Listen to the episode and read the show notes
Topics of Discussion:
- Can the White House Suppress Bolton’s Book?
- Real Answers to Senate’s Impeachment Questions
- Thomas’ Take on Joe Manchin
- What Changed Meaning of High Crimes and Misdemeanors?
- How Would the Framers View Removing the President when Parties Disagree?
- How Do These Articles of Impeachment Differ from Previous Ones Against Judges?
- Does the President Agree that Foreign Interference in an Election is a Crime?
- Did Adam Schiff Create Issues of Due Process that Preclude a Fair Trial?
- Will There Be Consequences?
- Does Claiming Executive Privilege Require the Identification of Specific Documents Seeking Protection?
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments, this is episode 355, I’m Thomas Smith, that’s Andrew Torrez! How’re you doing, Andrew?
Andrew: I’m fantastic Thomas, how are you?
Thomas: Ooooh, doing well doing well.
Thomas: It feels like – in fact, you know what? I take that back. I’m doing very well because I’m pretty sure we singlehandedly made a difference for the witnesses. I say we and by that I mean the royal we of the whole audience and the whole show, because it really feels like the noodle got moved a little bit.
Andrew: It does. I would say, look, Mitch McConnell is still trying to move the noodle back.
Andrew: Do not let up. If you have not yet called your Senators, call your Democratic Senators and praise them, call Mitt Romney and praise him, call Republican Senators who have not spoken out and the script, we’ll continue to use the script and have it in the show notes. This is super easy, hundreds of you have Tweeted in, emailed us, maybe even a thousand. A lot of you have done this, this is really, really great. It’s really important. Keep doing that. The other side is doing the same thing so it is important to keep that up. The vote, if it happens, will happen sometime late on Friday so as you’re hearing this you still have time to call your Senators? and make sure they line up for witnesses.
Thomas: So cool. It’s been awesome to see people Tweeting us that they’ve done this, great job everybody.
Thomas: We love you, keep up the good work, and it really feels like the noodle-
Andrew: It does and look, there have been two recent polls, one was a Quinnipiac poll that shows 75% of the country wants witnesses, including large majorities in each party. Yesterday a Navigator poll came out, and again, Navigator not the same level of pollster as Quinnipiac but it’s not like 3 guys in a basement just makin’ stuff up. 82% want witnesses, including 70% of Republicans. This is not a hard argument to make.
Mitch McConnell has been on the other side of worse issues, but this is something where it feels like we’re making a difference and you definitely play a part, keep doing that. Good job, guys!
Thomas: Alright. Well I know you have a couple more pre-show announcements before we get into all the impeachment glory.
Andrew: [Laughs] Yeah, two things. First, I am really, really excited about this. We are gonna have Marcy Wheeler on next week, she is gonna talk to us about developments in the Michael Flynn sentencing case where she kind of has the opening arguments style position.
Thomas: Oooh, like she’s the Optimist Prime and you’re the Negatron?
Andrew: Exactly right.
Thomas: Ahh, that’ll be fun! Come to the dark side!
Andrew: Yeah! [Laughs] She has a really, really interesting position involving kind of reading between the lines on the government’s latest filing. My take, just as a sneak preview for all of you, is super Negatron on that one. I think that-
Thomas: Yesss. [Laughs]
Andrew: -It is a reasonable influence that something happened and it’s a reasonable inference that that thing that happened is Bill Barr called up a U.S. attorney and leaned on her. I would love to give voice to someone more optimistic than me, I love Marcy Wheeler’s stuff and so I’m really, really looking forward to having her on the show.
Thomas: Feel the negativity course through you, Andrew Torrez.
Andrew: [Laughs] We’re restoring balance to the podcast.
Thomas: At last, at last! I can’t wait. I think it’s because you were burned so badly from Barr, you know. You’re not gonna make that mistake again.
Andrew: [Sighs] Yeah, yeah. I will not underestimate Bill Barr again. I have written that, Bart Simpson-like, on the chalkboard 8,000 times.
Andrew: I will not underestimate Bill Barr.
Can the White House Suppress Bolton’s Book?
Thomas: And then finally once again before we get into the impeachment fun and all the questions we’re gonna hear Andrew answer, like give real answers to the Senate questions, can’t wait, there’s a question about Bolton’s book. Can the White House suppress it? Remind us what’s going on there, this whole thing is such a mess.
Thomas: Does it just make you a little upset, Andrew? The fact that this guy Bolton is, you know, the worst. He’s not a liberal hero, nobody thinks he is except the Fox News people trying to make that happen. Lou Dobbs or whatever. But also that he’s writing a book, he’s trying to profit off this whole thing, it just feels so icky to me. Anyway, what’s going on with the book?
Andrew: It should. I really liked watching Adam Schiff’s expression last night during the cross-examination period in which he said, you know, “John Bolton, not a guy I like a whole lot.”
Andrew: And then pause as he’s like “I like him a little bit more now.” It was just, it felt like a real and sort of humane moment in this, what has been largely farcical impeachment proceeding so far.
Thomas: I know. Did you catch the – I’m pretty sure it was Lou Dobbs, tried to do like the old, you know, whiteboard with a yarn to say oh! He has the same literary agent as, who was it? Comey! Then someone pointed out also Lou Dobbs has that literary agent?
Andrew: [Laughs] The … [Sighs] I would say it would be impossible for the Fox News propaganda machine to discredit John Bolton, the guy who wants to have the United States withdraw from the United Nations and was therefore appointed the U.S. representative to the United Nations under George W. Bush. This is-
Thomas: You’re telling me he and AOC aren’t best friends? [Laughs]
Andrew: Yeah. [Laughs] I’m saying in 2004 this was the howleriest of howler monkeys.
Thomas: Yeah, still is!
Thomas: Just somehow, yeah.
Andrew: Yeah. But, you know, he’s apparently gonna be labeled a communist on Fox News now.
Thomas: By the way, I love how there’s that Fox News – Lou Dobbs is on Fox News Business or whatever? [Laughs] When you want your crazy but for business reasons, I guess? To help you with your business tips or something? I love it.
Thomas: Anyway, okay. Go on.
Andrew: [Laughing] No, it’s totally fine! So the White House sent a threatening letter to Simon & Schuster, the publishers of Bolton’s book, saying that they were going to have the book enjoined from publication because it contains national security, privileged, top secret stuff. A lot of people have asked, is that a thing the White House can do?
The answer is no, it is not remotely a thing that the White House can do. I wanna explain the law around that. The law here is as strong a principle of first amendment law as you can find in our nation’s history.
Thomas: Would you say it’s Clear as Kushner?
Andrew: [Laughs] Yeah! It’s clearer than Kushner!
Thomas: Clearer than Kushner.
Andrew: It’s as clear as Kushner wearing a transparent Ziploc bag!
Andrew: This principle is called “prior restraint.” It is the idea that instead of dealing with the consequences of a thing you are trying anticipatorily to shut someone up. The background is, think about our legal system. Our legal system works the other way. In broad outline, you know, yes, sometimes you get injunctions but by and large what you get is okay, do your thing and if the thing hurts somebody, if it’s libelous, whatever, then they get to sue you and then we get to make everything all better if it turns out you’ve done a bad thing but we’re not gonna err on the side of silencing a particular voice or viewpoint.
There is – okay, in the interest of steel-manning the argument, there is an exception on prior restraint. So all of our cases are basically like yeah, you do not get an injunction stopping somebody from talking, that’s prior restraint, the first amendment prohibits that.
There is an exception in the interests of national security, that comes from a 1930s case called Near v. Minnesota. Again, when you think about national security in the 1930s, you know, it is a lot different than I think how the court views national security today. But even so, that standard was clarified in the Pentagon Papers case, New York Times v. U.S., 403 U.S. 713 (1971). We’ve talked about this before. The New York Times wanted to publish the Pentagon Papers which were classified documents about our intelligence from 1960 through to 1969, so it implicated the Kennedy, Johnson, and Opening Arguments good friend Richard Nixon, it implicated all three presidential administrations.
It clearly had zero ongoing national security value. It talked about troop movements from 1962 and this was 1971, it had absolutely no strategic value. But it made the U.S. look super-duper bad and rightfully so. We deserve to know that a beloved, assassinated President in JFK, a much despised President in Lyndon Johnson, and whatever you would describe as Richard Nixon, the decision-making process that they used to go to war in Vietnam was fatally flawed, was a result of group-think. This is what the 1st Amendment is about, it’s about shedding light on the way in which our officials make the most crucial decisions that they can make.
So the Nixon administration tried to block the New York Times from publishing the Pentagon Papers. As the Supreme Court was ruling on this case – we’ve talked about this before, Mike Gravel read the entire Pentagon Papers into the record from the Senate floor. One of the multiple acts of real courage in Mike Gravel’s career before, [Laughing] I think he became a flat-earther late in life? Or a moon denier, I dunno something.
Thomas: Well he’s still running for President isn’t he?
Andrew: Yeah, he was running for President up until very recently. [Laughs]
Andrew: But no-
Thomas: I’d vote for him over Tulsi. Sorry, go ahead.
Andrew: Yeah, no kidding.
Andrew: Remember, Tulsi, if you’re gonna sue us, that’s Opening Arguments Media, LLC, a Maryland Limited Liability Company.
Okay, so genuine heroism by Mike Gravel, and the Supreme Court issued one of these fractured opinions that was 6-3 in the main but had no one opinion that garnered a 5 or more vote majority, but basically went through and said oh no. The New York Times can absolutely 100% publish the Pentagon Papers. Those opinions were split out, there were two votes for no, the 1st Amendment means you can never engage in prior restraint.
There was one vote, William Brennan, for you can only engage in prior restraint if, what the Near v. Minnesota exception means is you can only engage in prior restraint, you can only stop something from being published if it’s troop movements while we’re at war.
Thomas: Hmm. That’s fair.
Andrew: Kinda hard to disagree with that one. There were two votes for you might be able to get prior restraint in some other case but there’s definitely not harm in this one, and then an overlapping from that there were three total votes for look, there wasn’t even a law here. [Laughs] There was no inherent legislative power for the executive to be able to go and block a newspaper from printing stuff, Congress didn’t authorize that, you’d have to have a law and there wasn’t a law.
The dissent was basically we don’t think you’ve done enough fact finding as to the harm here so we’re unwilling to rule either way so we’re not going along with the Court’s judgment. But there was absolutely no vote among the 9 Justices for an expansive reading of the national security exception to the prior restraint doctrine.
Look, Simon & Schuster is a huge publishing house. They are a multi-billion dollar company, they publish stuff like this all the time from people that have access to classified information. They have a team of in house lawyers to vet out, Simon & Schuster is gonna tear up that letter from Pat Cipollone and compost it.
Andrew: There is zero chance that the White House is going to be able to bully Simon & Schuster into not publishing Bolton’s book. Now, look, if it reveals stuff, if it reveals confidential information, if it reveals executive privilege, could Donald Trump sue John Bolton in his personal capacity and maybe win some money? Sure! And as I’ve said on Twitter, boy the amount of effs that I give as to who profits from John Bolton’s book-
Andrew: -is between Donald Trump and John Bolton! That is a multiple of zero. I could not care less.
Thomas: Thank you, that one always bothers me. [Laughs]
Andrew: I know, it bothers me too, that’s why it slipped out and I needed to immediately rescind it but-
Thomas: Because it’s like I could care less, but I don’t even care enough to care less!
Thomas: That would take effort. You know, I know there’s a process. I’ve read a lot of books by people in administrations past, the Obama crew and like that. I know there’s a process where they go through and, I dunno if it’s the State Department or something, and they kinda work with them and tell them what you can and can’t publish in a book. Is that all courtesy? Or is that a legal process? How does that relate to this?
Andrew: So what you are doing there is establishing your defense to the various standards for defamation, for negligence, for whatever they could sue you for. When you go through that process you can then go to the Court and say look, we followed ordinary journalistic practice so therefore there was no breach of the standard of care in this particular case.
Again remember, even when it’s not a negligence action you can think about private torts as, typically, other than in breach of contract cases which we’ve said the theory of efficient breach. There’s zero moral approbation in breach of contract cases. In most tort cases it generally follows the form of did you fail to abide by the proper standard of care in this particular circumstance? So yeah, that’s why they do that, to build the record to say yeah, we did everything that a reasonable journalist or reasonable publishing house was expected to do in circumstances like this.
Thomas: Hmm, I’m not entirely sure that’s exactly what – because it’s with people who, you know, had confidential information from working-
Thomas: Okay. So who’s gonna sue? It’s gonna be like a personal lawsuit if they reveal state secrets?
Andrew: So there are two potential lawsuits here. The first is a lawsuit by the U.S. government to block the release of secrets. That’s the prior restraint that has zero chance of succeeding. After Bolton’s book is published then you can have either injury to the U.S. government, which is particularly rare but the U.S. government – typically, think about it in like court of claims cases. If the government hires you pursuant to a government contract to, I dunno, let’s say replace out all the stop lights in a particular town, and let’s say you replace that with substandard lightbulbs then the government can sue you in its governmental capacity and say you defrauded the U.S. government and therefore, by extension, the American people out of the value under this contract.
Similarly, the U.S. government could say you have committed a professional tort against the U.S. government.
Thomas: Huh. Alright-
Andrew: Alternatively individuals can be harmed individually. If you revealed-
Thomas: Oh, right.
Andrew: -executive privilege, legitimate executive privilege against the will of the President then that’s injured him in a personal capacity as well, so there’s zero chance, I think, that Trump would want to do that because he would expose himself to discovery by voluntarily being a plaintiff, but who knows? Trump is pretty litigious and has some pretty dumb lawyers around him, so there you go.
Thomas: [Laughs] Alright.
Real Answers to Senate’s Impeachment Questions
Thomas: Okay Andrew, here it is! This might have almost been a listener submission for an episode idea, right?
Andrew: Yeah it was.
Thomas: Oh, cool!
Andrew: And I thought it was fantastic so that’s why we’re going it.
Thomas: Nice! We’re going to get some real answers to the Republican – well to any, lots of different questions asked.
Andrew: As an overview I have to say I’m really disappointed in both sides on the Senate so far, which is they are mostly asking the kinds of setup questions. So Democrats are asking questions of the house managers and Republicans are asking questions of Trump’s defense team. Look, I get it that you can’t ask a gotcha question when it’s a single question being floated up there and they ping-pong back and forth, but ask actual, legitimate fact questions and ask them of both sides. Say we want both sides to weigh in on this.
Thomas: Yeah. Well Roberts has to read it, right?
Andrew: Yeah, yeah.
Thomas: So they’re probably like ah, he’s not gonna do it right. [Laughs]
Thomas: He’s not gonna give the big, “Oh! Isn’t it true?!” you know?
Andrew: [Laughs] We have emphasized this in the three and a half years this show’s been running. Lawyers understand when you get one question, all you can do is lay a foundation. There’s no such thing as the Perry Mason “one last question! Confess, confess!”
Andrew: Yeah, anyway. Go ahead, let’s tackle these questions. Honest answers to real questions.
Thomas’ Take on Joe Manchin
Thomas: Alright well first up is Joe Manchin. I was gonna mention, don’t worry this is an Andrew-approved rant here. Everybody complains about Joe Manchin, as well they should I suppose, ‘cuz there’s a lot to complain about. But I was looking at the Trump tracker the other day on 538, and so it’s all of Congress and their Trump score, so how often they vote in line with Trump’s position, their Trump margin of whether their District of their State (whether they’re a Senator or a House member) and then the prediction based on that of how often they would be supporting Trump. From that 538 does a Trump +/-, so it’s the difference between their actual and predicted Trump scores.
So, you know, I think that’s pretty easy to understand but just in case not, if you’re in a district that’s 100% Trump and you vote with Trump 80% of the time then actually there’s a 20% difference there and that’s actually good. You’re voting with Trump 20% less than you should based on the prediction. If you sort that by who has the best and worst Trump +/-, Joe Manchin has the fourth best.
Thomas: In all of the Senate. In the entire Senate he has the fourth best, so that means we are getting good value out of that seat. He’s in West Virginia and that’s a Trump +42.
Andrew: [Laughs] Wow.
Thomas: +42! So the predicted amount of time that he should be voting with Trump is 91.4%. I think they have some other stuff going on in that algorithm, I can’t speak to that.
Andrew: Yeah, yeah.
Thomas: But it’s not just a straight line number, I think they factor in some other things. He votes with Trump 53.9% of the time. You know who’s the worst of all the Democrats? Kyrsten Sinema. She’s way down.
Thomas: She’s actually in the top, like 20 of everybody, including Republicans. She’s got a +14.5, so I dunno, I hear a lot of people complain about Joe Manchin, I get it, but if he loses you just have a Trump loyalist 100% voting with Trump there all the time.
Thomas: So there’s something to be said for, forget a purple State, a red State. A red State Democrat.
Andrew: A +42, I mean that is-
Thomas: +42! [Laughs] A Mordor Democrat.
Andrew: It’s redder than Alabama.
Thomas: Yeah, so I dunno, just keep that in mind. But anyway, okay. I’m sure I pissed a lot of people off, but yeah.
Andrew: I love it! That’s the point of this show.
Thomas: Yeah, but it’s a fact-based take. Joe Manchin is the 4th best in terms of giving us value from a State.
Thomas: Alright. He asks, through John Roberts through me [Laughs]
What Changed Framers Meaning of High Crimes and Misdemeanors?
Thomas: Multiple telephones here! Even Mr. Dershowitz said in 1998 that an impeachable offense (quote) “certainly doesn’t have to be a crime” (end quote). What happened in the past 22 years to change the original intent of the framers-
Thomas: -and the historic meaning of the term “high crimes and misdemeanors?” Wow.
Andrew: [Laughs] Oh, this is such a well-phrased question. Joe Manchin, by the way, has come out, there was some storytelling trying to suggest that he might vote against witnesses and he’s come out in favor of witnesses. Here’s – the way Dershowitz answered this question was kind of amazing.
So first he doubled down, we talked about this, I honestly didn’t expect him to repeat this outside of the friendly confines of the Laura Ingraham show.
Andrew: We made fun of this a week ago today, but he doubled down on the “it’s my first day” defense, where he was like look, I was just a young law professor of 67 and-
Thomas: [Laughs] So during the Clinton impeachment you’re saying?
Andrew: Yeah, during the Clinton impeachment, and how could I possibly have been expected? I teach at this back-water cow college-
Thomas: [Laughing] Yeah!
Andrew: -that no one’s ever heard of, so I was relying on people like Larry Tribe to tell me, and he was the one! He’s the bad guy, he said that you didn’t need a crime and so I didn’t really say that. Then [Laughing] point number two he said also I am literally the only honest constitutional scholar left in America-
Thomas: Yeah, sounds right.
Andrew: Because I’ve changed my mind and there’s certainly no other lawyers who are willing to change their mind when they receive a large cash payment from a client!
Thomas: [Laughs] Yeah! I’m the only one who, when I have connection to Jeffrey Epstein and got a massage from a child and all that, am willing to change my mind in order to defend the Rapist in Chief. I’m the only one with that level of integrity. Is that what he’s saying?
Andrew: Yup. Yeah, and then-
Thomas: Just making sure.
Andrew: Word for word I want to repeat this one. (Quote) “If a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
Thomas: I gotta do this. I’m going to play devil’s advocate’s advocate here, because he really is the devil’s advocate.
Andrew: Yeah, yeah, he wrote a book called “The Advocate’s Devil.”
Thomas: Initially I had the same reaction that I think a lot of people online had, which is wait a minute, that sounds like he’s saying if the President thinks he’s doing something that benefits his reelection and he thinks that his election is in the public interest he can do anything he wants! And in slight defense of Dershowitz, I don’t think he’s exactly saying that. So I could joke, yeah, if Trump just breaks a guy’s arm or shoots a guy and thinks well this helps me get reelected then voila, he’s fine.
But he did say as regards of quid pro quo. So it’s not as though he said he can do any kind of crime. I think he’s specifically talking about when it’s not a crime and you’re looking at the President’s motive, part of his motive, if it’s to get reelected then that’s not necessarily a criminal mindset in the quid pro quo. Do I have that right?
Andrew: I think that is what Dershowitz’s defenders are saying. But I think you’re steel manning Alan Dershowitz too much.
Andrew: Here’s what he has said on his own Twitter feed today in terms of his defense of what he thinks that phrase said. He basically said, and I’m gonna read some of this word for word, but essentially what he did was divided motives up into three particular categories.
He said it’s easy to think of these at the margins, so let’s read this. This is from a Tweet from three hours ago at the time that we record. Alan Dershowitz, (quote) “what I said was that there are three broad categories of relevant motive. One, pure national interest, help the military.” And again, pure national interest, obviously not impeachable. “Two, pure corrupt motive, get a kickback, not impeachable. And three, mixed motive, help the national interest in a way that also helps your reelection efforts. I said the third was often the reality of politics and that helping one’s own reelection efforts cannot, by itself, necessarily be deemed corrupt.”
That’s his exact words and again I just wanna point out, if that’s the trichotomy, purely innocent motives, purely evil motives, mixed motives, and you say mixed motives are not impeachable then what you’re saying is you literally can only impeach on the mustache-twirling purely evil motives.
Andrew: That is a standard that is impossible to meet because-
Andrew: Go ahead, go ahead. Push back, let’s do this.
Thomas: I almost think that trichotomy might be valid, it’s just the things he’s putting in the middle are not. For me, investigating your political rival is just clearly in the mustache-twirling category.
Andrew: [Laughing] Yeah, well…
Thomas: You know? It’s not so much the trichotomy, which I love, it’s just a fun word to use. I’m not the constitutional law professor here, but that doesn’t strike me as, on its face ridiculous, it’s just to put this in the category of “it’s kind of a mixed motive.” No. It’s 100% self-serving motive.
Andrew: That’s where ultimately you put this together. Because if you’re contention is that this is a mixed motive case then I think we go back to the hot take is the fair take. Then by definition everything the President thinks is in the public interest is now in the public interest, I guess checked by – I would love to ask!
By the way, Alan Dershowitz has said and we have re-Tweeted and replied out from the Opening Arguments account, that he (quote) “I challenge my critics, especially those who are deliberately misinterpreting my arguments, to a Lincoln-Douglas type town hall debate in which name calling is prohibited and intellectual arguments bust responded to with other intellectual arguments. Respond if you accept.” So I [Laughing] immediately responded “challenge accepted.” No one tell Alan Dershowitz that I coach Lincoln-Douglas debate. I highly doubt he will agree, but you know, who knows.
I would love to be able to ask Alan Dershowitz, what is the standard for how we determine and who gets to determine what is elected (comma), in the public interest? Is it an objective standard or a subjective standard? Because he seems to suggest in his defense that it is an objective standard. He says if you’re getting a kickback that would be mustache-twirling, but then says this doesn’t rise to the level of purely evil motives based on the fact that the President seemed to believe that it was going to help him get reelected. There is absolutely – I don’t know where you can draw the line.
I don’t know under the Dershowitz standard, other than you can count what money is and you can’t count what votes are, but that would be A) a not-historical standard, and B) would be entirely unmoored from the realities of modern life. We’re gonna talk about this in response to another question, but we live in an age in which there’s a reason why virtually all of the wealthiest people in the world right now traffic in information. Mark Zuckerberg will tell you information has real cash value.
If you’re saying that Trump could be impeached for asking President Zelensky to send over a $10,000 check, but not for asking President Zelensky to announce sham investigations into your political rival? That’s a nonsense position! That position, yeah, that makes great sense if it were 1784 but Zelensky announcing public investigations into the Democratic nominee for President – the person they believed would be the Democrat nominee for President, may still well be, is worth so much more than $10,000!
Thomas: Well I agree. I wanna make very clear that the only clarification I was trying to make is I don’t think Dershowitz is saying if Trump shoots somebody, as long as he thinks it’s for his reelection benefit then it’s fine. If it’s within the context-
Andrew: Yeah, but I don’t think he’s given us a standard for which we can make that decisions. Right?
Thomas: Well but he’s just saying within the context of the quid pro quo. So because the quid pro quo isn’t … um, I forget the legal term, but isn’t just an obvious crime? The argument is quid pro quo is a thing that does happen in foreign policy, and that’s true. Biden himself did the “you’d better clean up your act over there, or fire that prosecutor” or whatever, we’ve talked about that, “otherwise we’re withholding this aid.” It’s the same thing, the difference is that’s an actual purpose that is in the U.S. interest-
Thomas: -versus in Trump’s personal interest.
Andrew: And now I get that, I think what this comes back to is the big lie that Trump’s defense team keeps repeating over and over again that I wish – we saw Hakeem Jeffries do this, we saw Adam Schiff do it a little bit, but I wish Democrats were more clear about this.
Article I includes the crime of bribery as set forth at 18 U.S.C. § 201(b)(2).
Andrew: So what Alan Dershowitz is trying to do here without tripping up over his own tongue is respond to the fact that the elements of bribery are corruptly intending a quid pro quo, while at the same time saying that Article I doesn’t allege a crime. Well obviously it patently alleges a crime on its face. The reason, as we’ve talked about on the show, that it goes beyond that is because if Article I just alleged the present crime of bribery then Alan Dershowitz would be up there saying “no no no, you have to do what the founders thought bribery meant in 1789.” This is a heads I win, tails you lose argument, so he has to smuggle in those premises. He’s got to say okay, that’s not the kind of quid pro quo that would be impeachable.
Thomas: Right, right right.
Andrew: Well how does a quid pro quo get to be impeachable? Because it’s part of bribery.
Thomas: Okay, I see what you’re saying.
Thomas: So the trick in there is the part where he’s assuming there’s no crime and that we’re not talking about the crime of bribery anywhere. Okay.
Andrew: I wanna touch very briefly on a couple of other things. The one I wanna postpone for a little bit, I think we’re gonna bring you a bonus show?
Andrew: If you wanna get ahead of the curve, law professor Clark Cunningham has written as super interesting article for Politico arguing about the original meaning of the phrase “high crimes and misdemeanors.” I have reached out to Professor Cunningham, we had a fun conversation back and forth, I think he’s gonna be able to come on the show and I can’t wait to do that and bring that to you. So put a pin in that one, we will get to it.
I also want to talk [Laughing] just a little bit about the history of bribery. The reason why bribery and treason and other high crimes are listed in that first part. Professor Cunningham’s research talks about the meaning of the word “misdemeanor,” it’s super interesting. We have talked about on this show both Zephyr Teachout’s 2009 seminal law review article, The Anti-Corruption Principle, that’s the article to which Seth Barrett was initially responding in his view of the emoluments clause. We’ve also talked about the Eisen, Painter, and Tribe article on the emoluments clause written in 2017 specifically about Donald Trump.
In both of these legal scholars transport you back in time to what this country was like in 1789 and what the founders really were afraid of. Here’s what they were afraid of: The United States was a tiny, little, backwater – what Trump would today call a shithole country back in 1789. You can see this in the writings of the founders that they were worried that, I dunno, France would send a delegation to our President and be like “hey, how’d you like to be a viscount somewhere? An archduke or something? We’ll give you this big chateau in Bordeaux, you can come live in civilization and all you have to do is just do whatever we tell you to do about this nonsense country called America that elected you king.”
That’s a palpable and real fear, so you can see this in the debates over the emoluments clause, over how to impeach a President. The idea that our Presidents would be super-duper vulnerable to foreign interference because we were the backwater back then. The idea that exactly what we see happening here was not contemplated by the founding fathers as being an impeachable offense is just a gas-lighting of history. I sit in stunned silence and watch people making this argument.
Thomas: Well said. While you’re in stunned silence I will read the next question, ‘cuz we gotta get to another question.
Andrew: Yup, yeah we do.
How Would the Framers View Removing the President when Parties Disagree?
Thomas: So this is listener – another Senator-
Thomas: Again through Roberts’ mouth. How would the framers view removing the President without an overwhelming consensus of the American people and on the basis of Articles of Impeachment supported [Laughing] by one political party and opposed by the other?
Well A, they would be like party? Why are there party- what, huh? There aren’t parties, what do you mean, there aren’t parties yet really. Then B, they would say well we put the impeachment process in there so as long as they had the votes that we said in the impeachment process then yeah, that’s going to overturn the will of the American people by definition, otherwise we wouldn’t have put it in there! If we would’ve thought there’s no circumstance in which you can “override the will of the people” in an election by impeachment then there wouldn’t be impeachment! We wouldn’t have written it down! Is what they would’ve said. Anyway, that’s my answer, what’s your answer? [Laughs]
Andrew: That’s a good argument. It’s even worse than that. [Laughs] I’m going to cite from Federalist Papers No. 10, it was written by Madison. So you are correct, at the time there were no political parties and everybody who remembers George Washington’s farewell address urging the country not to split up into political parties, which was about as bad a prediction as my “Bill Barr will be impeached in the next couple of weeks.”
Madison in Federalist 10 is very lightly paraphrasing John Locke, the inspiration for this country. What is the closest analogy to political parties that was talked about during the ratification of the constitution in the Federalist Papers is what they called “factionalism.” Splitting up into factions.
Andrew: To address (quote) “the violence of faction” Madison said we need to figure out, number one, can we stop the cause of factionalism? He concludes no, you can’t. People are gonna band together, particularly in a democracy, and there’s nothing you can do about it that doesn’t involve becoming tyrannical.
Then he says okay, so if we can’t get rid of the causes of factionalism can we control the effects? Here Madison says yeah, we’ll do two things in order to control the bad effects of factionalism. Again remember, when he says factionalism he means exactly the predicate of this question. Political parties placing their own interests over the welfare of the nation. Just to make sure everyone knows, I’m quoting from Madison here in Federalist 10.
(Quote) “Complaints are everywhere heard that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, that measures are too often decided, not according to the rules of justice and the rights of the minor party, but the superior force of an interested and overbearing majority.” So that’s the harm of okay, you just have Democrats here.
Here’s what Madison says are the two structural features of our government that is designed to prevent the ills of factionalism. First is the principle of impartiality. [Chuckles] The idea that no person can be a judge in their own case. Madison’s words again, Federalist No. 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and corrupt his integrity. With greater reason, a body of men are unfit to be both judges and parties at the same time” (end of quote).
So applicability here, the President absolutely does not get to decide the extent of executive privilege or order witnesses to defy subpoenas. The primary thing that Madison says you need to do to get rid of the danger of partisanship is to not let people rule in their own case and that’s exactly what President Trump’s lawyers are arguing for.
Second is the principle of republicanism, the idea that rather than relying on direct popular support we want independent, principled intermediaries. Again, gonna quote from Madison: “To refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant with the public good than if pronounced by the people themselves, convened for the purpose.”
Again, here’s how we translate that. That means that when you hear Republicans going “well we got an election coming up, if people wanna get rid of Trump let them vote Trump out.” That is 100% the opposite of what the Founding Fathers wanted. They said no, we don’t leave it up to the voters to decide whether to kick out a demagogue who might be popular, we leave it up to the elected representatives as intermediaries in order to prevent this kind of partisanship.
The entire premise of the question is contradicted by the Federalist Papers.
Oh, and by the way? As a historical basis every impeachment we’ve ever had of a President – there have only been two – has followed this pattern. We know in Clinton – but Andrew Johnson was a Democrat and in 1868 when Andrew Johnson was impeached there were only 9 Democrats in the Senate. There were fewer States back then, too, but this was post-Civil War. There were 45 Republicans. The Democrats voted 9-0 to acquit Johnson on all three charges. So the idea that you did not have stark partisan divides in the last two impeachments, the only two Presidential impeachments in history, just not reflective of reality.
So this is a terrible argument, this is a bad question, and you should feel bad for asking it.
Thomas: Well that was a good try Andrew, but I’m pretty sure the correct answer that the lawyers for Trump said was “oh yeah, if you open up those graves right now they got blood coming out of their eyeballs. They’re crying. Crying for – this would’ve made the framers so mad.” I’m pretty sure that was the right answer, so I think you got it wrong, sorry. Oh no, or they got it wrong. Never mind, it might be they got it wrong.
How Do These Articles of Impeachment Differ from Previous Ones Against Judges?
Alright, next question: Eight judges have been removed from office but never a President. How do the current Articles of Impeachment differ from the previous articles regarding judges?
Andrew: Okay. So what Alan Dershowitz said [Laughs] was this argument about the Founders took out impeachment for maladministration and that is essentially for failure to perform your duties, so therefore impeachment is super-duper narrow. He also implied, as part of the accountability to the American public, that there’s a difference between impeaching a judge because obviously judges are not accountable to the public, and impeaching the President.
Thomas: Sounds plausible. Is that not true?
Andrew: It certainly sounds plausible. The honest answer is that is found nowhere in the law or in the Federalist Papers or in any plausible reading of the debates over the history of the impeachment clause.
So let’s unpack this. The legal standard, if you wanted to make the strongest pro-Dershowitz argument it would be this. Article 3, which is the section of the Constitution on the judiciary, Section 1 says that Judges shall hold their offices during good behavior. That’s a different standard than what Article 2, Section 4 says which says “The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors.”
So you would say, well, bad behavior is different – not good behavior.
Andrew: Let’s use their language. Not good behavior seems different than treason, bribery, or other high crimes and misdemeanors. But when you break it down there is no section in Article 3 that describes how to impeach a judge, so we have impeached 15 federal judges in our nation’s history and for all of them we have impeached them under the standard set forth in Article 2, Section 4. By court’s deciding that judges are (quote) “civil officers of the United States.” (End of quote).
What does that mean? That means when you look at Article 3, Section 1, the strongest inference that you can draw is the inference that good behavior is another way of saying failure to be convicted of treason, bribery, or other high crimes and misdemeanors. Again, previewing a little bit of Professor Cunningham’s argument there is strong evidence in history that at the turn of the 18th Century the word “misdemeanor” meant “misconduct.”
If you put all of that together there is absolutely no textual argument that judges are impeached under a different standard of the Constitution. Or, I should say there’s no argument that they are impeached via a different process in the Constitution. They are impeached by the same process by which you impeach the President.
If you look at the Articles of Impeachment that have been brought against federal judges, this argument is even worse for President Trump. 15 judges have been impeached; 4 were acquitted; 3 resigned during the process including, for example, Judge Mark Delahay who was impeached for intoxication on the bench.
Andrew: Look, there is no crime as far as I know that says you can’t be drunk while on the bench! [Laughs]
Andrew: 8 were convicted by the Senate. Of those 8, three were in fact convicted of specific crimes; Harry Claiborne, Alcee Hastings, and most recently Judge G. Thomas Porteous.
Five, however, were not convicted of crimes. Those are John Pickering, who was convicted for (quote) “mental instability and intoxication of the bench.” Charles Swayne in 1905 who was convicted of abuse of contempt power and misuses of office. Robert Archbald, 1913, who was convicted of improper business relationship with litigants.
Andrew: My favorite, Halsted Ritter, 1936, who was convicted of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge.
Andrew: Then finally there’s a really interesting and I think instructive case involving West Humphreys. West Humphreys was appointed to the federal bench, the Eastern District of Tennessee.
Thomas: Ah, these names are just fantastic.
Andrew: Ah, well these 19th Century names are great. Was appointed to the bench in 1853, you might recall that a thing happened in our nation in 1861, so Tennessee seceded from the Union and then Humphreys was appointed to the Confederate District Court of the District of Tennessee.
Andrew: So in 1862, because this guy was still technically a judicial appointee of the United States of America-
Andrew: The U.S. House of Representatives voted to impeach Humphreys on the following charges, and again, I will point out none of these were crimes as defined in the U.S. Code at the time. Publicly calling for secession, giving aid and comfort to an armed rebellion, conspiring with Jefferson Davis, serving as a Confederate judge, confiscating the property of military governor Andrew Johnson – because remember Tennessee was a disputed territory. He was acquitted on that charge, by the way, didn’t do that.
Andrew: And of U.S. Supreme Court Justice John Catron, and imprisoning a Union sympathizer with intent to injure him. [Laughs]
Andrew: He was convicted on all the other counts and again, those bare the same relationship to the criminal code as abuse of power and obstruction of congress do to the U.S. Code today. So in other words, putting all of that together, how do the current Articles of Impeachment differ from the previous articles regarding judges? They don’t. They don’t have to, and our history and founding law suggest that in fact the same standard applies, which is the standard we are going to use to impeach Donald Trump.
Thomas: Okay, well that’s a good answer, attorney for the – House manager? You’re a House manager? Yeah, real House Manager.
Does the President Agree that Foreign Interference in an Election is a Crime?
Number four, does the President agree with you, his counsel, that foreign interference in the election is a crime? Okay, what? You might have to give some context around that one.
Andrew: Yeah, so this was a Democratic question asked of the President’s counsel because during their lengthy but [Laughing] not using remotely all of their time opening statements, Trump’s counsel said well obviously foreign interference in our election is a crime. Jay Sekulow, for example, said “if Ukraine interfered in our 2016 elections then President Trump has the right to get to the bottom of it,” never minding that is Russian propaganda and not true, this Senator seized upon the fact that Jay Sekulow appeared to concede that foreign interference in our elections is in fact a crime and so said hey, does Trump agree with you on that? Because he sure doesn’t seem to.
We got among the worst answers I’ve ever seen a lawyer, not Jay Sekulow, give on national television. I keep wanting to call him Regis Philbin, [Laughs] the associate – he’s a partner, but the junior lawyer Philbin for Trump said “well look, foreign information conveying to the President is obviously not a violation of our election laws.” That is just a bald-faced lie.
Andrew: We’ve talked about this over and over again, we’ve had Beth Kingsley on the show, 52 U.S.C. § 30121 makes it very clear that it is a crime to accept anything of value from a non-U.S. citizen without at minimum disclosing it. FEC chair, Federal Elections Commission chair Ellen Weintraub has posted guidelines.
The reason the FEC can’t do its job is because Donald Trump has refused to appoint new FEC commissioners. That ought to be a scandal, I guess that’s 117th on the list of Donald Trump stuff, but the law is clear, the guidelines are clear. If a foreign party tries to help a U.S. Presidential campaign you are required to disclose that to the Federal Elections Commission at a minimum. Probably the FBI depending on the nature of the investigation.
And no, the President has routinely said well, pft, if somebody comes to me with good information it’s not like I would tell the FBI. Yeah, so I will restrain my editorializing on that other than to say that this answer was not just nonsense but duplicitous nonsense.
Thomas: This is one of those “we got him!” [Siren Noises]
Andrew: Yeah, unroll the banner.
Thomas: We got him, cool, it’s over. Gosh, that was …. [Sighs] remember those days when SNL did that? Oh, we got him! It’s the joke that kept on giving. It’s the saddest, darkest joke but there’s all these things where it’s like well we got him, it’s over, and nope.
Thomas: Still going.
Andrew: Yup, still going.
Did Adam Schiff Create Issues of Due Process that Preclude a Fair Trial?
Thomas: Number five: As a fact witness who has coordinated with the whistleblower [Laughs] Isn’t that already not? Okay.
Andrew: Yeah. No, that’s already a lie. Keep going.
Thomas: Did Adam Schiff create material issues of due process that preclude a fair trial? [Laughs]
Andrew: This may be the strangest argument coming out of the Republican side. Let’s leave aside the allegations, which look, as far as we can tell what we know is that the whistleblower talked to somebody on Adam Schiff’s staff because the whistleblower transmitted his or her complaint to the ICIG and then the ICIG determined that the complaint was supported by credible evidence and then the statute says “that shall be passed on to the House of Representatives” and the Acting Director of National Intelligence Maguire just decided to pass it on to Bill Barr instead.
As a whistleblower, a month went by – about a month – went by after the filing of the complaint and they were like hey, Congress, did you get my complaint? That is the extent of the coordination that we know about. And by the way, thank god that happened.
Andrew: If the whistleblower hadn’t followed up then yeah, Bill Barr could’ve just squelched all of this. The idea that that’s a bad thing is preposterous. The idea that it contradicts Adam Schiff saying “I did not personally meet with the whistleblower” is false.
But let’s assume for a second that it were true. If true this would be the definition of what prosecutors do, right? [Laughs] The idea that there’s something nefarious about prosecutors coordinating with complaining witnesses and relevant witnesses prior to prosecuting somebody is just bizarre! Do you think – Uncle Clarence, ask anybody who makes this argument to you, “so is it a problem when the prosecutor talks to the police before putting the cop on the stand?” Because that’s what you’re saying!
You’re saying, no, we can’t have the person trying the President talk to the witnesses who saw the President commit crimes, that’s just bananas in pajamas.
Thomas: [Sighs] This is so infuriating. The whole thing is so stupid.
Andrew: It’s an argument you shouldn’t be able to make with a straight face.
Thomas: And of course the President’s attorneys were like oh yeah!
Andrew: They should’ve said, don’t try and help-
Thomas: Get out! [Laughs]
Andrew: That’s the dumbest argument I’ve ever heard.
Thomas: They should’ve said “get out of this chamber, you idiot, that is the stupidest question I’ve ever heard.”
Andrew: By the way, this is tangential, you’re not gonna ask a question that enables me to say this, but Rand Paul has no on back-to-back days attempted to submit questions naming the whistleblower, as we’ve said because the person’s name is available in the deposition transcript of Lt. Col. Alexander Vindman which was confidential, behind closed doors, but the transcripts have been released publicly. You can find out who the whistleblower is, we absolutely will not repeat that name on this podcast because it is despicable, irresponsible, and the only reason to do this is to discourage future whistleblowers.
I know we use a lot of language on this show, but it is so morally repugnant that I’m astonished to see anyone do it, and to do it over and over again repeatedly when John Roberts is like hey, knock it the hell off.
Thomas: By the way, this is breaking news as we’re sitting here, Rand Paul tweeted the name of the whistleblower.
Andrew: Yeah, yeah. Literally he should be arrested. That is unconscionable to do to someone and you would never do it in any other context because the only point is to make that person’s life miserable for standing up for what they thought was right. Anyway, let’s move on, shall we? I need to get my blood pressure under control.
Will There Be Consequences?
Thomas: Listener Thomas S. asks the House Manager Torrez, will consequences ever happen for any of these people ever?
Thomas: Will things ever matter again?
Andrew: I believe in institutions and I will tell you, we’ve already – Opening Arguments has endorsed Elizabeth Warren for President, I was very encouraged by Elizabeth Warren publicly saying if she’s President that she will appoint a task force at the Department of Justice-
Thomas: Yeah, that’s the best.
Andrew: -to investigate this. It is the opposite – again, look, this is why you have primaries. That’s the opposite of the Obama position. Obama was asked “will you investigate the Bush administration for war crimes for setting up a private torture room in Guantanamo Bay in Cuba?” and he said naw, no, need to heal the nation.
Thomas: Yeah, that was wrong.
Andrew: Look, he was wrong, but that’s a defensible argument.
Andrew: So this is an argument we can have and there are major candidates – there may be others, I don’t mean to suggest this is the reason to vote for Liz Warren, there are lots of great reasons to vote for Liz Warren. This is a major debate where a major candidate has staked out the opposite position that I think happens to be correct in order to restore our institutional norms. So there we go, that is I think encouraging, so if you wanna know will it ever matter? It could matter.
Thomas: Probably not. Alright, let’s [Laughs] This is amazing. Round of applause for Andrew, this is the last question and you’re actually going to get to all of the bullet points, this is incredible. I’m very impressed.
Does Claiming Executive Privilege Require the Identification of Specific Documents Seeking Protection?
Last question, if Trump were to actually claim executive privilege wouldn’t he be required to identify the specific documents or communications he seeks to protect? [Laughs] This sounds like maybe it was asked by a Democrat?
Andrew: [Laughs] It was. Here, look, I want to steel man the other side again. So usually the way in which legal privilege works, we’ve talked about this before, is it works on a question by question and document by document, case by case, basis. There are some privileges that are absolute.
For example, priest-penitent privilege, a priest is absolutely 100% shielded from talking about what they’ve heard in the confessional. If I were to subpoena a priest and say what did Donald Trump tell you in the confessional booth?
Thomas: [Laughs] Yeah! You know one thing about Trump is he’s always in Trump confessing his [Sighs] Ah, forgive me for I have sinned! [Laughs]
Andrew: Absolutely, pious. But yeah, you would not have to go case by case, you could say nope, I’m his priest, not gonna talk at all. That’s the best case argument.
Thomas: I’m surprised he hasn’t used that one, by the way! Ah, these are all my priests!
Andrew: They’re all my priests, yeah.
Thomas: We’re close. Dershowitz’ll bring it up soon.
Thomas: He’ll have everyone ordained as some fake thing.
Andrew: Yeah, but now if that’s the steel man argument for the Trump side, the argument that Donald Trump is making that executive privilege is akin to priest-penitent privilege has been roundly rejected by the Supreme Court since 1974. It is 100% clear that executive privilege, that is a consolatory privilege. We’ve talked about this in the past, but the idea behind a consulting privilege is that you want people, you want the President to be free to solicit honest opinions from his advisors. That’s all true, it’s true in the same way that you want people to be able to seek honest legal opinions from their lawyers.
Both admit serious exceptions. As we’ve talked about, Thomas, you come to me and say hey, Andrew, what’s the best way for me to knock off a 7-Eleven? I sit down and we plan out exactly how you can knock off a 7-Eleven, that’s not privileged anymore! When you’re indicted and I’m called to the stand I can’t claim and you can’t claim on my behalf, attorney-client privilege because I am helping you plan a crime.
That principle applies with respect to executive privilege. We don’t know exactly where the contours of executive privilege begin and end, but we know with absolute certainty that there are those contours, that the position that Donald Trump is attempting to argue in court and in his impeachment trial that executive privilege is absolute, or [Laughs] I love Dershowitz put it this way, he said “executive privilege in foreign policy is absolute.”
That just [Stammers] right? That idea is amazing, the framers definitely intended for the President to be able to invade executive privilege when it came to domestic enforcement of the laws and executive orders and that sort of thing, but no, when it came to foreign policy! There’s nothing to support that, and yes, you would then have to go on a case by case basis and say is this a legitimate exercise of the executive privilege?
By the way, there would be really, really good arguments that we don’t have time to get into about waiver. Your privilege is waived when you decide that you have spoken in a public unofficial capacity about the thing over which you are claiming. So if I say John Bolton and I always had perfect conversations, that arguably is a waiver of executive privilege with respect to John Bolton.
It’s more complicated than that, but the answer to the question is yes, you would proceed on a case by case basis. Yes, the President would bear the burden of proof, yes there would be many, many arguments that executive privilege doesn’t apply here and yes, that privilege could potentially be waived on the basis of what Donald Trump has said in public, in impeachment, by his managers, and in open court.
Thomas: Alright, well you did it! We have just enough time to thank our new patrons over at patreon.com/law. And lots of good reasons to be on that patreon.com/law, including the Q&A thread is already up and that Q&A, I know it’s a little short notice, sorry everybody, but that live Q&A, that YouTube Q&A will be Saturday, that’s this Saturday at 11 Pacific, 11 a.m. Pacific, 2 p.m. Eastern. A nice daytime, Andrew can get day drunk and [Laughs] answer the listener, patron questions, but everybody is invited to come hang out on that YouTube chat. Come on down, we’ll post on the social media about it as well.
[Patron Shout Outs]
Thomas: Alright, thanks so much for becoming Patrons. Join up, everybody, it’s a good time. Lots of goodies, including bonus early episodes. We’re gonna do a bonus episode if everything works out, the stars align, and patrons’ll get their hands on that a little early, so there you have it! Alright, it is time for T3BE!
T3BE – Question
Andrew: Alright Thomas, so this week’s question: A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury-
Andrew: -entered their room intending to attack the student with an ice pick-
Andrew: – while he slept.
Andrew: And this is [Laughing] scarily familiar to something that actually happened to me in college, so-
Thomas: Woah, really? I was gonna say I had a bad roommate that I really didn’t like, but it never got this bad.
Andrew: Yeah. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day the student heard from friends about the roommate’s murderous plans and later found the ice pick under the roommate’s bed. Even though the college expelled his roommate-
Andrew: – the student remained extremely upset and afraid to sleep. By the way, I love the progression of this question. So the question: In a suit against the roommate for assault will the student prevail?
Andrew: A) No, because the roommate did not touch the student.
Andrew: B) No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
Andrew: C) Yes, because it was reasonable for the student to feel afraid to sleep in his room afterwards.
Andrew: Or D) Yes, because the roommate intended to inflict serious harm.
Thomas: Oof! Oh, wow, what a question!
Andrew: I love the question.
Thomas: I love this one!
Andrew: It thinks, it’s deking you out to thin it’s gonna be a criminal question at first. This is the definitive, this is super typical of what bar questions are like.
Thomas: Yeah, I thought it was gonna be like an evidence question. Oh, the ice pick’s under the bed so… nope! Wow, this is great because we’ve talked about this, this is one of the few things I actually did remember from my lone college law class was assault and battery are two different things, battery’s the actual battering – it’s as delicious as it sounds, there’s a batter and you put it all over the person.
Andrew: Mmmm, fish and chips!
Andrew: Deep fried Mars bars? Ah.
Thomas: But I love this because this seems like a very tough question because I feel like I know a decent amount about the law in this question. Sometimes I just have no idea and I have to guess, but I feel like I know an okay amount, more than zero, but it’s still impossible because [Laughs] this is a tough question!
So normally the assault is the, like, I have a knife and I march toward Andrew menacingly and I get hit by a car so I never actually touch Andrew, but that would still be assault because you feared for your safety or something like that. I don’t know the exact terms, but it’s something like that. But in this case the roommate was asleep so they only feared for their safety after the fact from hearing from friends about what the roommate was going to do.
Ooh, I don’t know, that’s – okay. Let’s go through the answers. The question is in a suit against the roommate for assault, so assault is the question. No battery, that’s assault. Will the student prevail? A, no because the roommate did not touch the student. That’s the one I can easily eliminate because that’s battery, I think that’s asking about battery and this is assault, so I’m gonna eliminate A. After that I think it gets a whole lot tougher.
Let’s see. B, no because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him. So that’s a really plausible answer. B looks like it certainly could be it.
C, yes because it was reasonable for the student to feel afraid of sleeping in his room afterward. [Inhales] Okay, so that seems reasonable. I’m gonna go through D and then I’ll come back around.
D, yes because the roommate intended to inflict serious harm. That’s another! Seems pretty reasonable because part of the assault thing might be you’re coming at someone with the intent to inflict serious harm, but does the intent matter or does the effect on the person matter? So if I’m marching towards a sleeping person and they never know that I’m marching toward them with the intent to inflict serious harm, so that’s what the question turns on, I think.
At first I thought B, C, and D were all good answers but now that I read C where it says yes because it was reasonable for the student to feel afraid of sleeping in his room afterward, that sounds more like a charge of causing emotional distress or whatever that one is. That doesn’t seem like a component of assault. Even though it seemed plausible at first, so I’m gonna eliminate C.
My New York Times endorsement answers are B and D, so that’s gonna be a tough choice. So B, no because he was not awake, that’s a good answer. That’s on the logic of sorry, to be assaulted you have to know you are assaulted. It can’t be like later, you know.
Then D is yes because the roommate intended to inflict serious harm. So D would be under the theory that it doesn’t really matter that the student was asleep because the person did the assault part, that’s the part that matters, not so much the feeling or the effect that it had on the sleeping student. So that’s why I find B and D to be the plausible answers.
I imagine this’ll be some court case, some case you’ll reference where yeah, this was decided in the Supreme Court or something. I dunno, I think I’m going to go with B because [Sighs] I think a component of assault has to be that you reasonably feared for your life, or felt afraid or whatever of bodily harm, and I think if you’re sleeping.
After the fact what he should probably sue the student for is causing emotional distress, you know? Like after I found out about this plot to kill me, or this plan to kill me, I couldn’t even sleep in my bed anymore, that’s what I think the tort would be, possibly? So I’m gonna go with B, but I love this question. Not sure, but jeez, I think I have a streak going so [Laughs] the streak rests on this! On B, so that’s final answer B.
Andrew: Alright! And if you wanna play along with Thomas 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, we will see you folks on Saturday, again, for the live Q&A on YouTube. Find us, we’ll tweet it out, all social media. Also if you subscribe to our YouTube channel, I guess, it’s not a thing we’ve done much with but we do these with it so you’ll get a notification there too if you’d like. Alright, thanks so much for listening, we’ll see you next time!