Listen to the episode and read the show notes
Topics of Discussion:
- Dumb News of the Week: Pelosi Ripped Paper
- Impeachment Review
- Can the Department of Homeland Security Deny Eligibility for Global Entry to New York Residents? (Still no.)
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments, this is episode 358. I’m Thomas Smith, that over there is P. Andrew Torrez, esquire. How’re you doing Andrew?
Andrew: [Laughing] I am doing fantastic! Did you see, one of our listeners sent P. Andrew Torus with the donut shape on social media?
Andrew: You know, as long as we’re continuing to add plays on my last name.
Thomas: It’s hard to compete with your cow name, though, P. Andrew Taurus.
Andrew: Oh, no, obviously that’s the best. Shout out to Del.
Thomas: Because you moo the noodle! [Laughs] You moo the noodle, so we can’t.
Thomas: That’s just part of the brand. But yeah, thanks, we do appreciate that everybody. Alright, so much to talk about today, Andrew. How about that bonus episode we did? I hope everybody listened to that, 357, came at you a little early. We talked about Iowa, all that stuff.
Thomas: Well Iowa’s all fixed now, though.
Andrew: [Laughs] Yeah-
Thomas: It’s all distant, rearview mirror. Go ahead.
Andrew: [Groans] Yeah, no, I’m gonna let that lie. I will say this, 99+% of the response we got was very positive. You know, half a percent was folks who encouraged us to revisit conspiracy theories and, you know, I just have to say- [Laughs] My favorite was the one sort of calling us, giving centrist hot takes despite your position, Thomas, as being to the left of AOC on the political spectrum and explicitly calling for the Democrats to unite behind Bernie Sanders in the trailing moments. I enjoyed that.
Thomas: Yeah, well I’ll just say this, I think what’s funny now is I just saw, because it is kind of newsworthy, Tom Perez called for them to re- he used a word that was little confusing to people. He said “re-canvas” which sounded like, what? You’re gonna go door to door and ask people how they voted? [Laughs] But then he clarified he meant go through all the receipts again, go through all the paper again.
Thomas: And, by the way, because it looks like they totally effed it up again! It looks like they made some spreadsheet errors and stuff, but by the way, these are all errors that, if you’ve ever worked in an office or had any job like this, this is just the norm! Yeah, they need to have a better system in place, don’t get me wrong, but once that system went to crap and they were trying to audible and like, okay, we’ll gather it up in a Google Doc or whatever they’re doing, of course there are gonna be errors like that.
Thomas: I still think we should by all means be upset with the Iowa Democratic Party, don’t get me wrong.
Andrew: 100% yeah. [Sighs]
Thomas: Don’t get me wrong! I’m just saying it’s still so within the realm of incompetence versus conspiracy theory.
Thomas: Especially since we’re seeing that everybody can check the answers.
Thomas: There’s no way they’re getting away with it.
Thomas: But the last thing, what I was gonna say about this, even with Tom Perez doing that people are still saying this is a DNC conspiracy.
Thomas: A) that shows that the DNC is not in charge of the process, which we already covered; and B) he’s calling for them to reconfigure the final results because they’re wrong!
Andrew: Yeah, those are the two precise points that I wanted to make, and since you stole them from me I’m going to repeat what you said-
Thomas: Ha ha! Sorry! [Laughs]
Andrew: -in slightly different words.
Thomas: [Laughing] Yeah.
Andrew: The first one is, and this is the most crucial bit, okay? Because I tweeted the day of “The DNC does not count or administer the votes in the Iowa election.” A couple of people have since said well look, here’s Tom Perez coming in afterwards to help out. A) that doesn’t respond to the initial claim, which I’m gonna make super clear in a second; and B) it’s a ridiculous fake double-bind. If the DNC just sort of sat back and said “well, we don’t care, do whatever you want,” then that would be proof of the conspiracy, right?
Thomas: [Laughing] Yeah!
Andrew: The fact that the DNC is coming in after the fact is not a part of what supports the conspiracy theory allegations, because the conspiracy theory allegations involved the DNC somehow manipulating the vote totals or causing the screw up in the first place and there is zero disagreement by anywhere! Even by people who are peddling this sort of nonsense, that the DNC had anything to do with the initial decisions, with the initial counting, with the initial reporting.
The best anybody can do is say “well the DNC encouraged them to use the app.” You know, [Sighs] I think we’re clear enough on-
Thomas: Is that even true?
Andrew: I don’t even know, but I’m assuming it for purposes of the argument. If that were true, that is a much thinner read than Wernher von Braun went to Antarctica two years before the supposed moon landing.
Andrew: And the biggest thing, look, that’s true. That’s the best piece of evidence that Joe Rogan and moon hoaxers have going for them. It’s “how can you explain how Wernher von Braun went to Antarctica, it’s right there in the public record.”
Thomas: What? I was literally just gonna let it go for the sake of the episode-
Andrew: The idea is, yeah.
Thomas: I wasn’t sure what conspiracy theory that was! I thought that was flat earth for a second-
Andrew: Yeah. No, it’s fake moon landing.
Thomas: Because they’re always like, no, Antarctica is like a fort- there’s a wall there.
Thomas: Or something.
Andrew: No, it’s fake moon landing.
Andrew: The idea is why else would we have sent Wernher von Braun to Antarctica a year and half before we [Sarcastically] supposedly landed on the moon if not to get fake rocks from Antarctica to pretend that they were moon rocks.
Andrew: I’m 100% not making this up.
Thomas: Alright, sure. Anyway.
Andrew: The biggest part, this would be the stupidest possible conspiracy to execute because again, the parties to the conspiracy are saying what we need to do is have multiple parties examine the paper record trail. That’s the kind of thing that really makes for a super bad conspiracy theory. Anyway… Let’s move on.
Thomas: Part of my job at the State, and actually in my job before that, was trying to get people who had paper records for everything to start using Excel and start putting stuff in databases and all that. These are educated, professional people and this crap happened all the time. Stuff is entered wrong, stuff is whatever, and even people who are doing a decent job make mistakes.
This is well within the realm of incompetence. Again, not to take the blame off – to absolutely reinforce that the Iowa Democratic Party should have had a better system in place, do not get me wrong, I am not letting them off the hook, I’m just saying it’s so easily within the realm of incompetence to me that you don’t need a conspiracy theory to prove it.
Alright, well, all that was not planned, but it’s just a little update.
Andrew: We’ll lose more patrons, but look, I’m happy, this is a conspiracy theory free podcast and we are-
Thomas: Well, unless things actually were conspiracies, like Watergate and some Trump stuff.
Andrew: [Laughing] Right. How about a podcast that encourages skepticism on conspiracy without much in the way of evidence.
Andrew: Look, again, part of what we’re doing here is reporting against our own interest, right? So I just don’t, the whole ethos of the show since day one has been let’s look at facts, let’s look at the law, let’s make rational decisions. Hopefully the 99.5% of you in our audience that supports that, let us know. [Laughs]
Thomas: You don’t even need to mention, it’s a couple troublemakers, not a big deal.
Andrew: Anyway, alright.
Thomas: So, alright.
Andrew: Look, I want our listeners to love us, so that’s…
Thomas: Here’s a good transition for you. Andrew is allowing me to toss out a quick plug because if you want a break from all this nonsense after listening to our show, of course, but if you want a break from politics for a minute, over on Serious Inquiries Only Jamie and I just recorded what might be one of my favorite episodes of all time. Nothin’ to do with politics.
Just a little teaser, and this is a little bit of spoilers for the episode but I think it’s worth talking about. She found out just, I dunno, a month ago maybe? When something went viral talking about inner monologue, you know, the inner voice that 100% of us all have going in our head all the time?
Thomas: Yeah, she saw that and had never realized that other people have this. Turns out, Jamie my cohost, does not have an inner monologue.
Thomas: And has whatever- yeah!
Andrew: How can you not have that?!
Thomas: For real! I know! She went through a whole process of telling people “this is crazy, right? Nobody has this, right?” and everybody’s like “what?”
Thomas: So we talk about it on the show because it’s an interesting philosophical topic as well, talking about how different people reason and different people process things and the implications on consciousness and all that stuff. It was just so much fun, it’s two people who have totally different ways that they are processing the world talking about it and getting to hear from somebody who is honestly different than 95+% of all humans, maybe more. There’s a few- It’s a big world so we’ve gotten some feedback from other people who are like Jamie-
Thomas: -but still for the vast majority of people it’s gonna be very mind-bending to listen to. I just wanna throw that out there because it was a lot of fun, nothing to do with politics. If you’re interested in a little break, of course after finishing this episode, then I would encourage people to check it out. Serious Inquiries Only, find it wherever fine podcasts are sold.
Andrew: [Laughs] That sounds awesome. That’s exactly the feeling I had, and I was in like my mid-20s when I had proven to me in a large group of people that I have a slight red-orange color blindness.
Thomas: Oh, interesting!
Andrew: Yeah, it was something that everyone was like “well obviously that’s red and that’s orange” and the two things were identical. I could not tell the difference between the two colored things.
Thomas: [Laughs] That’s every day with me and my wife, though.
Thomas: I genuinely … now I’m worried! [Laughs]
Andrew: I thought I was being punked!.
Andrew: Because we were at a party and they were like “should I wear the red one of the orange one?” and I was like, “really? Come on.”
Andrew: Everyone, it was only because there were 20 people around that were like “no, those are two different colors, do you not see that?” I’m like right, I get it, I’ve been drinking, but I haven’t been drinking that much. Seriously, it was fun.
Thomas: Wow! There’s a great Parks and Rec episode where they have six different colors of white that they’re doing and they try to get the one guy to pick it and he’s like “they’re just white,” he’s like no no no, and they go through all the shades.
Andrew: Eggshell, ecru! [Laughs]
Thomas: That’s right! Alright, let’s get to our-
Andrew: Okay, we have a show to do!
Thomas: Oh, you know what. We do, but we also have one more exciting thing to talk about which is we are, Andrew and I are brewing stuff behind the scenes, we’re looking for maybe new stuff to offer. As part of that we’re gonna be a little teasery, I guess. As part of that we were thinking it would be great to answer questions that people might have on a given – well I guess on any episode, but mainly on the Rapid Response Friday. We’re thinking what we’re gonna do is we’re gonna use these questions.
So, patrons, if you hear a Rapid Response Friday and then you have a question for Andrew, a cross-examination if you will-
Thomas: -of the point he’s making or, ‘cuz you know, Fridays are usually, they’re the main news of the week, they’re important, they’re Andrew’s take which is usually a different way of looking at it than you’re getting from a lot of the mainstream media. Sometimes people have a lot of clarifying questions, so if you’re one of those people, if you hear something in today’s episode and you think “oh, what about this or what would Andrew say about this?” post it as a comment on the episode thread in Patreon.
That’s the plug, if you’ve got a question about this episode or any Friday episode post it as a comment on the Patreon post and that’s where we’re gonna look for to use this for a thing we’re planning. Sorry for a little bit of vague-booking there, but please, I encourage you if you have any questions like that, that’s where to post them.
Alright, at long last, let’s get to our main stuff today.
Dumb News of the Week: Pelosi Ripped Paper
Thomas: I’m pretty sure that Nancy Pelosi is currently in a dungeon somewhere for destroying a holy record.
Thomas: His Royal Highnesses Holy Record.
Andrew: Don’t give them any ideas, Thomas! Yeah, this was sort of dumb news of the week and hopefully this will be the shortest Opening Arguments segment ever. Charlie Kirk and our good friend Matt Gaetz both decided to tweet out that Nancy Pelosi had violated 18 U.S.C. § 2071 for tearing up her copy of Trump’s State of the Union Address. Matt Gaetz, himself the subject of several ethics investigations, went so far as to file an ethics complaint about it.
Andrew: Against Nancy Pelosi. I should point out, that in and of itself is sanctionable. You cannot-
Thomas: Bogus ethics complaints?
Andrew: Yeah, right.
Andrew: You cannot… [Sighs] Gosh. Matt Gaetz can always use the “I’m truly that stupid,” and he might be. Charlie Kirk knows that he’s peddling nonsense. So let’s just be super clear about this because I like being clear, 18 U.S.C. § 2071 subsection (a) is about destroying government records. Here is the relevant text:
It says “whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so (ellipses) … any document or other thing filed or deposited with any clerk or officer of any court in the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
Obviously getting a copy of the President’s State of the Union Address is not the document filed with a clerk or officer of a court of the United States.
Thomas: [Yelling] Duh! Gosh.
Andrew: Again, all you have to do is read the language of the statute. Let me explain this from the perspective of a lawyer. What this means is if I file a lawsuit against somebody it is illegal for you to break into or otherwise access the court’s records and tear up and delete that document. That’s the crime. If I mail you a courtesy copy-
Thomas: You mean to tell me [Laughs]
Andrew: -or if we download Larry Klayman’s lawsuit online and print it off-
Thomas: And print out an extra copy and destroy it! [Laughs]
Andrew: And then you know, have a viewer watch party where we take turns urinating on it or something like that.
Andrew: Which, by the way-
Thomas: Okay, I was trying not to reveal our new idea but you just spoiled it.
Andrew: Sorry about that! Larry Klayman – let’s make it burning. Let’s keep it tasteful and above the belt.
Andrew: But a Larry Klayman lawsuit burning party, new Patreon goal. No, obviously that’s the stupidest thing. I can’t even say it’s the stupidest thing Charlie Kirk has said.
Thomas: No, yeah.
Andrew: It is definitely not the stupidest thing Matt Gaetz has said, but it’s unbelievably stupid and it is – again, if you have an Uncle Clarence, an Uncle Frank in your life who is repeating this kind of nonsense, number one – this is a good point. We talk about olive branch or shaming? This is a good point to shame and just say “have you really thought about the news sources that are peddling this that are making you look like a buffoon, Uncle Frank?”
Number two [Laughing] I should point out the additional, this is always the case as with Donald Trump. Donald Trump himself almost certainly has violated this law.
Thomas: In a real way, not a fake way.
Andrew: In real ways, and in particular by deleting Tweets that contain executive pronouncements, by shredding documents, by placing transcripts of phone calls in fake top secret classification servers.
Andrew: The point of this act is to preserve official government communications for the public record. Nancy Pelosi in no way interfered with that. Donald Trump interferes with that all the time, so this is a stupid argument and an own-goal and you guys knew that.
Thomas: It’s entirely bad faith.
Andrew: Yes, yes.
Thomas: 100%. Sometimes we can say well these people are misinformed on this or that. This is 1 million percent cynical, bad faith garbage.
Andrew: Yeah. And by the way, I love your take on this and [Laughing] this turned out not to be the shortest segment in the history of Opening Arguments, shocker.
Thomas: Well we can end it. [Laughs]
Andrew: But give me 30 seconds.
Andrew: I thought this was a brilliant move by Nancy Pelosi, what do you think?
Thomas: Uh, yeah! I mean it’s the kind of thing where she can do no right for some people and, you know, I’m sure she can do no wrong for other people but there are some people who are never happy no matter what she does. That’s just annoying. But this is exactly the kind of thing where people talk about “how do we start fighting back in a way that works against Trump?” because the normal stuff just doesn’t work. This was something that honestly, I think, worked!
Thomas: It entirely took the steam out of his BS State of the Union rally that he had.
Thomas: And it pulled the focus. I dunno, I’m not entirely sure that that’s what I want us to be doing as a party but in this instance I think it worked, and whatever.
Thomas: He just needs to go. Stop putting Nancy Pelosi’s every action under a microscope when it’s like the problem is Trump and the Republicans who are allowing him to break whatever laws he wants. I’m not saying you can’t criticize her at all, I’m just saying maybe not an electron microscope of criticism, maybe, you know, an arm’s-length criti- kind of a normal amount of criticism. Not this hyper aggressive, every single tiny thing she does, because she’s facing down an unprecedented disaster that’s really difficult to know what to do with in Donald Trump, and this worked.
Andrew: So you’re saying, and yet another sop to our Bernie Sanders supporting friends out there, that maybe it was a bit hypocritical that the media spent a week questioning whether Bernie Sanders said that a woman couldn’t be President long after the supposed tiff during the debate was over, but nevertheless Donald Trump says six sexist things before breakfast.
Thomas: Mm-hmm. Yeah!
Andrew: I agree with that.
Thomas: Wow, you’re really trying to step in it this week! [Laughs]
Thomas: Alright, shortest-ish segment, done. Let’s move on to our main topic.
Romney & Collins Votes
Thomas: Alright Andrew, I cannot believe. When I first read this I thought somebody must be mistaken, but Mitt Romney, first ever Senator to vote against, or I guess rather vote for conviction for a President of his own party. First ever in the history of our country. Now there’s only been, what, three official impeachment votes?
Thomas: So not a ton to choose from, but still I had no idea he was the first ever. I think we can give him some credit for that.
Andrew: He absolutely deserves credit and let’s – it is the flip side of what we said when we were breaking down the Republican lack of arguments on impeachment. Remember, there were only nine Democrats in the Senate during the Andrew Johnson impeachment and all of them voted to acquit. Every Democrat voted to acquit Bill Clinton, so yeah, when Republicans try to tell you that this is a partisan witch hunt and unprecedented in history, it is actually as much the exact opposite of that as could possibly be the case.
Andrew: That is 100% thanks to Mitt Romney. Now we have already seen Sean Hannity and Fox News are out there with the intent to brand Mitt Romney as “why don’t you caucus with the Democrats!” Your niece is the chair of the RNC, you were the party’s Presidential nominee in 2012!
Thomas: Yeah! [Sighs]
Andrew: But you were never really a Republican.
Andrew: Again, if you’ve got family members who are on that train, I pity you. [Laughing] I don’t have any idea what to say.
Thomas: Don’t we all?! We all do, right? It’s not just me … no?
Andrew: No, that’s pretty much just you, yeah.
Thomas: Andrew, you live in a world of privilege.
Andrew: I do! [Laughs]
Thomas: Sensible family members.
Andrew: Well the non-sensible ones I don’t talk to, so… [Laughs]
Thomas: Oh, that counts! [Laughing] That’s what I’m talking about!
Andrew: [Laughs] But I haven’t talked to find out if they’re espousing this particular bit of nonsense.
Andrew: Look, there is – Mitt Romney, and we praised him on our Twitter outlets. Whatever you think in whatever other capacity, however else you wanna spin this, this was an act of personal and political courage and this is the exact opposite. If we’ve been criticizing the grandstanding of people like Susan Collins, gonna get to her in a second, who always seem to talk a big game of opposing the President and then vote in lockstep with him every single time, this was the exact opposite.
This was somebody who gave no advance indication that he was considering voting to remove Trump from office. Again, on Article I, on abuse of power not on obstruction of justice. We don’t have time to explain the differences, maybe we’ll do that in a follow-up or in a Patreon special. But the exact opposite. Not floating about going “hey, look at me!” Went and as an elected representative who is doing their duty to the country did so on this vote and everybody who cares about institutions and the rule of law should offer Mitt Romney some praise on that and he deserves it.
Thomas: Yeah. Doesn’t mean he’s our new-
Thomas: -messiah or anything.
Thomas: Doesn’t mean he’s a liberal, none of that. I’ve seen a lot of that, people worried about that overreaction, and it is true that so many of these Republican never-Trumpers have, they’ve sold a lot of books and stuff that maybe they don’t deserve to have sold from liberals who are really happy that they’re going against Trump. You don’t have to worship him or anything, but he deserves credit. He absolutely deserves credit for this, this is a hard thing to do. No other Senator has ever done this in our history!
Andrew: [Laughs] There you go.
Thomas: Especially now!
Andrew: Yeah, that’s right. If there’s an anti-Mitt Romney I would nominate, as we suggested, Susan Collins, who delivered I think the most flabbergasting moment in this entire process in which she said “well I think Donald Trump has certainly learned his lesson by being impeached.”
Andrew: Again, kudos to Susan Collins for being able to deliver that with a straight face because as somebody who has to read jokes that Eli writes for me in segments, sometimes we have to do a dozen takes before I can get it out.
Thomas: Yeah, how many takes did she have to do? [Laughs]
Andrew: How many takes do you have to do to be able to say that without, oh god, [Laughs] I’m sorry, I just can’t.
Thomas: Alright, take 60 seconds, I’ll get it! Oh, okay, I’ll get it! Hold on, hold on guys.
Andrew: Clownhorn it, we’ll do it live!
Can the Department of Homeland Security Deny Eligibility for Global Entry to New York Residents? (Still no.)
Andrew: The exact opposite is, of course, the case. That is my effort at a transition to Donald Trump is now emboldened and will be for the rest of his Presidency to use the powers of his office to benefit himself personally, to reward himself and to punish his political enemies, and we saw that yesterday.
Donald Trump had one of his lackeys, the Acting Secretary for the Department of Homeland Security send a well-publicized two and a half page letter to the State of New York and specifically to the Acting Commissioner and Executive Deputy Commissioner of the New York State Department of Motor Vehicles, which is kind of a weird place, by the way, to announce policy. We’ll get to that in a second.
That says, and here I suppose we can quote directly from this letter. Number one, that New York residents will no longer be eligible to enroll or re-enroll in any trusted traveler programs, that’s the TSA Pre-Check, Global Entry, and other programs that expedite your approval through the airport. And this is the best one. This part is just words. Number two, vehicle exports. Because the act hinders the Department of Homeland Security from validating documents used to establish vehicle ownership, the exporting of used vehicles titled and registered in New York will be significantly delayed and could also be costlier. [Laughs]
Andrew: Yeah, that’s just a dumb bureaucrat who’s eight spaces above his station saying stupid stuff on behalf of Donald Trump. That part is nonsense, but a lot of people are asking is the first part something that the Department of Homeland Security can do? Can they just say New Yorkers are not eligible to participate in Global Entry? The answer to that, while I’m going to go through all of the history of the laws, the enabling legislation, the corresponding rules and everything, I wanna skip ahead to the fun punchline which is: No! Of course not!
The Trump administration can’t do this, people are already, I’m confident, drafting complaints, getting ready to race into court to get an injunction and a declaratory action. I predict, by the way, that when that happens – we’ve talked about this in the past – that Trump’s lawyers will go into court and will argue “oh no, these were just words, we were just announcing a statement of intent, this is not actual policy so don’t issue an injunction because there’s nothing for us to do.” We’ve seen them take that tactic in the past and I predict they will do the same with respect to this letter because there’s absolutely no legal ground that permits the Trump administration to do this. I’m going to explain why.
I do want people to know the bottom line. [Laughing] For those who get bored of this show about 29 minutes in.
Thomas: So it’s your framing of this that this is retaliatory?
Thomas: Like the State of New York impeached Donald Trump or something?
Thomas: I guess there’s just a lot of liberals there?
Andrew: Chuck Schumer is from New York. I will tell you the reason why I think this is specific political payback in about two minutes time. How does that sound?
Thomas: Oh! As in maybe we’re taking a quick break?
Thomas: Aaah, wow. I see, that was brilliant. Really good job.
[Commercial – vistaprint.com promo code “OA”]
Thomas: Okay, we’re back. Andrew tell us why this is retaliation.
Andrew: Yeah. So this letter is ostensibly about New York Senate Bill 1747B, the Green Light Law, which went into effect in December of 2019. That law allows those who lack a lawful immigration status, and by the way sidebar, if you wanna know why I’m using those terms you could go back to episode 52 in which we quoted from immigration lawyer Lily Axelrod in terms of how to best accurately describe the status of various aliens under the actual U.S. immigration law.
Anyway, it allows those individuals to apply for a standard driver’s license in the State of New York. I will point out two things with respect to that. Number one, 12 other States and the District of Columbia have similar laws.
Andrew: In many cases word-for-word identical to the law passed by the State of New York. Number two, and put a pin in this one. A standard driver’s license is not real ID compliant, cannot be used at the airport to validate your right to commercial airline travel as of October 1, 2020. So in other words, all of this as related to “we need to” is just not supported by the factual record in any way whatsoever.
I also wanna say yes, we have a liberal audience, but if you’re a moderate, if you’re conservative, if you’re libertarian, if you’re on the fence of “why do we want illegal aliens to have driver’s licenses?” Again, I’m using their pejorative language there. Here’s the answer to why you should want those lacking lawful immigration status to be able to get a standard New York driver’s license:
Number one, if they do that then those individuals are for more likely to pay for auto insurance while they are driving as opposed to driving without a license and without insurance which increases the costs on all of us. So if you care about economic free riders, if you’ve got a poster of Ayn Rand in your bedroom, this is a really, really good reason to want to have individuals that we know are here, that we have no intention of rounding up and deporting, who are a part of our society to participate in the process.
The second aspect that I think should also appeal to you is when individuals are terrified of being at the margins, those people act like criminals even when they are witnesses to other more serious crimes, whenever they have any sort of interaction with police. That causes a tremendous amount of social externalities and costs. So even if you’re just in it for yourself, even if this is the virtue of selfishness, this is a really, really good bill. This is the kind of thing that should be law in all 50 States. The fact that we create a separate category of documents here is, I think, very good protection against any valid argument on the other side.
It is not, of course, anything related to the arguments being raised in this two and a half page memorandum. So the question is what powers does the Department of Homeland Security actually have to administer the global entry program? As it turns out this is a little bit of a complicated story because DHS is an executive branch agency, so it needs Congressional authorization. The Congressional authorization [Laughing] this is the pace at which our laws move!
Here’s the timeline: 9/11/2001, then we scrambled to sort of lock the barn door after the horse had gotten out and passed a whole bunch of restrictions on travel. In 2004 the House of Representatives passed a bill that eventually would become 8 U.S.C. § 1365b, and I don’t mean subsection b, I mean they needed to insert it in between 1365, 1365a, and 1366 so they called it 1365b all in the main section heading.
Andrew: That instructed the Secretary of Homeland Security (quote) “shall develop a plan to accelerate full implementation of an automatic biometric entry and exit data system” then describes the kind of data to be collected and says “shall include a requirement for the collection of biometric exit data for all categories of individuals who are required to provide such data regardless of the port of entry where such categories of individuals entered the United States.” That’s kind of important.
Then pursuant to that, that only took 5 years for the Department of Homeland Security to come up with a pilot program, and their pilot program was the global entry program. So DHS promulgated a rule which is in the federal register, 74 FR 59932, in 2009 to pilot what became the global entry program. Then a mere three years later we decided that we were gonna roll out that global entry program to every airport in the United States, in 2012, that’s 77 Federal Register 5690. Got all that? [Laughs]
So, you know, eight years from law to implementation, but the wheels of administering airports churn slowly I guess.
Thomas: So the reason I had to go into the DMV and get a different ID with my license now is from 9/11?
Thomas: Oh. Okay.
Andrew: 100% it’s all still from 9/11. And by the way-
Andrew: We are not talking about the Real ID Act which is a separate piece of legislation.
Andrew: But it interacts.
Andrew: Because this is not – there is no power, it’s a really good question, there is no power under the Real ID Act for DHS to do what they’re doing because these New York licenses do not qualify for real ID. They say “not for federal use” on them, so it absolutely is beyond the power of the federal government, particularly the Department of Homeland Security to regulate which, again, would be an interesting argument for a pro-federalist conservative judiciary to want to take up to say that you could regulate purely intra-State commerce and regulations by the State of New York.
So as a result of that, the rules were codified in the CFR. 8 C.F.R. 235.12 describes exactly how the global entry program is to be authorized, is to be administered. It says, this is the critical part, subsection (b)(1) says “the following individuals who hold a valid machine-readable passport, a valid machine-readable U.S. lawful permanent resident card, or other appropriate travel documents, may apply to participate in global entry.”
Subsection (1), “U.S. citizens, U.S. nationals, and U.S. lawful permanent residents, absent any of the disqualifying factors described in paragraph (b)(2),” then (b)(2) sets forth those disqualifying factors. It says if you’re a citizen and you have a passport, you get to apply unless you’re disqualified by (b)(2).
What disqualifies you? “An individual is eligible to participate if CBP,” which is a subdivision of Homeland Security, “at its sole discretion,” which might lead you to think okay, they can do that, “determines that the individual” that’s the key phrase, and then here are the basic warrants: “presents a potential risk for terrorism, criminality, or otherwise is not a low risk traveler.
The risk determination will be based in part upon an applicant’s ability to demonstrate past compliance with the laws which include 1) providing false information on the application; 2) arrest records; 3) found in violation of any customs, immigration, or agriculture regulation; 4) is being investigated by any federal, state, or local law enforcement agency; 5) is inadmissible to the U.S. under applicable immigration laws; 6) is known or suspected of having been engaged in or aiding terrorism; or 7) cannot satisfy CBP of their low risk status or meet other program requirements.
I know that’s a lot of legalese, but let’s put all that together. What that means is under the existing procedures, CBP in administering the global entry program, must evaluate you as citizens on an individual by individual basis. They cannot say oh, you’re from New York so therefore we’re not going to consider the application. The policies and procedures in place, the rulemaking made by the Department of Homeland Security prevents them from doing that and the authorization under the statute, it’s why I went through the whole history and read that particular provision of 8 U.S.C. § 1365b.
The enabling legislation that gave them the right to set the rules in the first place requires the collection of data and applicability to all applicants (quote) “regardless of the port of entry where such categories of individuals entered the United States.” So it is 100% clear that this authorization, that this letter, is A) ultra virus, it is beyond the power of the Department of Homeland Security to do. To the extent that it is considered new rulemaking it would not comply with the Administrative Procedure Act. Even if it did comply with all that it would violate the constitution, it would violate the equal protection clause as lacking a rational basis for all of the reasons that we’ve set forth.
Let me layer one more thing on top of that, which is in addition to being patently irrational because the license provided by the State of New York is not usable as of August 2020 in order to get on an airplane. In addition to that, the Office of Inspector General did an audit of the DHS and the global entry program that concluded in June of 2019, contained six action items, and CBP agreed to comply with those action items and zero of those action items, in terms of documenting massive failures in the global entry system, zero of those action items had to do with illegal aliens getting drivers licenses.
I will link the document in the show notes, you can search it for yourself, CTRL+F and look for DMV, motor vehicle, driver, license, or any other related term, you will not find it other than as a description of complying agencies in appendix C of the document.
It absolutely responds to a nonexistent problem that is not unique to New York, that cannot possibly implicate air travel in a way that is open and discriminatory and blatantly disregards the actual evidence conducted by another Trump agency with respect to how this program is administered. I am 100% confident that even the worst Trump hacks on any district court will have no problems enjoining this to the extent this letter does a thing, I don’t think Donald Trump will even defend it in court. It will not go anywhere, it absolutely clearly is illegal.
Is that clear enough?
Thomas: It’s clear as Kushner.
Thomas: But will there be any consequences? Or is it just fine for them to do a retaliatory thing that’s totally illegal and then a court will be “hey, did you know this is totally illegal” and they’ll be like “oh, yeah, just …. Kidding,” or something.
Andrew: So let me answer that in two ways. Number one, I think a court will enjoin DHS from implementing this letter. Then we’ve seen how Trump has interacted with the courts, that could set us up for potential conflicts down the line, but by and large government bureaucrats do indeed tend to follow what courts of law tell them to do.
The other aspect is this is an area, the administration of the global entry program is an area that is bipartisan and, to a large extent, skews Republican because the kinds of people who travel on airplanes a lot also tend to be major constituents of the Republican party, so I would point out H.R. 3675 is pending in this Congress. It is a bipartisan piece of legislation, it was introduced by a New York [Laughs] funnily enough, a New York Republican Congressman named John Katko.
Basically what it says is that millions of people have applied for pre-check and global entry, and they have severe problems with how that application process or renewal process is being administered by CBP, so the legislation would require the Comptroller General of the United States to conduct a review of the DHS trusted traveler programs. I’m not gonna go through the three, four points that are raised in the review, but basically to require an internal audit in order to fix the problems because Republican Congressmen are responding to their constituents who say hey look, I was denied my renewal or I was denied the ability to get global entry because of this dumb thing.
I’ll attach, actually, there was a good one. When I was doing the research on this there was a New York Times article from 2012, that’s how far back this goes, and people talking about having expunged juvenile arrests on their record and somehow it’s triggered the flagging, and these are people who are in their 40s and 50s going “I had to try and dig up a juvenile expungement record from 1984 and that was crazy!”
So this is an area where Trump thinks he is retaliating against the State of New York, but I think the political will, the bipartisan political will here is gonna stand up to Trump along with the courts, so I feel pretty good about it.
Thomas: I’m still so confused about this retaliation. Could this be a Bloomberg thing?
Thomas: I know he’s pretty mad about Bloomberg these days.
Andrew: You know, I don’t think we need to go very far to list the grudges that Donald Trump has against the State of New York.
Andrew: I will just point out that this is how far we have come in the era of Donald Trump.
Andrew: Let’s go back to the-
Thomas: We all know there’s zero rational basis for this.
Andrew: [Laughs] Yeah.
Thomas: It’s just which ridiculous grudge, which personal grudge is this.
Andrew: But look, let’s go back to the disqualifying Chris Christie Bridgegate scandal.
Andrew: The idea that the governor of New Jersey would orchestrate a traffic jam to punish his political enemies was enough to – and should be, by the way!
Andrew: I’m not saying OA endorses Chris Christie for President.
Thomas: Should’ve been a bigger deal.
Andrew: Yeah, absolutely, should have been a bigger deal. The idea that now we sort of shrug that off, yeah obviously Donald Trump wants to stick it to New York in exchange for passing a bill that makes life marginally less horrible for those lacking legal immigration status.
By the way, we can talk about other personal motives which I think are certainly there. I think the larger environment is New York very publicly passed this Green Light Act and Donald Trump is trying to say “hey, if you’re not playing ball with my anti-immigration administration we’re gonna punish you.”
Andrew: That’s what this seems to be. We also have – we cannot. I have to mention it but we can’t analyze it because as of – literally as of the time of this recording I’ve had multiple folks trying to track this down. There is a New York Times report that Attorney General Bill Barr has sent out a directive across the Department of Justice that any investigation of any Presidential candidate now has to be signed off from his office.
Andrew: Not surprising if true, distressing if true, but so far as of this recording we just have the New York Times report saying they have the memo. I cannot find that memo, it has not been made public at least as of this recording. So we can’t analyze it, we can’t break it down.
Thomas: Jeez, keep an eye on that though.
Andrew: Yeah, the Republican Senate, 52 of 53, just handed this President a blank check and said – a moral blank check and said nope!
Thomas: Yeah. A Monopoly get out of jail free card, essentially.
Andrew: Get out of jail free and do not put this card back in the deck.
Andrew: If you thought it was bad now, it’s going to get way worse. That’s part of what we’re here, is to help understand and empower. I will say if there are folks who are involved, I don’t have the legal expertise to file the initial lawsuits but believe me if there are organizations that file the lawsuit to challenge this DHS letter I am happy to donate my time to them pro bono. I’ve made that offer in the past and will continue to when we have this administration breaking the law. If I can help on that in a professional capacity don’t hesitate to take me up on that.
Thomas: Yeah, me too. I can type or something.
Andrew: Absolutely! There are things, you don’t have to be a lawyer to help out.
Thomas: Save the file? I dunno. Make a PDF of it?
Thomas: Basic office stuff, I guess.
Andrew: [Laughing] You could probably do a better job than the Iowa Democratic Party.
Thomas: If you have four competing legal strategies I can narrow it down to two.
Andrew: There you go! That’s excellent! [Laughs]
Thomas: With a 54.9% chance of narrowing it down to one! [Laughs]
Andrew: Oh, and one more point on retaliation. Again, can’t comment because this is so far just one source, but breaking across my desk Yahoo News-
Andrew: The U.S. Treasury Department has complied (this time as opposed to withholding all records as privileged) with Republican Senators request for sensitive and closely held financial records about Hunter Biden –
Andrew: -and has turned over (quote) “evidence of questionable origin” to those Republican Senators. So yeah, be prepared for the Republican Senate, which lacks this kind of oversight power, to engage in a whole bunch of nonsense that is tightly coordinated with the White House and Sean Hannity. It’s gonna be ugly, folks!
Thomas: Yeah, and-
Andrew: It is gonna be ugly and all we can do is be there with the truth. Sorry, go ahead, I didn’t mean to.
Thomas: And fewer people than ever to try to stop him. We know from the first, I dunno, year of his presidency he would have violated far more laws and ethics and norms had there not been people in the room stopping him. Now there are fewer people in the room. [Laughs] Just nobody’s in the room ‘cuz he’s indirectly fired everybody, had somebody else fire everybody or tweeted that they were fired. Who knows?
It’s funny, funny in the worst way, that we’re all sitting here wondering what illegal thing is he gonna do to get back at Mitt Romney now? What absolutely impeachable thing is he gonna do? We’ll see, stay tuned.
Andrew: [Sighs] We can move on, we’re both saying the same thing. But the fact that Republicans expect and want and will be cheering that on should terrify you. I say this not because we’re not mad enough at Republicans, but because – and this kind of bookends from the beginning of the show. The temptation to want to do that when Democrats are back in power will be strong, these norms will be eroded and it’s going to require- I’m not suggesting that there aren’t areas where we don’t play constitutional hardball, but I wanna draw a line in the sand and say we do have to be better than this in terms of personal advantage and personal aggrandizement of the office of the President when it is President Pete Buttigieg or President Bernie Sanders, or hopefully President Elizabeth Warren.
Thomas: Alright, well I think it’s time to thank our new patrons here at First Timer Friday on patreon.com/law. What do you think?
Andrew: I love that, let’s do it.
Thomas: Alright well I’ll go first and I will add anyone who’s a patron or wants to join up at patreon.com/law, if you have any clarifying questions for Andrew about anything we talked about today, pop it on the Patreon feed under where the episode goes up, there’s the place you can comment. Same as the patron Q&A, you can heart other people’s questions but please do that.
[Patron Shout Outs]
Andrew: Thank you so much! If you wanna get a shout out, if you like what we’ve been doing, head on over, patreon.com/law, sign up, give us as little as a buck an episode and you can participate in all the goodies that Thomas has talked about. It really, really does help in terms of us being able to continue to get the show to you and put in the amount of time that we do.
Thomas: Alright and now it’s time for T3BE, Thomas Takes the Bar Exam!
T3BE – Question
Thomas: Here we go! On a roll I think, right?
Andrew: You are not only on a roll, which is 100% true, you have gotten five correct in a row.
Andrew: But since switching over to the new questions, what do you think your rate is?
Thomas: I think I’ve only missed, I wanna say, two?
Andrew: [Laughs] I was hoping, but yeah, you’re 8 for 11.
Thomas: Yeah, okay!
Andrew: So this is a really fantastic long term-
Thomas: Well this book is better. It has more accurate law.
Andrew: It’s more realistic, yeah, absolutely.
Andrew: The other one was put out by the, you know-
Thomas: It was from the 70s, I dunno.
Andrew: It was actually put out by the National Conference of Bar Examiners, but it’s okay, it’s okay.
Thomas: So is this one, like, the book is called “questions to ask your kid if you’re a lawyer to get them interested in law?”
Andrew: [Laughs] It’s the – have you seen The Bar Exam for Dummies? This is the cliff notes version of that.
Thomas: It’s like the PSAT or whatever?
Andrew: No no no, this is also-
Thomas: It’s real, it’s real.
Andrew: I don’t wanna give it away, but this is a real and valid source, this is the best source for realistic multi-State bar exam questions and you’re doing great.
Thomas: And I’m nailing it!
Thomas: Okay, time to get this one wrong. Here we go! [Laughs]
Andrew: [Laughs] Here we go! Torts question for you.
Before the close of evidence in a federal negligence trial, the defendant submitted a proposed jury instruction on contributory negligence.
Thomas: Oh god. These ones.
Andrew: Before instructing the jury, the judge informed the parties of the instructions that she would give, which did not include the defendant’s proposed contributory negligence instruction but did include the court’s own instruction on contributory negligence.
Andrew: Neither party objected, either then or after the judge gave the instructions. The jury returned a verdict for the plaintiff, and the judge entered judgement on that verdict. The defendant, you might suspect, would like to appeal the verdict on the ground that the judge should have instructed the jury using the defendant’s proposed instruction on contributory negligence.
Andrew: So, has the defendant preserved the issue for appeal?
Thomas: Oh my gosh! I love this!
Andrew: Yeah, so actually a curveball.
Andrew: This turns out to be a civ-pro question.
Thomas: It’s not really about, yeah, jury instructions.
Andrew: It’s not about the standards at all.
Andrew: So it’s about, is it preserved for appeal? A) No, because the defendant failed to object after the judge gave the instructions to the jury.
Andrew: B) No, because the defendant failed to object after the judge informed the parties of the instructions that she would give.
Andrew: C) Yes, because the defendant submitted a proposed instruction on contributory negligence; or D) Yes, because the judge’s failure to give the defendant’s contributory negligence instruction amounted to a ruling on the instruction.
Thomas: Okay, so I do remember that one of the main reasons – well okay, let me not sound like an idiot. Part of the “objection, objection!” to a layperson we hear that and the show’s always do it wrong, that kind of thing. We’ve had many Law’d Awful Movies where they just say “objection” and they don’t even say what it is and nobody cares and they just ignore. But part of that process is, not only are you objecting to try to get the judge to hear what you have to say and side with you, but even if you don’t think the judge is gonna side with you, you object to preserve it in the record and then you’re able to go back and appeal on those bases. I do remember that.
So the question is, what’s going on here? Because I do think it maybe is a little interesting with the judge giving instructions. That kinda makes it a little bit different because the judge is talking to the jury, I feel like that’s sometimes treated a little differently from what I gather. I think that’s gonna differentiate between A and B, because I’m pretty sure this should be a “no” answer. I don’t believe that the defendant has preserved the issue for appeal. That question rests on whether or not merely submitting your own proposed jury instruction would be enough to preserve it for appeal.
That’s not impossible, but I don’t think that’s right. Who knows? Again, since it’s jury instruction this could be some special rule that I would just have to know but I’m not a lawyer so I don’t know it, it’s entirely possible, but I am going toward a “no” answer. Let’s go through them, because I do think you have to object somewhere to preserve it for appeal, that’s gonna be kinda my baseline assumption, that could totally be wrong, but under that assumption let’s see what we have here.
A, no because the defendant failed to object after the judge gave the instructions to the jury. So that’s certainly in the running. B, no, because the defendant failed to object after the judge informed the parties of the instructions she would give. Now I actually like that one better. I’ll go back to the A and B, so those are the “no” answers.
C, yes because the defendant submitted a proposed instruction on contributory negligence. Now I don’t think that’s right but I could see this being a one weird rule, where it’s like because it’s a jury instruction and you don’t really wanna mess – you don’t wanna shout “objection” while the judge is talking to the jury, that would be prejudicial maybe or something. Maybe there is some special rule that if you have submitted a proposed instruction that’s enough to preserve it for appeal? That could be true so I’ll say that’s my best “yes” answer. C is my best “yes” answer.
D, yes because the judge’s failure to give the defendant’s contributory negligence instruction amounted to a ruling on the instruction. That’s interesting. My first reaction was that that’s nonsense, that’s just a bad answer? But [Groans] if a judge has given a ruling on something does that automatically preserve it for appeal without an objection? Hmm. I dunno, I guess if D is right then I’m just so far off that I think I’ll go ahead and ignore that for now. That’ll just mean I totally don’t know, so I’m gonna rule out D.
Of the “no” answers I really like B better than A, because A was object right after the judge gave the instructions to the jury. I like B better because it’s objection after the judge informed the parties of the instruction she would give, I feel like that’s when you would want to object, I could be wrong but I just don’t think you wanna shout objection while the judge is talking to the jury. It just feels like a no no to me, I don’t know why. I could be completely wrong about this but I feel like the better “no” answer would be objecting after the judge informed the parties of the instructions.
Now … shoot! I’m gonna screw myself up because those “no” answers are close enough together that sometimes that means it’s a “yes” answer. If the two “no” answers you can’t really differentiate that well then sometimes that means, you know, it actually should be a “yes” answer so [Sighs] [Groans] I’m going with competing theories of law that I’m inventing in my head because I don’t actually know the law and right now I’m trying to decide between them.
I was initially leaning toward B, but now I could see a case for A, B, C, or D. No, I’m just kidding. [Laughs] The defendant submitted [Mumbles] proposed [Sighs] I, hmm. Is merely submitting a proposed instruction enough to preserve the issue for appeal? Could be. Maybe. I think you have to object, but maybe there’s a special rule about that?
D, yes because the judge’s failure to give the defendant’s contributory negligence instruction amounted to a ruling. So that would be the theory that you submitted the proposed instruction, the judge didn’t do it so that’s the same as the judge saying no, I’m not doing this, I’m ruling against it or something. Does merely that happening preserve it for appeal? So I’ve talked myself out of having any idea what the answer is so now I have to reset.
My initial gut reaction was B and since, I dunno, since I’m 8 of 11 on this new book maybe I should not try to outsmart myself. On the other hand! [Laughs]
Thomas: I really turn into Tevye when I’m doing these things. On the other hand? Maybe that means we’re due for a curveball! Maybe I’ve had too many fast balls right down the middle. We’re do for a slider or something, a curve or whatever, a changeup. A teaser for baseball law, maybe next week hopefull.
Alright, I’m gonna go back to my first instinct, I’m gonna say B, no because the defendant failed to object after the judge informed the parties of the instructions she would give. That feels like the best time to object, so under the theory that you do need to object to preserve it for appeal, I’m going with B but if that theory is wrong I could really see a case for C. My second chance I guess I’ll go B and C, that’s my New York Times endorsement level, but I’ll go with B, final answer.
Andrew: Alright! And if you would like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright. Will the streak keep going or is it going to end? I think it might end, we’ll see. Alright, thanks so much for listening folks, we love you.
Like I said if you’re a patron, you wanna get a question in, go to that question threat, or sorry, go to that episode thread on Patreon, submit a question, we’re gonna hopefully using that for something cool and otherwise we will see you on Deep Dive Tuesday.