don’t have to go over that on this show, “and what we need you to do is you’ve got to come off as stupid and incompetent as possible. I get that that’s going to hurt your ego, but it’s going to keep you out of federal prison and it’s gonna help the Democratic party,”
Thomas: Wait, wait, wait. What is even the risk? What’s the alleged crime that he’s committed?
Andrew: So the alleged crime that he has committed would be bribery.
Thomas: Allowing someone to pay him a bunch of money that he didn’t deserve?
Andrew: Right, right.
Thomas: That’s not a crime, this is America!
Andrew: [Laughs] It is if you know that you are receiving that money under false pretenses. If you know you are receiving that money in exchange for any improper purpose. Look, he didn’t. We’ve been over this, he’s received it because he’s a talentless political hack and the son of a major U.S. political figure.
Thomas: But that’s not enough to be criminal?
Andrew: Yeah, it’s-
Thomas: If he knows, if he has a pretty good idea like okay well it’s just ‘cuz of my dad-
Andrew: Yeah, that’s absolutely not enough to be criminal-
Thomas: Oh, okay.
Andrew: -in the same way that Rick Perry taking the seat on L.P. Energy’s board was not criminal.
Thomas: Maybe it should be.
Andrew: Yeah, absolutely it should be.
Thomas: Maybe it should be. We’ll trade ya one Hunter Biden for-
Thomas: I dunno, about a million Rick Perrys?
Andrew: Yeah, look. I’ll trade you all the Democrats who have ever done this-
Andrew: [Laughing] In exchange for nobody ever being able to do this again.
Thomas: Sounds like we all win!
Andrew: Yeah! It would be great.
Thomas: Let’s do that.
Andrew: That’s a good bluff to call. So yeah, I don’t know why you wouldn’t let them call Hunter Biden as a witness.
Andrew: I think the argument of it’s not relevant is not a great argument. Your story as the Democrats needs to be, we want to hear from everybody who has relevant information and we’re not pre-judging who has relevant information. I would say, if I were a member of the Senate I would say yeah, look, let ‘em call Hunter Biden and let’s trust John Roberts that if the Republican gets up and says “So, isn’t it a fact that Q-Anon sent secret soldiers with tinfoil wrapped around their head into the basement of Comet Ping Pong” then you can object on the grounds of relevance to the questioning.
Again, I trust John Roberts to run a trial. This is what you would do, if this were a real trial, again sticking with that analogy, you’d be allowed to call Hunter Biden as a witness.
Thomas: Yeah. This is frustrating, I really feel like we should just do this.
Andrew: I totally agree, I don’t know why the Democrats aren’t doing it.
Thomas: Just loyalty to Biden, probably.
Andrew: Maybe. Maybe it is also to stake out a negotiating position. If you say oh no, absolutely that’s off the table and then you get into the private session and they’re like well okay, we’re going to have to call Biden or these negotiations are going nowhere you’re like, [Sighs] well we’ve made public pronouncements, but okay, hypothetically let’s say we’re willing to take that, now what are you-
Andrew: You do that to then gain concessions.
Thomas: Just driving a hard bargain.
Andrew: That’s what I’m hoping.
Thomas: Art of the deal, basically? [Laughs]
Andrew: The art of the deal, that’s exactly right. So maybe that will happen, I certainly think it should be.
Let’s talk really, really quickly about Parnas’ testimony. I will also add today that I don’t know if you saw this developing, but Ukraine announced that they are opening an investigation.
Andrew: [Laughing] As to whether Yovanovitch was illegally surveilled!
Thomas: Well I shared it on Facebook and was like, is there a way to get the Curb Your Enthusiasm music to play over an article? Because it just needs to go [Singing Curb Your Enthusiasm Theme]
Thomas: It’s perfect! Trump wants this investigation and then it’s like okay, we’re gonna go ahead and investigate what happened here. It’s not quite the investigation that Trump wanted, we’ll say.
Andrew: Yeah, exactly! Look, let’s talk about Parnas and bracket, and also John Bolton as potential witnesses in impeachment. The reason that I think I have some optimism for being able to convince Republicans – and we’ll talk specifically who – includes the fact that it is by no means a foregone conclusion what these witnesses will say and do and how it will affect the trial. This is really, it’s the kind of situation as a lawyer that you ultimately usually try and avoid. You don’t know what these witnesses are gonna say and they are not friendly [Laughs] to you and your side. Let’s break each one of these down individually.
So, Thomas, what’s your impression of Lev Parnas as a potential witness?
Thomas: Well, it’s hard ‘cuz oftentimes with the Trump administration we’ve had to rely on – it’s made strange bedfellows. We’ve had to rely on the word of extremely skeezy people, or at least skeezy-looking people.
Thomas: [Laughs] You know, that’s a little iffy. At the same time, this is a person who [Laughing] should have the information that we need and it’s not as though this is second-hand or anything, he was involved in this. I believe he has a certain amount of documentary evidence, right? So I’d think he would be pretty reliable.
Andrew: I’m so glad I asked the question, you literally have hit all my bullet points and these were not shared on the white board.
Thomas: Okay, let’s end the show! Here we go! [Laughs]
Andrew: [Laughs] Thomas Was Right!
Thomas: Hit it Brian! [Laughs] Yeah.
Andrew: Yeah, this is – you’ve put one of the hired goons on the stand if you do that. This is somebody, and the strengths are the weaknesses. The strengths are he was directly involved in implementing the President’s shadow foreign policy and because he was directly involved in implementing the President’s shadow foreign policy, he looks like a hired goon! He talks like a hired goon!
Thomas: I was gonna say, other weakness? His hair. That’s the other- [Laughs]
Andrew: [Laughs] And let’s add to that. We talked about how Gordan Sondland is sort of skirting this line of, here’s somebody who bought himself an ambassadorship and at some point developed a conscience or at least developed a self-preservation instinct. Gordon Sondland, as Sean Patrick Maloney rather ably demonstrated in cross-examination, it took a while to get you there.
Andrew: Still has some reticence in terms of testifying truthfully about exactly what he knew and when he knew it. But Parnas has a related but in some ways more difficult problem as a potential witness, and that is there is zero story about why he is all of a sudden willing to cooperate.
Andrew: It is not credible that this is somebody who all of a sudden started dropping off cans at the Food Bank for orphans, right? [Laughing] You look at him and you’re like, right, he’s a Bond villain’s henchman. He’s the guy who goes and retrieves Oddjob’s hat.
Andrew: You can tell he’s a bad dude! The way he talks you can tell he’s a bad – I would be terrified of having to put this guy on as my witness without bracketing around the look-
Thomas: But at the same time, I mean, when you talk about conspiracies and doin’ a bunch of illegal stuff it’s not as though you’re gonna get – I’m trying to think who would be the ideal witness.
Andrew: Yeah, yeah.
Thomas: They’re not doing it in front of Jimmy Carter.
Andrew: Right! [Laughs]
Thomas: [Laughs] Mr. Carter, what did you see? [Impersonation] Well I was out there building the houses for-
Andrew: [Laughs] Yeah.
Thomas: It’s always gonna be this guy.
Andrew: I love – by the way I want us to do that, to spearhead the campaign to use Jimmy Carter where in the popular vernacular people would say Mother Theresa.
Thomas: Oh! Good idea!
Andrew: I want “He’s no Jimmy Carter”-
Thomas: He’s way better than Mother Theresa!
Andrew: Yeah, this is a guy who, 90 years old, is in Costa Rica personally building houses for homeless people!
Thomas: Yeah! Probably doing it really badly, probably other people have to go over his work, it probably causes more work. But still! It’s the thought that counts! [Laughs]
Andrew: [Laughing] You’re officially the worst, Thomas! [Laughs] Anyway, yeah. You don’t get Jimmy Carters to carry out your evil plans, but at the same time- I keep trying to steel man the President’s arguments as best as I can. That’s usually a challenge. Here it’s not hard, it’s not hard to say yeah, this is a guy who’s under federal indictment right now and he’s telling prosecutors, liberal prosecutors, whatever he thinks they want to hear in order to be able to make a sentencing recommendation later that says “I provided substantial cooperation.”
Thomas: Yeah, but [Sighs] I hear ya. But that’s been the case with all of these!
Thomas: So we have to find somebody who was involved in the crime but is not in trouble for it or something? Who would that be?
Andrew: [Laughs] I’m not saying that.
Thomas: Yeah, I know, it’s just a hard standard to meet.
Andrew: No, no, it’s fair argument, but again, you wanna steel man the other side. Prosecutors make this decision all the time. The best cooperating witnesses are the ones that will honestly get up there and say “oh yeah, I’m flipping because I did this bad thing and I got scared that I was gonna get caught and also I recognize that I was caught up,”
Andrew: “And my testimony is credible and not embellished.” Because there is – I think Cipollone will be able to do this because I could do it. [Laughing] Jay Sekulow will not because he’s a moron!
Andrew: But Cipollone will be able to sort of paint him as the witness who’s eager to say whatever the questioner wants to hear. That is a real potential problem. You could say – and again, a good lawyer will say yeah, is some of what Lev Parnas saying believable? Sure, but you can’t trust any individual sentence that comes out of his mouth because he’s trying to curry favor from people who want him to bring down the President.
Look, some of the glee of him eagerly accepting the premises of Rachel’s questions last night really struck me. So for example when, every time, “Was Pence involved,” “Oh yeah! Absolutely, Pence was involved!” “Did the President know?” “Absolutely yeah.”
Andrew: And again, on balance I think there probably is a lot of truth there but I think he’s also the kind of witness that a skilled defense attorney would know how to cross-examine.
Andrew: And how to potentially small-I impeach the testimony of that witness. That’s a risk. 100% if I were a house manager I would call Parnas as a witness, I’m not saying that, I’m just saying that there’s some risk that goes along with it, and I think the fact that there is some risk is … in a way part of the pitch that you can make across the aisle to Republicans. To say, hey look, the fix isn’t in, we have no idea. This is not a hard argument for Chuck Schumer to make, to go over and be like, “I’m pretty sure I have called John Bolton an isolationist walrus in print, so he’s not just gonna puppet the things that I want him to say.”
Thomas: Right! I’m not even sure, we don’t even know if he would be that great of a witness or whatever.
Andrew: Yeah! We do not. We absolutely do not.
Potential Republican Defectors
So now this is where I wanna come to hopefully draw this to a close. I went through – and again, you have to have an Optimist Prime in the background.
Thomas: Which you do.
Andrew: Which I do. That is assuming we can take Susan Collins and Mitt Romney at their word that they want to hear witness testimony, and assuming that they are able to persuade Lisa Merkowski, that gives you three votes.
If you are looking for a fourth vote and believe me, pundits are looking for a fourth vote right now. I don’t think they’re doing a very good job of looking for who that fourth vote would be. The names that are getting bandied about are, you know, Lamar Alexander, long standing Tennessee Senator, retiring. Okay. Ben Sasse I think is not a great choice, but he’s been critical of Trump in the past. I wanted to delve a little bit deeper-
Thomas: You got a sleeper pick? Is this our fantasy league? Here we go!
Andrew: This is a fantasy-
Andrew: I’ve got a sleeper pick.
Thomas: Fantasy Republicans Growing Spines League. There’s … not a lot of scoring.
Andrew: There’s not a lot!
Thomas: It’s a low scoring league. [Laughs]
Andrew: [Laughing] We’re not doing multiple rounds in this draft!
Thomas: It’s basically just one stat, which is if a single Republican ever has a spine you win and nobody’s won.
Thomas: Except if anyone has Amash, they would’ve won the one time.
Andrew: [Sighs] You’ve spoiled the calculation. I was gonna try and get there, but there are two types of political calculus that I took a look at. The first was kind of figuring out who’s the opposite of Lindsey Graham?
Andrew: This is like Lindsey Graham opposite George, right?
Andrew: Because look, we know what happened to Lindsey Graham, right?
Thomas: Do we?
Andrew: Yeah, absolutely we do.
Thomas: No I mean like, people wonder if Trump has something on him. Like I’m not 100% sure what’s going on there, but…
Andrew: Yeah, I think it is just naked political calculus.
Andrew: Here is somebody who realizes as a Senator from South Carolina that he stands a much greater chance of losing a primary to a Trump-backed supporter than he does losing a general election and so turned himself into Trump’s lapdog. That is far more parsimonious than the blackmail explanation.
So I thought about, is there anybody who’s kinda the opposite of that? Somebody who is from not a huge Trump State and who’s not up for re-election in 2020.
Andrew: And here, I didn’t come up with great names. [Laughs]
Thomas: I could make up some names! There’s Senator Blevins! What about Senator Blevins? [Laughs]
Andrew: [Laughs] Could be Senator Blevins!
Thomas: Top candidate for me!
Andrew: Yeah well when I give you these two names you’re gonna take Blevins any day.
Andrew: The people who best fit that would be [Laughing] Marco Rubio and Ted Cruz.
Thomas: Oh my gosh, really?
Andrew: Right, yeah! Because think about it!
Thomas: Yeah, I’ll take Blevins.
Andrew: No, no I would take Blevins too!
Thomas: [Laughs] We’ll take those odds!
Andrew: These are – yeah, no I would require 100 to 1 odds on this right? But it’s not implausible because you look at it – they’re both in their late 40’s, Rubio isn’t up for re-election until 2022, Cruz isn’t up for re-election-
Thomas: Both the Zodiac Killer.
Thomas: No I’m sorry, I shouldn’t say that. Only one of them is the Zodiac Killer, I didn’t mean-
Andrew: Cruz isn’t up for re-election until 2024. They’re both in States that are trending away from Trump, in Florida and Texas.
Thomas: Good point, yeah.
Andrew: If you’re looking at that going I would really like to be President someday – and Marco Rubio and Ted Cruz have run for President!
Andrew: They both really, really wanna be President, so-
Thomas: That is all they want to do.
Andrew: That is all they want in life.
Thomas: Rubio literally doesn’t even do his job!
Andrew: No, yeah.
Thomas: He doesn’t even show up!
Andrew: No, he’s never-
Thomas: He’s like “I’m just here to run for President.”
Andrew: Yeah, that’s right. The last time I looked, and I’d be shocked if he got caught, if he got surpassed on the leader board, he had by far the worst attendance rating at votes in the Senate.
Thomas: Maybe Tulsi could compete.
Andrew: Who knows? He doesn’t care. So if you’re looking at that and making a cynical political calculus and saying boy, it is highly likely that by the time 2022 rolls around being perceived as a Trump loyalist will not be a great thing to have on my resume, I throw that out there.
Andrew: Again, one in a hundred, on in a thousand. Actually, I would take the wager – if somebody wants to make a wager with Opening Arguments, an illegal one, send it to email@example.com. Give me 100 to 1 odds and I think I would take that.
Thomas: I mean, I’d bet a dollar.
Thomas: [Laughs] Any loose change that I had, I suppose.
Andrew: But that led me then to the other. Okay, so realistically you’re not likely to find the anti-Lindsey Graham.
Thomas: I hear what you’re saying on those two, but I just know that Rubio, just off the top of my head, Rubio was just saying “oh well it’s the Senate’s job to only do the evidence that the House did so that’s why we can’t have any witnesses” even though that’s not how it worked last time or any of the times. So I already feel like he’s trying to defend Trump. I guess I don’t know what Cruz is up to, so maybe Cruz? [Laughs] That’s so weird! Maybe.
Andrew: Again, not something that you would think of, and led me to probably there isn’t a political calculus the other way. But something to keep in mind! Something I wanna flag it out there!
Andrew: I’m almost certainly just gonna be stone-cold wrong.
Thomas: That would be a heck of an Andrew Was Right. I can’t wait! We’ll do that. Celebrate.
Andrew: Yeah, I’ll take that 100 to 1 odds and yeah.
Second, then, I looked is there – and there’s a little bit of a Black Swan event to this, but is there a Justin Amash? Look, a week before Justin Amash said “holy clownhorn I read the Mueller Report and it’s super bad” would any of us have said oh yeah, no, the 10-term Tea Party – sorry, 5-term Tea Party Congressmen, elected at the height of anti-Obama rhetoric – that’s the guy who’s gonna turn. No, you wouldn’t have said that, right?
This really is the indication of is there somebody out there who cares about the political process? And has everything else in alignment that would suggest that they care? I don’t know?
Thomas: That’s a lot of build up for you to say “Nope! Definitely not!”
Andrew: I have a name.
Thomas: Oh, here we go.
Andrew: First, I wanna say rather convincingly – again, hopefully I’m wrong on this. The name that MSNBC is trotting out in this is Cory Gardner from Colorado who’s 45, he’s from a purple State. I wanna be wrong on this, I think there is zero chance that Cory Gardner flips. That is, digging into his record here is somebody who votes with Trump 90% of the time, and the political calculus is still – the Colorado Republican primary could be devastating for Cory Gardner. So I don’t think Gardner is a likely candidate.
Here’s somebody I have my eye on. It is Todd Young from Indiana.
Thomas: I knew it!
Thomas: No, I literally don’t know who that is.
Andrew: I did not know Todd Young was a Senator from Indiana, okay? He’s 47 and he’s kind of – he’s not up for re-election until 2022, at which point look, again, if you’re talking about a political calculus maybe you’re super optimistic about things but if I’m a realist and a Republican I look at the political landscape and go there is a huge likelihood that Trump gets ousted and loses pretty big for current American politics and there is just a public rejection and repudiation of this administration. Maybe I don’t wanna be the guy who stuck my neck out for him, maybe there’s some advantage of being the guy who said “well, you know, I did see this coming.”
He’s kind of, if you squint enough, he’s the anti Mitt Romney. Here’s what I mean by that. He says things that are supportive of the President in sort of broad general terms. I went back, I went through his Twitter feed, I went through his P.R. releases. He’s somebody who, he doesn’t re-Tweet the racist crap. But he kinda toes the President’s line. At the same time, here’s somebody who went – you can pull this up on 538 – he went from voting with Trump 93% of the time in 2017-2018, to 63% of the time in the 116th Congress.
Andrew: He has a mainstream Republican voting record, he’s a classic business Republican, no ties to crazy Christian dominionist groups that I’ve seen. Again, here is somebody who – Trump won Indiana by 20 points in 2016. Young beat Evan Bayh, probably the best Democratic candidate in the State of Indiana, somebody who’s super well known and a sign of a longstanding Indiana political family by 12 points – excuse me, by 10 points, 52 to 42 in 2016. Here is somebody who is young, up and coming, no indication that he owes his political fortunes to Trump, has not publicly broken with him but has maintained, as almost an independent a record in terms of votes as anybody in the Senate on the Republican side.
Now, our listeners will go through, I can read them, will be able to highlight pro-Trump things that Young has said. I agree with that, I’m not telling you that he’s coming out and that there’s a lot there. I am telling you, if you’re looking at somebody beneath the surface who could pull a Justin Amash and surprise all of us on Tuesday, look at Todd Young.
Thomas: Ah, well, I appreciate the effort, I appreciate the sleuthing there Andrew, I like the predictions but I’m gonna stick with Senator Blevins because I think there’s a stronger chance that there’s some Senator named Blevins that I don’t know about that maybe comes to exist between now and then that will do the right thing over and above some Republican Senator. I think I’ll take the fictional chances over the real ones.
Thomas: They’re both zero, but maybe- I dunno maybe there’s some sort of split in the timeline or something, who knows?
Alright well we are way over time but still plenty of time, as always, for us to thank our patrons over at patreon.com/law, and we are going to go with our new patrons because it’s First Timer Friday. So Andrew, why don’t you start us out?
[Patron Shout Outs]
Thomas: And now we’ll hop on over to T3BE, with a special guest!
T3BE – Question
Thomas: And as I said, we are joined by special guest Phil Ferguson for T3BE, how’re you doing, Phil?
Phil: I’m freakin’ awesome, how are you guys doing?
Andrew: [Laughs] Well I dunno that I’m that good!
Thomas: Just ‘cuz you love taking practice bar exam questions? You’re so good at it?
Phil: I do, I kinda look at it as any day I’m not the one in the box is pretty good.
Thomas: Alright well let’s try our luck, here we go.
Andrew: Yeah, so as always, for the integrity of the game we let Thomas answer first so you get the benefit of his reasoning process, such as it is.
Thomas: My deep wisdom!
Phil: And I can confirm that I have been given no advance warning whatsoever!
Andrew: [Laughs] Alright, so, Phil and Thomas, A woman and her sister took a trip to the Caribbean. When they passed through U.S. Customs inspection upon their return, the customs officials found packages of cocaine stitched inside separate carry-on bags belonging to each of them.
Thomas: [Laughs] Jeez!
Andrew: They were arrested. Upon separate questioning by customs officers, the woman broke down and cried, “I told my sister there were too many officers at this airport.” [Laughs] The sister did not give a statement.
Andrew: The woman and her sister were indicted for conspiracy to import cocaine. They were tried separately. At the woman’s trial, after the government introduced the above evidence (what I just told you) and rested its case, her lawyer moved for a judgment of acquittal on the grounds of insufficient evidence.
Should the court grant the motion?
Andrew: A) No, because the evidence shows that both the woman and her sister agreed to import cocaine; B) No, because the evidence shows that both the woman and her sister possessed cocaine.
Andrew: C) Yes, because the evidence shows only that the woman and her sister committed separate crimes of cocaine possession;
Andrew: Or D) Yes, because the evidence shows that the woman effectively withdrew from the conspiracy when she cooperated by giving a statement.
Thomas: Oh, I hate these ones because I never understand the thing where you can like move for a judgment of acquittal, I never understand why the jury doesn’t get to have their say and what the rules are there. So tried separately, so this is just the woman, the same woman who broke down and cried, it’s just at her trial because they’re tried separately, but it says the woman and her sister were indicted for conspiracy to import cocaine. Indicted for conspiracy but tried separately seems weird to me, I dunno, does that always happen? We’ll find out, maybe next week when we get the answer. [Laughs]
So we’ve got – well, we’ve got the fact that they had the cocaine and then we’ve got the one statement where the woman said “I told my sister there were too many officers at this airport.” So because they’re indicted for conspiracy to import cocaine, that seems a little harsh for just having some amount of cocaine, I don’t know!
Let’s see. No, because the evidence shows that both the woman and her sister agreed to import cocaine. Aaaah. I’m not in love with that. I would think this would be a no just because moving for a judgment of acquittal, I dunno, that always throws me off. I feel like the jury should decide, but whatever.
B, no because the evidence shows that both the woman and her sister possessed cocaine. So I think if I were going with a no answer I think I like A better than B.
C, yes because the evidence shows only that the woman and her sister committed separate crimes of cocaine possession. Well? I mean “I told my sister” … yeah. C seems pretty plausible, even if they were just possessing cocaine that statement would still be consistent with that.
And D, yes because the evidence shows that the woman effectively withdrew from the conspiracy when she cooperated by giving a statement. Uh that seems crazy to me. So D seems like nonsense to me, maybe it’ll be the right one. This is hard, I don’t really know what it’s trying to test. It didn’t end up being hearsay that I see unless that’s like implied in the question, but usually when it’s a hearsay question it gives you all the “yes because it’s hearsay,” you know, a statement against interest or whatever it would be. It doesn’t really seem like a hearsay question. Is it just testing is this enough to establish a conspiracy? Just that she made the one statement, “I told my sister there were too many officers at this airport.”
Ooof, I don’t know! Separate crimes of cocaine possession… okay, so I’m down to probably A and C, No, because the evidence shows that both the woman and her sister agreed to import cocaine, B, no because the evidence shows that both the woman and her sister possessed cocaine. And C, yes because the evidence shows only that the woman and her sister committed separate crimes of cocaine possession. I… [Sighs] I guess I’ll go. I really don’t know, I really don’t understand this. Maybe I will just treat this like it’s the simplest question in the world and I’ll just say… well… I’ll just say A, No, because the evidence shows that both the woman and her sister agreed to import cocaine.
I’ll just go – I’ll go A. I feel like our justice system usually just locks people up for anything like this so I’ll just assume the law justifies it! [Laughs] Drug war!
Thomas: I’ve got A, citing the drug war! I dunno. Alright Phil, what’ve you got for us?
Phil: I’m going with D.
Thomas: Alright, going with the weirdest one, I like it. Bold!
Phil: Yeah, I think that the conspiracy, ‘cuz if they were charged with possessing cocaine that seems pretty straightforward, if they were charged with transporting, but I think the conspiracy, that added word has ah! And here’s the email now. But I’m gonna stick with D because the argument, the detail could be that she knew they were doing it but she didn’t want to, she was compelled to, and of course as soon as she says something to that effect it frees her from the conspiracy, she wasn’t really an intentional part of it, she was a victim of it as well, so I’m gonna go with D.
Thomas: I like it! Alright, well, as you all know, we’ll find out on Tuesday what the answer was and also we’ll hear a great interview with Phil Ferguson!
Andrew: And as always if you wanna play along with both Thomas and Phil, you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright that’s our episode! Oof, it was a marathon, Andrew!
Thomas: But, uh, great work! There was so much there, really appreciate the deep dive Andrew, as usual. [Sighs] Wow. Alright everybody, let’s hope – root for Blevins, or whoever! [Laughs]
Andrew: Yup! [Singing] Let’s go Blevins!
Thomas: Or whatever made up Senator Andrew had, I don’t remember, what’s his name again?
Andrew: Todd Young of Indiana.
Thomas: Todd Young, sure. I’m sure he’s real.
Thomas: Alright, we’ll see you folks on Tuesday.