Transcript of OA353: Duplicity and Impeachment

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, oh this is gonna be fun.  It’s episode 353, and no that is not the Megatron voice, I just sound like this.  How’s it going, Andrew?

Andrew:         Ah, it’s going fantastic for me.  I would ask how you are doing, but I know how you’re doing.

Thomas:         Well, I took enough ibuprofen to get down to a nice manageable 101-

Andrew:         Ooof!

Thomas:         Which is better than 102.8 or whatever.  There’s a big difference in that one degree.

Andrew:         Oh yeah, oh yeah. 

Thomas:         I start getting really out of it.  But no, I feel okay, just no voice.

Andrew:         Yeah, it’s when you’re frying an egg on your forehead, does the yolk cook all the way through or does it stay nice and runny?

Thomas:         As you know, I collect viruses.  I’m a connoisseur of viruses and the 2020 vintage is [Laughs]  [Chef Kiss] oh!  So great!

Andrew:         [Laughs]  Having two kids under 3 means you’re essentially gonna be sick for the next 10 years. 

Thomas:         Yeah.

Andrew:         The benefit is, OA listeners get to hear that beautiful deep husky voice!

Thomas:         Impeachment!

Andrew:         Oh man! 

Thomas:         Nightline!  Or whatever, let’s do that.

Andrew:         Let’s get some Barry White in the background! [Laughs]  

Thomas:         Here’s another cool trivia fact, I also happen to have the exact same symptoms as the coronavirus, so that’s good timing.  I know I don’t have it, but it’s awesome to be like, do I have it? [Laughs]  

Andrew:         I mean, do you know you don’t have it?

Thomas:         It’s … in Washington, that’s not… you know, somebody could have flown here and given it to me?  Anyway, impeachment!

Andrew:         Alright, [Laughs]  It’s not communicable over the internet, right?

Thomas:         Yeah.  I dunno, we’ll see.

Andrew:         Okay, well.  Everyone send love to Thomas through the internet.

Thomas:         So contrary to normal, Andrew’s gonna be doing the talking today.

Andrew:         Yeah!  I’ll pick up a little bit of the laboring oar this episode.

Thomas:         Yeah, I hope you’re up for it, but I dunno.

Andrew:         Yeah, I’m down to a 100.8, so, yeah!  So anyway.

Thomas:         Amateur.

Andrew:         So a couple of things happened this week, let’s talk about it! [Laughs]  

Thomas:         Yeah.

Andrew:         I really want, if the takeaway by the end segment is, I am hoping that we are going to time this with the argument that Senate Republicans are gonna pivot to, and I think they’re gonna pivot to this argument because it’s a legal technicality and it’s kinda hard to understand.  So far it hasn’t really been advanced and I’m gonna walk you through that.  Maybe they don’t!  This is only a small part of their brief, but it’s at least a new thing and it was kind of interesting, so that’s a little bit of a preview for the rest of the show.

Thomas:         Well before we get to that I know we need to talk about somebody who’s essentially a legal troll, now? 

Andrew:         [Laughs]  

Thomas:         Tulsi Gabbard?  Definitely acting in good faith.

Andrew:         [Laughs]  Oh man!  We are gonna break down, we’re gonna do the full break down of Tulsi Gabbard’s [Laughing] defamation complaint filed against Hillary Clinton yesterday.  Not just to laugh at Tulsi Gabbard, although we will laugh at Tulsi Gabbard.  [Laughs]  In particular, I had to revise my notes on this because, bit of a spoiler, Tulsi Gabbard is represented by real lawyers from a real law firm.

Thomas:         Wow.

Andrew:         So my first talking point was, you know, not Larry Klayman.  And then [Laughing] like three hours ago Larry Klayman tweets out “Judicial Watch will be filing an amicus brief in support of Tulsi Gabbard!” because of course they are.

Thomas:         [Laughs]  

Andrew:         I just wanna be like, you keep trying to help there Larry.  Go for it, buddy! [Laughs]  Yeah, it’s a perfect marriage between a façade of respectability and total crank-hood. 

Thomas:         You know, I don’t think Tulsi is my candidate of choice in the primary.  I’m just saying.

Andrew:         Yeah, no that’s fair.

Thomas:         I’m startin’ to think, maybe not my choice.

Andrew:         Look, we’re gonna break down the lawsuit, like I said because it’s interesting and because I think there are some fun lessons to take away from it in terms of, you know, reading lawsuits and digging beneath the surface because this is one where your gut check is correct.  This is a defamation lawsuit about – again we can talk about, it’s not quite this direct, but Hillary Clinton saying that Tulsi Gabbard is a Russian asset.  Your gut check, that can’t possibly be slanderous or libelous against a Presidential candidate is of course correct!

Thomas:         [Laughs]  Yeah.

Andrew:         If I Google “Donald Trump is a Russian asset” I get 47,000 hits, and I get prominent people – I get Andrew McCabe, Malcolm Nance, Don Lemon, James Clapper.  I mean, Craig Unger wrote a book called “House of Trump, House of Putin,”  which I think the subtitle is “Donald Trump is a Russian Asset Owned by the Mafia.”

Thomas:         [Laughs]  

Andrew:         Look-

Thomas:         It is my penis enlarger, yeah baby!

Andrew:         [Laughs]  Yeah, exactly.  We have said this on the show, we have tweeted this out from our accounts, and yes, I am trolling Tulsi Gabbard’s lawyers.  If you’re listening, this is a production of Opening Arguments Media, LLC, a Maryland Limited Liability Company, and you are welcome to sue us for defamation for the statement: “Tulsi Gabbard is a Russian Asset” (end of quote).  So you’ve got that to look forward to on Tuesday, but it’s not gonna be tied up in politics, we’re gonna have a lot of fun, it’s gonna be a classic deep dive.

Thomas:         Yeah, also the idea that you’re suing Hillary Clinton.

Andrew:         [Laughs]  

Thomas:         Who, I seem to remember, had some things said about her in 2016.

Andrew:         [Laughs]  

Thomas:         Oh my god.

Andrew:         Yeah, Bat Boy.  Also, and I swear, not a joke, we’re gonna talk baseball law next week.

Thomas:         Oh finally!  Because my Dodgers deserve the championship.  At least one.

Andrew:         That’s what we’re gonna talk about!

Thomas:         God, I’m so mad.

Andrew:         We’re gonna talk about the Houston Astros cheating scandal.

Thomas:         I’m so freaking mad, I can’t even tell you.

Andrew:         It’s gonna be a ton of fun.  [Laughs]  

Thomas:         It’s not gonna be fun!  It’s gonna be anger-inducing.  But I’ll try my best.

Andrew:         The Astros beat the Rays in a five game, best of three, so it went to decisive game five-

Thomas:         Ooh.

Andrew:         -and the pitcher that they hit around in game 5 had a 1.78 ERA on the season.

Thomas:         God.

Andrew:         So believe me!  As angry as you are, I would’ve loved to have seen the Dodgers-Rays world series.

Thomas:         Okay, good, we can bond over that.  I can’t wait, I’m excited.

Listener Letter from Todd Young

Andrew:         Oh, we’re gonna do it!  Okay, so Thomas, before I break down all of everything that’s happened this week which is, you know, somewhat substantial, I wanna tell you as a follow-up to last Friday’s episode, I heard back from listener Thomas Grimley who is a constituent, lives in Indiana and so is a constituent of Senator Todd Young.

Thomas:         I would’ve guessed that’s a Downton Abbey character, but, uh, sure.

Andrew:         [Laughs]  Exactly!

Thomas:         Lord Grimley, you say, wrote us?  Sent us a telegram!

Andrew:         He did have a monocle in his- [Laughs]  He dispatched forthwith a-

Thomas:         [Laughs]  

Andrew:         -communique, sealed in wax-

Thomas:         [British Accent] By courier!

Andrew:         [Laughs]  To Senator Todd Young of Indiana after we flagged him as, you know, a potential dark horse, and posted the reply that he got from Senator Young.

Thomas:         Mm-hmm.

Andrew:         I wanna read that air.  Look, if you want to be a Negatron, and your voice is in that register-

Thomas:         [Laughs]  

Andrew:         You can say “well, this is just a lot of the platitudes that Senators say.”  Look, if this were 1992 I would agree with you.  If you got this reply from a Ted Cruz I would be over the moon, so here’s what Todd Young writes back to Thomas Grimley.  He says:

“Dear Mr. Grimley,

Thank you for contacting me regarding the Senate impeachment trial. I appreciate hearing from you on this issue.

Article I, Section 2 of the U.S. Constitution provides the House with the ‘sole Power of Impeachment’ and Article I, Section 3 provides the Senate with the ‘sole Power to try all Impeachments.’ As Senate trial proceedings begin, I will uphold my duty as an impartial impeachment juror and carefully evaluate the facts and legal arguments presented. I take all my responsibilities very seriously and I hope the proceedings can be completed quickly so we can get back to the work Hoosiers elected me to do, including reining in health care costs, taking care of veterans, keeping Americans safe and secure, and continuing to grow our economy.-

Thomas:         Ha ha, yeah.

Andrew:         Yeah, I get it, those are Republican talking points.  He’s a conservative Republican.  But then:

“Please be assured I will keep your thoughts in mind as I evaluate the evidence and legal arguments during the impeachment trial. Once the trial concludes, I will provide you with an explanation of my vote.

Again, thank you for contacting me. It is an honor to represent you in the United States Senate.”

Thomas:         Huh.

Impeachment Call to Action: Call Your Senator!

Andrew:         You and I talked about this before going on the air.  We’re not gonna shill for our patreon this episode, the call to action I want everybody listening to this show to do is contact your Senators.  Both of them.  This is super easy to do.  You call 202-224-3121, that is the Senate switchboard, they will connect you with your Senator.  If you want their direct phone number you can Tweet @resistbot or you can text “Resist” to 50409.  Super duper easy to figure out how to contact your Senator, this is gonna take you zero seconds, just call the number that I said. 

If you have a Republican Senator call their office, and here is what you say, this will be in the show notes word for word, it’s two sentences:  “Hi! I’d like to Senator so-and-so, I’m a constituent.  I’m calling to ask Senator so-and-so to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.”  That’s it.  Not saying vote to convict, saying vote to allow the Senate to subpoena evidence and witnesses.  That is the goal on the horizon, that’s what you do if you have a Republican Senator.

Please, you’re going to be talking to staffers because your Senators will be on the Senate floor, so be super polite.  Don’t come in with liberal talking points, don’t come in with anger, don’t come in with anything, just that single polite message.  Hey, in order to determine if Trump is guilty or innocent I think I would like my elected representative, my elected Senator, to vote to allow the Senate to subpoena documents and witnesses.

If you have a Democratic Senator, equally important.  Call their office to thank them for their promised vote to allow the Senate to subpoena documents and witnesses.  That’s also important.  Look, outlets way bigger than us are targeting those folks and it’s good for them to have – their staff counts up pros and cons and relays that back to the Senator. 

No getting out of jail free if you live in California or Maryland, I’ve made this call, Thomas is gonna make this call, make the call.

Thomas:         Let’s do it.  Plus, they’ll listen to me because of how I sound right now!

Andrew:         Yeah, yeah!

Thomas:         Listen, you Senator!  Feinstein, is it? 

Andrew:         [Laughs]  

Thomas:         You need to do exactly-

Andrew:         Get Mendoza. 

Thomas:         [Laughs]  Yeah.  I like how you said that they’ll be on the Senate floor too.  That’s funny, that’s cute.

Andrew:         Yup.

Thomas:         I mean, they’re supposed to be on the Senate floor, but we’ll get to it, we’ll get to it.

Andrew:         Why don’t we get to that now! [Laughs]  

Thomas:         It’s so much to talk about.  That’s a great message, like you said, no shilling this week, that’s our shilling, everybody do it.  I’m gonna do it, Andrew may have already done it, we’re gonna do it.

Impeachment / Senate Rules

[Segment Intro]

Thomas:         But yeah, if we’re getting to the impeachment rules, I really wanted to ask you this, I’ve been dying to ask and I’m sure a lot of listeners have as well because we saw, if you’re somebody who pays attention to this stuff I’m sure you saw a lot of weird headlines about how “did you know they can only drink water or milk?”

Andrew:         [Laughs]  

Thomas:         I’m like what?  That can’t be right.  But then, also, Roberts is up there saying “well, no talking on pain of death.” 

Andrew:         [Laughs]  

Thomas:         You’ll get the guillotine, so I’m thinking oh wow, these are some strict 18th Century rules that we’ve got, and you have to sit there and all that, then you come to find out Republicans are just leaving.  They’re not even watching, they’re taking long breaks, they’re leaving, they’re not there and it drives me insane.  So I guess the question is how many of these rules are real and why is there no enforcement?

Andrew:         So, two great questions, and what that reveals is the looseness over what we’re calling the impeachment rules.  There really are three levels of rules here, and I know that seems completely insane and arcane and that’s why you listen to the show.  So first, the milk stuff. 

Thomas:         [Laughs]  

Riddick’s Senate Procedure – Milk allowed on the senate floor

Andrew:         All of that, you can only drink water or milk on the Senate floor, you can’t have your phone, you can’t get up except for emergencies.  Those are all real rules, but they’re not impeachment-specific rules.  They are in [Laughing] a book.  A book that, as far as I can tell, is like 4,000 pages long.  I’m not making that up.

Thomas:         It’s called, like, the United States Dairy Organization Conglomerate?  Rules of Impeachment?  Rules of Order?  [Laughs]  

Andrew:         [Laughs]  It is called Riddick’s Senate Procedure.

Thomas:         [Laughing] Brought to you by Got Milk?  [Laughs]  

Andrew:         [Laughs]  Brought to you by longstanding Senate parliamentarian Floyd Riddick.  It is thousands of pages long.  I cannot say that I have read all of it, I cannot say that I have read a significant fraction of it, but for example, the D’s – the milk rule is not a separate rule, it’s on the subpage of the debate page.  The debate begins, is 83 pages of rules about debate that begins on page 716.  Now this thing is in alphabetical order, so it’s kinda not hard to extrapolate out from that, when I say that it is thousands of pages long, you can’t get the single PDF of this anywhere on the internet.

Thomas:         Ha.

Andrew:         I’m gonna link in the show notes, but what it links is, it links each of these individual:  Adjournment, Amendments, Appeals, Appropriations, Bills, Committees, Daily Sessions, and I’m skipping over like 30 at a time here.  There are hundreds of these chapters and each one – some are only a few pages long but some are 100 pages long.  It’s amazing.  So yes, in fact on page 758 under “Debate” is a specific rule about drinking milk.

Thomas:         [Laughs]  

Andrew:         Would you like me to read it to you?

Thomas:         Please!

Andrew:         [Laughing] Oh this is great! And by the way, this was added in 1962 when Everett Dirksen said “I’d like a page to come bring me a tall glass of milk, is that cool?” and the Senate parliamentarian said “Yeah, yeah, yeah, that’s fine.”  So under “Debate,” again we’ve made reference to the Blazing Saddles, “Land: see Snatch,” right? 

Thomas:         Yeah.

Andrew:         This is Debate (comma), Milk While Speaking: [Laughs]  and it says, in its entirety, “Senate rules do not prohibit a Senator from sipping milk during his speech.” See footnote 324. [Laughs]  

Thomas:         Oh that is the best!

Andrew:         And indeed, that tracks back to – I think I said 1962, sorry it’s 1966.  January 24, 1966, section 89-2 of the Congressional Record on page 1023, which I have looked up the Congressional Record and is in fact, hey!  Okay if I get a page to bring me a nice tall glass of milk?

Thomas:         Now, is chocolate milk okay? 

Andrew:         So there’s no-

Thomas:         Point of order!  [Laughs]  

Andrew:         There’s no guidance.  This was 1966, so is soy milk okay?

Thomas:         Plus the way you put that it sounds like if you just ask the parliamentarian like hey, can I have a Mai Thai or something and they’re like yeah, that’s fine.

Andrew:         [Laughs]  

Thomas:         Is it so much a rule?

Andrew:         It’s now part of the formal agreed upon Senate procedure, because there’s a general prohibition on drinks, but there are specific exceptions for water and for milk.  [Laughs]  So all I know is if I were a member of the Senate I would have my staff put some caffeine pills in with that milk or-

Thomas:         But my point is it sounds like you can get exceptions, right?  Can’t they just be like hey, can I have a coffee?  And they’re gonna be like yeah, we’re not savages.

Andrew:         And that’s the second half of this.  These are procedures.  The enforcement is left up to the Senate itself.

Thomas:         Hmm.

Andrew:         Look, some of that is enforceable in the sense that it discusses how they handle treaties, how they handle vetoes, how they handle a Motion to Lay on the Table, right?  But all of it is really at the discretion of the Senate body, so that ties into – I got tagged on a Seth Abramson Tweet in which he said “retweet if you think that Democrats should move to expel from the Senate any Republican who’s out of their chair for more than 15 minutes” and I think that’s a terrible idea.  I think it’s a terrible idea because ultimately the vote for that will come down to the Republican controlled Senate. 

They just voted down a whole bunch of super reasonable proposed amendments by Chuck Shumer, so why would you give them the talking point?  Why would you potentially lose a Joe Manchin over something that has zero chance of passing and why would you focus on process? 

Look, I get it, it’s not a good look that Republicans are up and milling about and defying these rules, but let media reports cover that.  Let them look bad.  Don’t start wandering into procedural territory when we are so strongon the substance of this.  Let’s keep the laser-like focus on the goal which is how do we ensure that the Senate will hear evidence?  Will get to subpoena documents and witnesses? 

That kind of goes back, so we did a little bit of a rabbit trail on the milk thing, which, totally fine ‘cuz milk is delicious and hilarious.  Actually, milk is not really delicious, but it is hilarious. 

Specific Rules governing impeachments

Let’s go back, I said there were three layers of rules, so those are the background rules that apply, they’re supposed to apply whenever the Senate is in session.  As you can tell they are [Laughing] rather loosely enforced most of the time, except that sitting on top of the general rules are the specific rules governing impeachments.  Those were last modified – well they were last modified in connection with this impeachment, prior to that they were last modified during the Clinton impeachment.  Prior to that they were last modified in 1989. 

Those rules are the rules that require all of the Senators to be present.  That state that the Senate business will continue until the impeachment trial concludes.  Those last Clinton-era rules are the ones that we talked about the very first time we tackled this House impeachment inquiry began.  So that was what contemplated the potential for motions to dismiss, for example.  And we’re gonna put a pin in that, because we’re gonna get back to that.

Senate Resolution 483

Then sitting on top of those two layers, at the apex of the pyramid, or at the top of the trapezoid, is Senate Resolution 483.  Those are the specific rules passed with respect to this specific impeachment that came out Tuesday morning.  It is really, really significant to take a look at those specific rules because in a time in which optimism is in super short supply, this is significant that the proposed rules distributed by Mitch McConnell the night before differed from the actual rules that were put into Senate Resolution 483. 

Now, they differ in one trivial way.

Thomas:         Yeah.

Andrew:         Which is that McConnell proposed having two days in which 24 hours of testimony would be presented by both sides.  The reason to do that is super simple, you’re starting the trial at 1 pm so 24 hours over two days means that more than half of it is gonna come at night when people have already tuned out and too late for the 6:00 news to digest.  And really too late for the evening news to digest some of it.  That got moved to three days.  That is significant because that move, while a tiny concession, came at the request of Republican Senators.

Thomas:         Well, yeah, so this is allegedly, what, Susan Collins or whatever?  So we’ve got a couple Republicans who might’ve requested this, and I love that on one hand, great, you got it to three days.  On the other hand when it comes to getting witnesses or evidence it’s like no, we’re not gonna do that, but we will give you three days!  Seems kinda … miniscule to me.

Andrew:         I get that, but let’s talk about what else is in there.  So that’s the most trivial, it went from two days to three.  The second major change is that the original draft said that the House evidentiary materials may be admitted into evidence by motion, after the Senate has disposed of the question of whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses or documents.  In other words, it would not be part of the record of impeachment by default.

That got changed to materials in the House record will be admitted into evidence.  And subject to hearsay, evidentiary, or other objections that the President may make after opening presentations are concluded.  That’s a substantive change.

Thomas:         Hmm.

Andrew:         And that allows what you have seen in the first couple of days of opening arguments, which is as the House managers have presented testimony they’ve played video clips of witness testimony.  That and the underlying documents are now all part of the record.  Because of that I’m gonna actually skip ahead.  This was going to be part of the later discussion, this may be coming up right now as we’re recording it. 

Last night the House transmitted, along with the rest of the record, a document that was before the House Impeachment Inquiry Committee.  That document was from Jennifer Williams, it was a supplement to her testimony.  Jennifer Williams was Vice President Mike Pence’s aide who testified about Mike Pence’s September 17th call with President Zelensky.  Remember on the timeline the whistleblower’s complaint was in August.  September 9th was when Congress realized that had been illegally diverted and they began the inquiry, September 11th was when OMB finally released the aid knowing they’d been caught, and then 6 days later Pence has a call with Zelensky.

We do not have the transcript of that call.  We have no idea the contents of that call.  What we do know is that publicly Trump continued to pressure Zelensky well into October, continued to say “they still need to go investigate the Bidens.”  So I don’t have proof that this is a smoking gun, what I do know is that Zoe Lofgren, your representative – I don’t know if she is your representative, but representative from California.

Thomas:         No, I don’t think so.  Mine’s Doris Matsui, yeah.  I was pretty sure it wasn’t, but then I was gonna be afraid, I should know my representative!

Andrew:         [Laughs]  Sorry.  So what she said was “I can’t describe for you the contents of this letter because it has been marked as confidential in the interests of national security.  What I can tell you is that classifying something as confidential and in the interests of national security because it’s politically embarrassing is not a valid classification.”

Thomas:         Oh my gosh. 

Andrew:         So, you know, infer what you want.  I don’t think they would be making a big deal about this letter if it were nothing, and the significance is now that’s part of the record.  John Roberts has directed that be reviewed in-camera, that it be reviewed by the Senators but not released to the public.

Thomas:         Really?

Andrew:         But here’s what that means.  Under the “Speech and Debate clause” when we get to the questioning by Senators, any Senator can read the contents of that letter into the record.

Thomas:         Yeah!  Okay, do they know this?  Are we gonna write to them about that?

Andrew:         That’s a great question!  [Laughs]  The commentary I saw, including commentary from Claire McCaskill on MSNBC last night was sort of like questionable about it.  This is not a question.  The Speech and Debate Clause absolutely, 100%-

Thomas:         It’s a one weird trick, isn’t it?

Andrew:         Yeah.  Protects, grants blanket immunity to anything a Senator says on the floor of the Senate in the conduct of their business.  This has been well established since the 1970s, since June 15, 1971 when Senator Mike Gravel from Alaska received a copy of the Pentagon Papers and then a couple of days later he read that into the record.  It was – there was a classic landmark Supreme Court case about the Pentagon Papers and it was declared and marked as classified and Mike Gravel read it into the record.

Thomas:         Wow.

Andrew:         Because he realized that it was being marked as classified because it embarrassed the U.S. government but not that it contained any actual military secrets.

Thomas:         Okay, we have to do this.

Andrew:         Yeah.

Thomas:         Democrats must do this.

Andrew:         Yeah, absolutely they need to do that.  This may be happening [Laughs]  while we record – well it won’t happen until we get to when Senators can talk.  So that’s gonna be next week, but we will have time to let our Democratic Senators know, hey you can read this into the record with zero repercussions and they should.

So let’s go back, that’s a significant change, the evidence is admitted, not that there’s gonna be a vote.  We’ve talked about the schedule, I think it is super telling that the Republican Senate trying to hand as much of a victory to Donald Trump as they can, decided that their defense team would start on 1:00 on a Saturday.  That’s a pretty big tell that you don’t want people listening to your defense and that is because [Laughing] we get into President Trump’s defense it is complete and utter nonsense, no surprise there. 

So Democratic opening arguments will end on Friday, the Trump opening arguments will start on Saturday, continue to next week, and then the Senate will get 16 hours, presumably 8 for each side, to question.  We’re willing to help on that, by the way!  I will be Tweeting out, we might do an episode of all of the things that members of the U.S. Senate ought to question Donald Trump’s lawyers about in connection with impeachment because I’m already gonna flag some for you when we get to the legal arguments where they are making just nonsense statements.

Thomas:         Yeah.

Andrew:         And it’s easy to ask directive questions.

Thomas:         I think the defense is gonna amount to “well sure it’s impeachable, but is it impeachable though?” I think that’s pretty much…

Andrew:         [Laughs]  Yeah!  We already described the criming-

Thomas:         Yeah.

Andrew:         -so there’s no crime here.  [Laughs]  We’ll get to that.

After those 16 hours there will be two hours of response by each side, then here’s the critical part.  This is word-for-word from Senate Resolution 483, there will be a vote on (quote) “any motion to subpoena witnesses or documents.  Following the disposition on that motion, other motions provided under the impeachment rules shall be in order.”  That is code for what we have described, that is code for a motion to dismiss.

Thomas:         Hmm.

Andrew:         So these are literally all the marbles right now.  If the Senate votes to allow witness testimony, to subpoena witnesses or documents, then they will proceed.  If not, a motion to dismiss will be in order and that motion will pass.  There is zero chance that a Senator is going to vote against subpoenaing additional documents or witnesses and then vote against the motion to dismiss.  They will have said okay, we’re hearing as much evidence as there is to hear, okay, well then now we get to decide. 

That’s the entire game, that’s where our objective is focused. Do not try and convince your Senator that he or she should vote to convict and remove Donald Trump, that’s not the game at this point.  The game at this point is, let’s see the documents, let’s hear from witnesses. 

Look, again I’m Optimist Prime.  I thought that in April of 2019 Bill Barr would be impeached, okay?  I have continued to underestimate the depths to which this administration and its defenders would sink, I have continued to overestimate the conscience or at least the long term self-interest of Republicans who have been co-opted by Trump, I could be wrong here.  [Laughing] I really don’t wanna be wrong!  It’s why I focused on Todd Young. 

If you are in your 40s, in your 50s and you think you’re gonna be in public service for another 20 years, you have to know this information is gonna come out!  You can’t keep it buried forever unless Trump completely engineers a takeover of the government.  It will come out and you will be adjudicated as collaborating with the people who kept this information out of the public eye at the most critical time, and that doesn’t end well for people!  There’s a reason why when you go back and ask people “who’d you vote for in 1972, Richard Nixon or George McGovern?” all of a sudden George McGovern wins in a landslide instead of losing every State!

Thomas:         Yeah, when we know that actually nobody voted for McGovern.

Andrew:         Literally!  He lost in what was then the largest landslide in U.S. Presidential history.  This doesn’t end well for people.  I feel like I’ve given up on appealing to the conscience, the non-existent conscience of Republican Senators and now I want to appeal to their naked self-interest.

Thomas:         Yeah.

Andrew:         That’s why you need to call them. 

Thomas:         And it’s easy to be, as you said, it’s easy to be defeatist and negative and say well look, if you look at the numbers only 10% of Republicans or something support impeachment and conviction so therefore these Republican Senators just have no incentive, but you still have to try.  You still have to make them do it. 

I think why I’m so glad that Democrats went through with this impeachment and are doing everything they can is don’t do the cover-up for them.  Sure, they have no conscience, they have no values, they’re gonna cover for Trump, but make ‘em do it!  You don’t just say well, we’re not gonna convict him so we might as well not try.  Well, then you’re participating!  So do everything you can and I’m glad that you’ve given me and the listeners a bunch of tips for what we can do to try to influence this in what little way we can.

Andrew:         Well, I couldn’t agree more with that.  Yeah.  [Laughs]  When you lay down it makes it easier for them, and that does two things.  Number one, that moves the Overton window because what happens here will be precedent for what happens in the future.  Already, as we’re gonna talk about, Trump’s brief cites what Democrats said in the impeachment of Bill Clinton as being dispositive in the impeachment of Donald Trump.  [Laughing] What your elected officials do right here matters. 

The second aspect, and you know, I got into what I hope was a friendly exchange with a listener on Twitter who was expressing defeatism, and as I point out, [Laughs]  I say shades of the Tulsi Gabbard is a Russian Asset.  It isn’t that you are doing the express directed bidding of the Russians when you have a defeatist attitude, but that is what the Russians want! 

Our intelligence agencies report, the Senate Intelligence Committee report summarizing all of our domestic and international intelligence agencies says that as a core strategy of the Russian efforts to hack the 2016 election – which are undoubtedly being replicated in 2020 [Laughing] since they were successful – included spreading and promoting despair and dissension among the left.  That’s what they wanted to do, so let’s not do the thing that a hostile foreign power wants us to do. 

I’m not saying if you’re feeling despair that that means you’re a Russian stooge, I’m saying when you act on that despair – in-act on that despair-

Thomas:         [Chuckles]  

Andrew:         -you are doing what the Russians want to do.  You are doing what the people who want to keep Trump in office want you to do, so maybe you should rethink that.

Thomas:         Well said.

Impeachment Briefs

Andrew:         Shall we delve into the briefs?  [Laughs]  

Thomas:         Uh, sure!

Andrew:         Oh, man!  I’m only gonna have time – ‘cuz again, the [Sighs] here’s the best way to describe, and by the way I want to give a shout out to my associate, Morgan Stringer at the law offices of P. Andrew Torrez who did some amazing work compiling some of this for me.  The best way to describe Trump’s brief here is it’s a cargo cult legal brief. 

Thomas:         [Laughs]  

Andrew:         I’m 100% serious about that.  It looks like a legal brief, it’s formatted like a legal brief, it has headings like a legal brief, but the content is just broken coconuts and twigs and stuff.

Thomas:         [Laughs]  

Andrew:         It’s bananas in pajamas!  Each and every argument that is made, it’s 110 pages long with a 60 page appendix.  Each and every argument that is in here is wrong on the law and then wrong on the application of the law to the facts.  I mean, it’s kind of impressive in its own way that it could be that wrong! 

There is one argument at the end that I flagged for you at the beginning of the show that is clever in a demented sort of way and I want to make sure that we thoroughly debunk that on this show so that if it becomes a featured argument over the weekend or early next week you will have a resource, you will be able to tell Uncle Clarence, hey, no no no, Opening Arguments debunked this in advance, this is a garbage argument.  Because it’s a technical jargony, legally-sounding argument and so if you’re objective is to throw as much poo into the air it certainly serves that purpose.  It’s not a good argument but it is sort of superficially like oh!  They got that going for them. 

But let’s start off – I want people to understand.  Again, I’m reaching out to you here Uncle Clarence.  We don’t need to dwell over much on the fact that the President’s case here is maintained on lies and deception, but if you’ve got somebody who is on the fence it is super easy to demonstrate this in really two key ways. 

criminal statute violations are included under the broad impeachment articles

So the first is that the major misconception of the background legal argument that’s being made in the Trump brief, the principle they hope you don’t understand, is the fact that the impeachment articles are more broad than applicable federal statutes doesn’t mean that they don’t also include those statutes!  Okay?  Let’s be specific about that. 

We talked about how I would’ve drafted these impeachment articles a little differently.  Instead of calling them Abuse of Power and Obstruction of Justice, I would’ve called them Bribery and Obstruction of Justice and I would’ve tied them to the specific language of the specific laws that Donald Trump has violated.  These articles go beyond that, and we’re gonna talk about it, but they include each and every element of those two specific crimes. 

Again, we’ve done this to death on the show but it’s worth repeating.  Article I, Abuse of Power, includes the crime of bribery, and that is 18 U.S.C. § 201(b)(2), we will give you the link in the show notes.  Bribery is whoever, being a public official, (that’s Donald Trump), directly or indirectly corruptly demands, seeks, receives, accepts, or agrees to receive to agree or accept any thing of value personally in return for, either A) being influenced in the performance of any official act, or C) being induced to do or omit to do any act in violation of the official duty of such official or person, is guilty of bribery.  Each and every one of those elements is present and alleged in Article I.  Article I accuses the President of committing a crime.

Similarly, Article II is called Obstruction of Congress.  It too accuses the President of committing a crime.  That crime is obstruction of justice, 18 U.S.C. § 1505, and it says whoever corruptly influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House or any committee of either House or any joint committee of the Congress is guilty of obstruction of justice.  Then Article II lays out each and every aspect of the elements of that particular offense.

Now, it is also true that these articles include additional allegations above and beyond the statutory definition, and the reason they have done that is because if they failed to do so, Trump would be making a different argument.  Here’s the argument he would be making.  The argument he would be making is yeah, uh, the constitution says the President can only be impeached for treason, bribery, or other high crimes and misdemeanors, and you’ve accused me of bribery, but the bribery that was written into the constitution in 1789 was written way before 18 U.S.C. § 201, which wasn’t passed until 1962. 

So, you know, under the Originalist theory of jurisprudence you’re not accusing me of capital-B Bribery of the kind of bribery that the founders really wanted to protect against, you’re only accusing me of garden-variety bribery that’s meant to cover random executive branch officials who take a $50 in exchange for shredding a document here and there.  That’s not impeachable, so ha ha I win.

In order to avoid that argument, Article I (and same thing with Article II), they’re written more broadly.  But again, now I’m going to read you a portion of the President’s brief and you will see it is based on this sleight of hand.  It is based on the idea that if the article contains more than that allegation all of a sudden now [Laughing] it’s not alleging a crime.  It’s hard to imagine that even a lawyer as stupid as Jay Sekulow does not understand that he is deliberately lying when he says this.  It’s hard to say the line between incompetence and lying, there’s no doubt that this crosses that line! [Laughs]  

So, page 14 under “Text and Drafting History of the Impeachment Clause” this section is arguing that the founders intended for impeachment to be limited.  They’re wrong on the history, but it doesn’t matter.  It says “Treason and bribery are well defined offenses and are not at issue in this case.”

Thomas:         Hmm.

Andrew:         You might think that’s a strange sentence and that it should be supported by actual evidence citation in a brief that has literally hundreds of footnotes in it?  Uh, no!  No citation, no footnote, just sort of the brazen assertion, oh, well it’s not like the President is charged with bribery!  The President is charged with bribery.  [Laughs]  To say that is just kind of crazy.

Then they say no, no, he’s only charged with high crimes and misdemeanors, and here the argument is – and I just wanted to seize on this, again thanks to Morgan [Laughing] this is, I think, really the strongest example of the cargo cult, “we’re gonna use Latin in an effort to make this sound kind of legal-y.”  [Laughs]  So let me know what you think of this phrase, Thomas!

Ejusdem Generis definition

“The structure and language of the clause—the use of the adjective ‘other’ to describe ‘high Crimes and Misdemeanors’— calls for applying the ejusdem generis canon of interpretation.”

Thomas:         Oh, yes. 

Andrew:         [Laughs]  Yeah.  That brings back lovely memories to all of the lawyers and law students who listen to this show.  Ejusdem generis is a Latin phrase about how you interpret things in a list. 

Thomas:         Yeah.

Andrew:         What it means is things in a list must all be things of that kind.  So let me see if I can come up with an example for you.  So suppose you have a baseball field and there’s a sign on it, and it says “This field shall only be used for baseball, soccer, football, or other events.”  Now suppose you wanna have a bar mitzvah on the field.

Thomas:         Okay.

Andrew:         On the one hand you might be like, you know, a bar mitzvah is an event.

Thomas:         Other events is anything, but on the other hand-

Andrew:         Yeah, bar mitzvah’s an event, yeah.

Thomas:         It’s implying that it should be a sport or something.

Andrew:         Right.  So that’s what ejusdem generis is.  It implies that despite the one reading, it says where a phrase is capable of multiple meanings you disprefer the broadest possible meaning if it’s in a list that seems to share other attributes.

Thomas:         That makes sense.

Andrew:         It makes total sense!  That doesn’t help them here.  [Laughs]  Right? 

Thomas:         Yeah.

Andrew:         Because treason and bribery, what those two events have in common is acting in a way that is incompatible with the duties of the President as Commander in Chief.  Something that is contrary to your oath of office.  Holding up aid to an ally in order to benefit a hostile foreign power is 100% consistent with that reading!  The articles on their face accuse Donald Trump not only of the specific crime that is mentioned in the text of the constitution as a basis for impeachment, but also of a kind of offense that is on the same level as the offenses that are listed.  That is something that is inconsistent with your performance of your duties as the President of the United States.  

[Inhales Deeply]  And you might also notice that we have kind of an immediate precedent to deal with and that is, I seem to recall that Bill Clinton was impeached for lying about a blow job, and lying about a blow job certainly seems to be much more in the vein of a bar mitzvah as compared to a football game than a crime that is equivalent to treason and bribery.  This brief tries to tackle that in, I dunno, maybe the stupidest way possible?  [Laughs]  

Thomas:         [Laughs]  

Andrew:         This is pages 18-19, in which it says “President Clinton was impeached on charges that included perjury and obstruction of justice, both felonies under federal law” and then there’s a little footnote that just cites to the Clinton impeachment articles.  So again, that tells you literally nothing because there are federal laws that prohibit the conduct in which Donald Trump has engaged.  Saying that you can be impeached for any felony is 100% at odds with the argument that they just made because perjury over something unrelated to the office is clearly not following the principle of ejusdem generis, and you know, it’s a felony to mislabel oranges from their country of origin.  The idea that we’re responding to this by saying no no no, well those were felonies, completely undercuts the argument. 

The entire section makes absolutely no sense because they just went through the three pages on the original meaning of the framers and then say but the test is what’s currently in federal law, knowing that virtually all of the federal criminal code is 50, 60 years old or less.  It’s mind boggling to me.

Thomas:         Haven’t you always said that there’s no federal murder law?

Andrew:         Yeah!  That’s exactly right.

Thomas:         So if Trump murdered somebody it’d be like well?  It’s not a federal crime so we can’t impeach him for that.

Andrew:         [Laughs]  It is – here’s the way the section is written.  “An impeachable offense requires a violation of established law that inflicts sufficiently egregious harm on the government that it threatens to subvert the constitution.”  So yes, and in fact I love this.  I think this is, we’re gonna give this one away as a freebie even before the weekend. 

Democratic Senators:  I want you to ask Pat Cipollone the President’s own hypothetical.  If Donald Trump were accused of murdering somebody on 5th Avenue, would that be impeachable?  Because there is no answer.  They have to say, under their construction that they put from pages 13-19 of their brief, murder would not be an established federal law that imposes any harm on the government.

Thomas:         Yeah.

Andrew:         If Donald Trump just kills some poor schmuck on the streets-

Thomas:         Some non-government worker.

Andrew:         Non-government worker, that’s right!

Thomas:         Yeah.

Andrew:         Yeah, a private citizen on the streets of Manhattan, under their theory that’s not impeachable.  That’s bonkers!  That’s bananas in pajamas, that’s what this brief suggests.  [Laughs]  Would you like to hear how this brief characterizes the facts of the case?

Thomas:         Yes.

Andrew:         [Laughs]  [Sighing] Oh man!  And this is a question you highlighted for me because in trying to respond, even reasonable sources are sort of garbling what should be a super clear argument.

Thomas:         Oh are we gonna deal with that one?  Yeah I did want to-

Andrew:         Yeah, yeah.

Evidence of Quid Pro Quo in withholding military aid

Thomas:         I heard, so on the 538 Podcast which I listen to and also on something else.  I’ve been in a fever haze, but I’ve been watching some cable news which I never do, but because of the impeachment stuff I’ve been watching it.  But anyway, I heard someone else say it too and I’m genuinely baffled because again, this is not Fox News, this is not coming from [Laughs]  Infowars, this is not coming from the Republican sources or anything and Clare Malone on 538 just said that we still don’t have, I guess, what’s the phrase she used? 

We don’t have hard proof that the funds were withheld for a quid pro quo.  I guess she’s trying to say that while we do pretty much, we have established that the White House visit was withheld in exchange for the investigation, we don’t necessarily have proof that the funds were.  The way she presented it was kind of matter of factly, like everybody knows this, and I was just confused because it seems so clear.  I mean, Mulvaney pretty much said that, didn’t he?  Didn’t he say we are withholding this stuff, it happens all the time, get over it?

Andrew:         So A, that is literally what Mulvaney said, we’re gonna talk about that in a second.  Yeah, here’s what Clare said, she said “The people who are closest to the President and can speak to his state of mind, Mick Mulvaney, the people who are in charge of executing his decisions, those people we haven’t heard from.”  Now what I think she meant to say, and what the Democrats need to be super clear about is – and by the way I thought Adam Schiff did really an exceptionally good job of this yesterday.  We haven’t heard from those people because they were directed by the President not to appear and not to respond to subpoenas.  

Thomas:         Right.

Andrew:         We haven’t heard from them under oath.  What we do have are three separate important aspects here.  Number one, we’ve heard from them in non-testimonial capacities.  As you just pointed out, I will link the Politico transcript of the Mulvaney press conference that he gave, in which he said “Did Trump also mention to me the corruption related to the DNC server?” (Crowdstrike) “Absolutely, no question about that.  But that’s it, that’s why we held up the money.  The look-back to what happened in 2016 certainly was part of the thing that he was worried about corruption with in that nation.” 

Then when asked, uh, Mr. Mulvaney, didn’t you just admit to a quid pro quo?

Thomas:         [Laughs]  

Andrew:         He says, (quote) “we do that all the time with foreign policy, I have news for everybody: Get over it.  There’s going to be political influence in foreign policy.  That’s going to happen.  Elections have consequences,” thanks for listening, “and foreign policy is going to change from the Obama administration to the Trump administration.” 

Then, you know, what Trumpers will point to is 5 hours later the White House-

Thomas:         Uh, forget everything I just said-

Andrew:         [Laughs]  Yeah!

Thomas:         [Laughs]  Quid pro quo.

Andrew:         Literally said!  Issued a written statement attributed to Mulvaney-

Thomas:         He’s like “it’s come to my attention that I admitted to committing a crime.”

Andrew:         [Laughs]  

Thomas:         “I’d like to undo that, please, thank you.”

Andrew:         [Impersonation]  Once again the media has decided to misconstrue my comments to advance a biased and political witch hunt-

Thomas:         [Laughs]  

Andrew:         -by using my words against me.  Let me be clear there was absolutely no quid pro quo between Ukrainian military aid and any investigation into the 2016 election.”

So, yeah, number one you have pretty good non-testimonial evidence.  Number two, you have the documents that would prove this relationship, which have been withheld by the President, and number three, the witnesses that we have heard from have given some incredibly compelling circumstantial evidence, but also I don’t know how that argument – if Clare were sitting across the table I would say well, what do you do with Gordon Sondland? 

Gordon Sondland talked to President Trump directly.  This was the – and Brian, you can leave in this clownhorn.  This was the “Zelensky loves your ass, Mr. President, he’ll do anything you want!  Yeah, he’s absolutely gonna make the announcements.”  That is exactly what this brief and that position allege we do not have.  No, we don’t have it from Mulvaney who was the mastermind, but we have it from Sondland who was the hit man.

Now match that up with what the brief says.  This is on page 81: “There are only two people who have made statements on the record who say they spoke directly to the President about the heart of the matter— Ambassador Gordon Sondland and Senator Ron Johnson.” Now we’re gonna exlcude Senator Ron Johnson ‘cuz he’s a hack, “And they both confirmed that the President stated unequivocally that he sought nothing and no quid pro quo of any kind from Ukraine.”

Uh … fine.  You wanna make that argument?  This is an argument prosecutors deal with all the time.  This is an argument anybody who’s seen The Godfather understands.  [Mob Boss Impersonation] “I’m not tellin’ you that anything bad should happen to Polly the snitch, I’m definitely not tellin’ you to go whack him!”  It’s mind-boggling to me.  It requires a level of dishonesty or of naivety that quite frankly nobody listening to this show should have either of those, so I don’t get that argument. 

That is the primary factual argument that the brief tries to make and news sources need to be much better at bracketing this with Trump’s lawyers are arguing we don’t have direct testimony, but one, we do have direct testimony from Gordon Sondland and others, and two, to the extent that we don’t have direct testimony, that’s what the pending motion next week is about.  Getting those documents, getting that testimony. 

Thomas:         Yeah, well maybe that’s what people mean when they say this.

Andrew:         I think they do?  Yeah, but you’re right that it comes off weird.

Thomas:         Yeah.

Direct Lies in the President’s brief

Andrew:         The rest of the briefs on facts and, you know, we’re running late.  We knew this was gonna be a big episode.  But it is not hard to prove, again to Uncle Clarence, that there are things that are direct lies.  For example, page 67-68 are talking about the Schiff, in which the depositions were initially held prior to the public examination and cross-examination of witnesses before the House.  [Laughs]  It is described in the brief as “secret hearings in the basement bunker” in which they allege that the President was (quote) “denied the right to have counsel present, to cross-examine witnesses, and present evidence.”  That is 100% a lie. 

You can look at Politifact which is quoting Philip Bump of the Washington Post who just did a real simple word count.  Looked at Colonel Alexander Vindman’s deposition and [Laughs]  found out that 44% of the transcript are questions or answers from Democratic members of staff, 41% are members from Republicans, and 15% were discussions and objections, colloquy between Democrats and Republicans, so you know, a majority of the time spend deposing Alexander Vindman was spent either by Republicans asking questions or by Republicans objecting to stuff, so when you say “we weren’t allowed to ask questions” you’re lying!  You’re lying and it’s obvious that you’re lying and it is instantly fact-checkable.  Uncle Clarence, give it a fact check.

Thomas:         But when is it gonna matter that they’re lying?  Does that ever happen?

Andrew:         Look, if you want optimism on that, the latest polling numbers show overwhelming support, in the 70’s, for the Senate being allowed to subpoena witnesses and receive documentary testimony.  That is majorities, super-majorities of Democrats and independents, and strong pluralities among Republicans.  It should matter.  It should matter to the constituents – it does matter to the constituents of people like Todd Young.  Does it shake somebody who parrots Fox News?  No it doesn’t, but there are lots and lots of people who identify as Republicans who are saying yeah, if it’s all a witch hunt great, let’s have an actual trial. 

I tweeted this out earlier today.  To me the most bizarre talking point that Republicans are engaged in right now is the “how dare you suggest we have witnesses at this trial?!”

Thomas:         Yeah.

Andrew:         I mean, what the hell kind of argument is that?  It’s mind boggling.

Thomas:         Did you catch – I can’t believe the world we live in.  Did you catch the Trump at Davos? 

Andrew:         Oh yeah!

Thomas:         He said that the impeachment trial is going well because, and (quote!) “honestly we have all the material, they don’t have the material” (end quote).

Andrew:         Yeah!   

Thomas:         How?  [Laughs]  How do we live in this world, Andrew?

Andrew:         I, I …

Thomas:         Wow.  You’re bragging about the fact that you’ve withheld the evidence and that’s why the impeachment is going well?  How about, like, it’s going well because I didn’t do anything?  Unbelievable.

Andrew:         Yeah.  I’m not often at a lack of words and you hear that.  It is part of my underlying thesis that you can’t live in this world forever.  Cognitive dissonance is a powerful thing and eventually it gets resolved.  This is what we’re trying to do, is push folks towards resolving – look, there will be a breaking point.  You cannot have a country in which, you know, there’s never been one in history that is premised upon denying fundamental facts about the universe.  The only question is can we stop it in time? 

Thomas:         Yeah.

Andrew:         That’s part of what we’re trying to do.

Thomas:         At the very least there’s an election coming up.

Andrew:         Yeah.

Thomas:         That’ll probably be the only thing.

Duplicity argument

Andrew:         So I wanna address, this is the very last argument made in the brief.  It is designed to be deliberately confusing because again, the strategy is blender full of feces with the lid off.  This is an argument called “Duplicity.”  Begins at page 106 in the brief.  Duplicity does not mean duplicitousness, does not mean lying ‘cuz they’ve done that throughout the entire brief.  It’s a very, very technical doctrine about how a federal criminal indictment can be brought.

Let me unpack it a little bit because you really need to understand this in order to decipher the nonsense that I predict you are going to hear starting on Saturday and leading into next week.  Let’s talk about the opposite of duplicity first, because this is really a problem in the federal criminal system, and that is multiplicity.  It is this-

Thomas:         A fantastic movie from the 90s.

Andrew:         [Laughs]  Michael Keaton!

It’s where you take a single criminal offense.

Thomas:         You clone it.

Andrew:         Yeah, right!  No, seriously!  And you make multiple counts of that single offense.  So you try and say what really should be, well let the jury decide, did Michael Keaton trespass onto the property at 6:38 pm? And then you try and plead that four different ways and you don’t plead it in the alternative. 

You’re trying to say when he did the one thing he was really guilty of four separate crimes.  You can’t do that.  We’ve talked about pleading in the alternative, you can take a single murder and say this was first degree murder, but if it wasn’t first degree murder it was definitely second degree murder, and if it wasn’t second degree murder it was definitely homicide, and if it wasn’t homicide it was definitely attempted murder.  You can attach all the lesser included offenses, but what you can’t do is, you can’t say “I want you to convict on both attempted murder and murder for Thomas murders John.”  We can convict you of either of those, but we can’t say we’re gonna take that one offense and make it into two crimes and stack the years.  You can’t do that.

Thomas:         I cannot imagine how this would apply.

Andrew:         Oh, that doesn’t apply.  [Laughs]  Now I want you to take the opposite of that.

Thomas:         Oh.

Andrew:         Suppose we could charge you with 11 different offenses, and instead of charging you with 11 separate counts, we bring them all under one count.  For the most part, that’s totally fine.  You’re sitting there intuitively being like, great, I’m getting off for these other 10!  But there is a technical way in which you can improperly collapse distinct and separate offenses into a single count, and that is the pleading defect of duplicity. 

Before we unpack it, because again, legal jargon.  The thing to remember is – this is almost never, the only case I could find, there are 1,455 federal cases involving duplicity, I haven’t read all 1,455, but I’ve read a lot of them, okay?  [Laughs]  I found one in several hundred of looking that actually struck down and reversed on an indictment for being duplicative, for containing multiple counts within a single indictment and I’m gonna talk about that case in a minute. 

Almost always, duplicity isn’t a basis for any kind of relief, either for a motion to dismiss or for post-conviction relief, because it’s not the kind of harm that we need to stop.  Taking somebody who’s guilty of 11 different things and only charging them once doesn’t intuitively seem to be the same kind of problem as taking somebody who’s guilty of one thing and charging them 11 times.

But there is a specific circumstance in which you throw together disparate facts and the problems are – I’m gonna quote from the 2nd Circuit here.  The problems with aggregating stuff in a single count are the following five policy issues, three of them are not relevant.  I’m gonna read those three first that are not relevant:

Number one, assuring the Defendant adequate notice of what he’s charged with.  Well, there’s zero argument here that Donald Trump doesn’t know what he’s charged with.

Thomas:         Well? [Laughs]  I’ll bet you he doesn’t know what he’s charged with.

Andrew:         [Laughs]  Yeah, well. 

Thomas:         [Laughs]  

Andrew:         But adequate notice is defined by a reasonable human being-

Thomas:         Yeah.

Andrew:         But good point, glad I got to say that. 

Number two, providing the basis for appropriate sentencing.  Again, not relevant here because there’s no difference on sentencing, there’s only Donald Trump can be convicted, removed from office, and disqualified from ever future holding an office of profit or trust under the United States.  So sentencing, not an issue. 

Number three, protecting against double-jeopardy in a subsequent prosecution.  If you’re confused about exactly what you’ve been convicted of, you’re confused about how far your right to double-jeopardy extends.  Impeachment doesn’t trigger the protections of double-jeopardy so that’s not an issue either.  So throw out all three of those justifications. 

The only potential justification that really applies are these two.  One, avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another.  Or two, avoiding the risk that jurors may not have been unanimous as to any one of the crimes charged.  Again, unanimity is not a requirement [Laughing] in an impeachment, but you could recast that argument, and they do, as understanding whether we really got to 2/3 on the basis of improperly combining.

Okay.  So now if we assume that there is a hypothetical basis that duplicity could apply here, the question is are the articles of impeachment duplicitous?  Do they improperly aggregate together facts in a way that makes them procedurally defective?  The answer here is absolutely 100% not.  I’m going to explain why. 

The way in which we handle duplicity under the federal rules of criminal procedure is Rule 7, specifically Rule 7(c).  That says a count may allege that the means by which the defendant committed the offense are unknown, or that the defendant committed it by one or more specified means.  What that means is you can allege a whole bunch of different facts if each one of those would constitute a violation of the same offense while standing alone or if each of them are part of a continuing course or conduct. 

That makes total sense.  When you say there is a conspiracy, this is how conspiracy charges get brought all the time.  You say the defendant committed conspiracy to commit burglary, including the following activities: chatted with Pauly the Snitch, bought a gun, gave money to Pauly’s – and you list all of the different aspects in which the defendant conspired with Pauly the Snitch and that is 100% not duplicative because each one of those, if the jury finds any of them, they can find yeah, okay, we have the one overt act that’s part of the conspiracy.  Did we find all of them?  No, we didn’t have to because each one standing alone is a separate violation of the same offense.

Thomas:         Pauly the Snitch is a tough criminal nickname-

Andrew:         [Laughs] Yeah, I know.

Thomas:         Oh come on!  Conspire with me!  Come onnn!  Pauly the Snitch, I’m really not gonna get burned by you again, no no, I swear!

Andrew:         [Laughs] Yeah, I coulda used Johnny Tightlips, but-

Thomas:         He’s got his wire on like the outside of his clothes.

Andrew:         [Laughs]

Thomas:         No, it’s totally fine!  I’m doin’ a podcast!

[Commercial –]

Andrew:         So literally the one case I can find where an indictment was thrown out – again, not all of them, but two indictments were thrown out on duplicity was a case called U.S. v. Kearney.  It’s from 1978, it’s a District Court case, and this was about stealing mail.  There is a federal crime, it is 18 U.S.C. § 1702 called Obstruction of Correspondence.

Thomas:         Yeah.

Andrew:         And obstruction of correspondence says whoever takes any letter and then it says from any letter or mail carrier or in the post office or in the custody of the mail carrier, before it has been delivered to the person to whom it was directed, to pry into the business or secrets of another, shall be fined or imprisoned under this title.  In other words, it’s against the law to do two things:  to have the intent to interfere with the business secrets of another person and steal their mail. 

Think about this, whenever we talk about business secrets I wanna think about, you know, Kentucky Fried Chicken’s 11 secret herbs and spices.  You go, you wait outside KFC’s headquarters and you steal the mail from their spice suppliers in order to take that back and decipher what those 11 secret herbs and spices are.  The crucial part is, to be guilty under this section you have to do more than just steal the mail. 

Thomas:         Yeah.

Andrew:         Like if I drive by, there’s another section but it’s a misdemeanor, of just stealing somebody’s mail.  We’re joyriding and I’m like oh hey look, I wonder what KFC gets in the mail, and I [Laughing] steal the stuff out of their mailbox, I can be charged with a federal crime, but that’s different than charging you with the crime of obstruction of correspondence.  I’m not doing it because I care about stealing KFC’s business, I’m doing it ‘cuz I’m an idiot.

So here the defendant was charged with that obstruction of correspondence and the counts say – these two counts are both very similar so I’m only gonna read the one.  The count says, “From in or about 1971 through June 1972, the defendant, with design to pry into the business and secrets of another, did induce his agents to take out of the mailbox, letters addressed to persons at 894 Riverside Drive, 900 Riverside Drive, and 674 W. 161st Street, belonging to Russell Neufeld, Phyllis Prentice, Steven Krugman, Laura Foner, Jane Spielman, Sally Stein, Judy Greenberg, Franklin Apfels, Joan Facher, and Mary Bolton.”

The Court said that won’t do.  That it violates the rule against duplicity.  Think about the reason why, because you need unitary intent.  What the Court reasoned, and again, I’m buffing it up a little here, but the Court said imagine that we had one jury – I guess before I do that, you need to pry into the business secrets of a single person, and trying to try into the business secrets of Russell is different from trying to pry into the business secrets of Phyllis. 

Thomas:         Hmm.

Andrew:         Because these counts have 10 different people living at 3 different addresses – I don’t really know how that works, whether they were apartment buildings or what, it’s not clear from the case – over a long period of time, you might have a situation where one juror is like okay, based on the evidence I definitely think he intended to steal Phyllis’ business secrets at 900 Riverside Drive, but nobody else.  Then you might have five other jurors who are like no, he definitely intended to obstruct Laura’s business at 894 Riverside Drive but nobody else. 

Thomas:         Gotcha.

Andrew:         Then six more who said no no, he was super interested in Russell’s business at W. 161st Street, but nobody else.  So then you would have a situation where the jury, there’s not a majority on the jury that has found a crucial element of the crime, but you’re aggregating together all these disparate facts and making it looks like they’ve really found the elements of the crime.  Does that make sense?

Thomas:         Yeah.  So just a question of how you charge the person, right?

Andrew:         Yeah, it is 100% how it’s written.  By the way, I am way overthinking this.  When you get to the answer, you’ll see that I’m way overthinking it.

Thomas:         You could have just said, well, this is sovereign citizen nonsense.

Andrew:         [Laughs] It’s not quite, because I want to make sure we’re engaging with the argument.  Because there is this tiniest veneer of plausibility.

Thomas:         Hmm.

Andrew:         But now let’s answer it on both ends.  First, the articles explicitly allege – [Laughing] Let’s quote from Article I which quotes, this is page 3 lines 3-4, repeated at lines 11-12.  It says the following activities were undertaken as part of (quote) “a scheme or course of conduct!” (End of quote).  Remember, one of the exceptions to the rule against duplicity is if you allege that all of the disparate facts were part of a single unified scheme or course of conduct then it’s not duplicitous. 

Article II is a little bit more nuanced – and this is why I did the full breakdown, because it doesn’t use the scheme language.  Now I can’t fault them for that because there was no way Adam Schiff would have known that Jay Sekulow was gonna try and pull up this 1978 defense, they didn’t know.  But it advances the same argument, and again under the same standards from Federal Rule of Criminal Procedure 7(c) “it joins two or more acts, each of which would constitute a violation of the same offense standing alone.” (End of quote).  Again, that comes directly from the case law explaining what does not count as duplicity.  That is explicitly permitted by Rule 7(c).

Article II, this is page 7 line 1, says that Trump abused his office by (1) Directing the White House to disobey lawful subpoenas; (2) Directing other Executive Branch agencies to defy lawful subpoenas; and (3) Directing current and former Executive Branch officials not to cooperate, including Mick Mulvaney, Robert Blair, Michael Duffey, that whole list. 

Instantly you can see the way this is not like any violation, this is not like the Kearney case, it is not like any violation I have been able to find of the rule against duplicity because even if the jurors aggregate, I think Trump unlawfully directed Mulvaney not to testify in order to obstruct the impeachment proceedings, you think Trump directed Duffey not to testify in order to obstruct the impeachment proceeding, it doesn’t matter because we both think Trump completed a full scheme, which is obstructing impeachment, and that’s all you need in order to find somebody guilty of 18 U.S.C. § 1505.

The last thing I wanna add here is even where there is duplicitous pleadings, where the indictment might aggregate together and be duplicative, Courts routinely find that that error is harmless.  Because again, the stars have to align in exactly the kind of way that we described in the Kearney case.  It has to be pled so badly that it’s plausible to think that you would aggregate together all of these different things that don’t amount to a single scheme and unfairly convict somebody.  There’s nothing in these Articles that amounts to that.

So that defense is coming and I just want you to be prepared.  That that defense is also nonsense, even though it’s gonna have ejusdem generis and it’s gonna sound kinda law-ey.  I liked your comparison to sovereign citizens, I like my comparison to cargo cult.  It’s designed to look like law and it isn’t.

Thomas:         Yeah, I can’t imagine Fox News hosts being able to even say-

Andrew:         [Laughs]

Thomas:         Could they even summarize that?  Yeah, okay.  Well that’s nonsense.  Alright well we’re way over time but I know there’s so much more to talk about, too.

Andrew:         There is so much more!

Lawsuit Update – OMB FOIA Request

Let me give you 30 seconds on a document filed yesterday in the New York Times ongoing lawsuit against the /o.  This is with respect to a FOIA request that they issued September 26th requesting that OMB turn over all email correspondence between Michael Duffey and Robert Blaire.  You just heard those names, they’re listed in the Articles of Impeachment. 

Blaire is the senior advisor to Mick Mulvaney and Duffey is the guy at OMB who sent the email that said “clear direction from POTUS to continue to hold the funds to Ukraine.”  So we think these are the two, this is the conduit.  Duffey to Blaire, Blaire to Duffey, these are the folks that relayed directly the President’s instructions to hold Ukraine aid until they announced an investigation into the Bidens. 

That is before Judge Amy Berman Jackson of the U.S. District Court of the District of Columbia.  The arguments are compellingly strong and they have just moved for an expedited Motion for Summary Judgment because OMB’s – literally the Office of Management and Budget was just like nope!  We’re not answering this FOIA request! [Laughs] Then later – they just didn’t say anything and then they went through the administrative process and then finally OMB was like well we pulled all the documents and they’re all privileged. 

Look, you’ve seen privileged documents.  You’ve seen over-redacted privileged documents, right?  They’re only – [Laughs] It says there are 20 responsive documents consisting of 40 pages that relate to Ukraine and they say all 20 documents are being withheld in full pursuant to FOIA exception 5, which includes any privilege, and they’re asserting executive privilege.  Again, this is just the Trump’s administration’s “the floor is lava.”  We just get to say things are executive privilege because we want them to be. 

This will not survive scrutiny and so I wanna remind you, we have this document out here.  Oral arguments were heard first week of January in the U.S. Court of Appeals for the D.C. Circuit, that was on compelling Don McGhan to testify and produce documents.  So in addition to the pending vote in the Senate which is gonna come next week, we also have the potential for relief coming from the courts. 

It all feeds into what I said at the outset, which is you’re a Republican, these documents are coming out.  There are too many avenues, there are too many open cases, there are too many open FOIA requests.  The house of cards is starting to collapse and if you want some optimism that’s the way to which I would appeal to a Republican sense of self interest.  It’s the dark shades on Optimist Prime, but there’s a little bit of optimism coming out here, so here you go.

Thomas:         Alright.  Well.  [Sighs] Yeah.  If not this impeachment, maybe the next one though.

Andrew:         [Laughs]

Thomas:         After this doesn’t happen.

Andrew:         Thanks Negatron.  I greatly appreciate that.

Thomas:         I’m just sayin’!  I’m trying to be like an optimistic Negatron.

Andrew:         [Laughs] Fair enough.

Thomas:         Next time!  Alright well I’m gonna go ahead and let you thank our new patrons since my voice is quickly leaving me. 

Andrew:         Yup, kind of thin on new patrons this week.  Again remember, we’re asking you, call your Senators.

[Patron Shout Outs]

Andrew:         Now you know what that means, it’s time for T3BE question 163, and kind of a timely crim-law question so here we go!

T3BE – Question

[Segment Intro]

Andrew:         Thomas, several defendants, senior executives of a corporation, were charged with securities fraud. 

Thomas:         Hmm.

Andrew:         The government called as a witness another executive of the corporation, who had not been charged and who had been given immunity from prosecution, to authenticate handwritten notes that she had made after meetings of the corporation’s management team-

Thomas:         Interesting.

Andrew:         – at which the alleged fraud was discussed.  The witness testified that she had prepared the notes on her own initiative to help her remember what had happened at the meetings.  After the testimony, the government offered the notes into evidence to establish what had happened at the meetings.

Thomas:         Hmmm.

Andrew:         So also an evidence/hearsay question in the context of a criminal prosecution.  Thomas, Should the witness’s notes be admitted?  A) No, because the notes are hearsay not within any exception.

Thomas:         Mm-hmm.

Andrew:         B) No, because the witnesses immunity agreement with the government makes her notes untrustworthy and thus substantially more prejudicial than probative.

Thomas:         Kay.

Andrew:         C) Yes, because they are business records; or D) Yes, because they are past recollections recorded.

Thomas:         Interesting.  Also note how hardcore Andrew is, no break.  No break this week on T3BE, doesn’t matter I’m sick, still gotta do it, still gotta answer Bar questions.  I guess that’s how it goes.

Andrew:         [Impersonation] Bar questions are good for soul!  Build strength!

Thomas:         It’s just hardcore.  The Bar is a hardcore thing. 

Okay, this seems like hearsay or evidence.  It seems weird – so we’ve talked about this before, there’s the whole you can refer to your own notes to refresh your memory I think when you’re testifying, but then I think we’ve had questions before that were like, it’s kind of different than entering those notes into evidence, but I dunno. Kinda seems like you would want her to testify from her notes rather than just doing the notes themselves?  I dunno, which is the best evidence?  ‘Cuz there’s also that best evidence thingy rule. 

Um, let’s see… witness testified that she had prepared the notes on her own initiative to help her remember what had happened at the meetings.  The notes are hearsay not within any exception.  Well that’s a standard answer, hearsay answer.  It’s always gonna be a contender.  But I feel like it’s usually not that, but anyway. [Laughs] Maybe we’re due for one.

I think B, no because the witnesses immunity agreement, that makes no sense to me.  I’m gonna dismiss that one.

C, yes because they are business records.  That’s tempting.  We have talked about the business records, there’s something there but I dunno if notes would qualify as that.

D yes because they are past recollections recorded.  Eh, that’s a tough one.  And by the way Thomas’ Second Chance Bar Exam, I think we can rename that now.  [Laughs] Do you know what it should be now?  We can call it the New York Times endorsement answer!

Andrew:         [Laughs] Nice! 

Thomas:         New York Times is gonna endorse either A or D.  [Laughs]

Andrew:         Okay.  I like it, I like it!

Thomas:         Yeah, I think A is definitely a contender.  No on B.  C is close but I don’t think they’re business records, especially with, it says that the witness had testified that she had prepared the notes on her own to help her remember what happened.  Doesn’t [Groans] doesn’t really sound like business records to me. 

D yes because they’re past recollections recorded.  [Sighs] I dunno.  I feel like she should just … testify, and she can use her notes to say what happened.  So you know?  I’m gonna go with A actually.  I really am not confident with this, but if I get this wrong I’ll blame the fever.  But I’m gonna go with A, New York Times endorsement is [Laughing] A and D, but I think I’m gonna go with A.

Andrew:         Alright!  And if you’d like to play along with Thomas, you know how to do that.

Thomas:         [Laughs] Yeah!

Andrew:         Just share out this episode on social media-

Thomas:         In other words, A is the Elizabeth Warren endorsement-

Andrew:         [Laughs] Yeah!

Thomas:         -and D is-

Andrew:         D is Amy Klobuchar.  Alright!

Thomas:         Amy Klobuchar! [Laughs]

Andrew:         So okay, alright, here’s what we’ll do.  You wanna play along, this week only, share out this episode, share it on social media, include the hashtag #T3BE and include as your answer either Team Warren [Laughs] meaning A, you’re accepting Thomas’ answer.

Thomas:         I dunno if we want to accidentally make anybody Tweet-

Andrew:         Ooooh, yeah fair enough.

Thomas:         Team Klobuchar.  [Laughs]

Andrew:         You know?  Okay, fair enough. 

Thomas:         Just say Team Warren and then give us the answer! [Laughs]

Andrew:         [Laughs] That’s exactly right!  Say Team Warren and then pick either A, D, or one of Thomas’ non-answers, B or C. 

Thomas:         Buttigieg and Sanders. 

Andrew:         Yeah, I’m not even gonna say which one of those is the Buttigieg and which one is the Sanders.  Joe Biden would be none of the above [Laughing] if you wanna guess that one.

Thomas:         [Laughs]

Andrew:         No, so share out the episode, include your answer, include your reasons therefore.  We will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.  Also if you’re interested in never ending fame and fortune if you have called your Senators and you Tweet that out to us on the OA account, that is @openargs on Twitter, I have been retweeting like crazy folks who have done that.

Thomas:         Yeah.  I feel like we’re gonna run out of never ending fame and fortune.

Andrew:         Yeah.

Thomas:         I guess we can’t, really!  It’s never ending.

Andrew:         That’s the great thing about fame and fortune, you can’t run out of it.  You know, unless you’re like – no, look, Liv Tyler is back in a series now.  Come on!  It never goes away!

Thomas:         [Laughs] What? 

Andrew:         There you go.

Thomas:         The one with Rob Lowe?

Andrew:         Yeah!  Rob Lowe and Liv Tyler.  They’re proof you can never run out of fame and fortune!  [Laughs]

Thomas:         [Laughs] Well that’s our show!

Andrew:         Well, feel better, Thomas.

Thomas:         Thank you.  Yeah, everybody else … feel better?  I dunno, everybody’s probably sick.  Alright, thanks for listening.  [Sighs] Yeah, I’m gonna keep watching impeachment stuff while having a fever and we’ll see you on Monday’s show.

Andrew:         See you then.

[Show Outro]

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.