Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 362. I’m Thomas Smith, that over there is Andrew Torrez. How are you doing, my friend?
Andrew: I am fantastic, Thomas, how are you? How was your trip?
Thomas: Oh my gosh!
Thomas: I am in a full body cast like in the movies, and always one leg is suspended at an angle, you know? In a sling.
Andrew: You’re wrapped all the way in white and they can feed you through the tube? Yeah.
Thomas: Yeah. The arm is always up and one leg is always up?
Thomas: That’s always how they do it. Yeah, that’s me after two kids at Disneyland and no sleep, ‘cuz you can’t sleep with kids in a hotel.
Thomas: That was the hardest thing I’ve ever done in my whole life, how ‘bout you?
Andrew: [Laughs] I have done that trip. With one child, not two, but still.
Thomas: Psh. Armature.
Andrew: The “no you must be standing here at the gates at 7:30 in the morning.” You know the park doesn’t open ‘til 10? “I know, but you can’t get the fastpass if you’re, yeah. So happy Disney. Yeah, I am actually in Boston, debate tournament for my son and then we went on a couple of different college visits, so yeah, that’s my story.
Thomas: Good times.
Andrew: Yeah, he really enjoyed going to Brown yesterday.
Thomas: Oh, nice.
Andrew: We’ll see. Right [Laughs]
Thomas: We’ll have to do, we’ll track. It’ll be like the election coverage except for “which college is Alex gonna choose?” It’ll be a recurring segment on the show.
Andrew: Oh, can you create some music for that?
Thomas: [Laughing] Yeah! [Dun dun dun]
Thomas: Exactly! Okay. Hey, other quick thing, go check out the YouTube channel, the link’s in the show notes or just google “opening arguments” on YouTube or whatever. The latest video, it’s so much fun. It features a Trump impression, it features some fun parent trap hijinks.
Thomas: It’s all kinds of fun and informative and particularly good for today’s show in which we talk about Roger Stone actually getting sentenced! Hot off the presses! So please check that out, really appreciate it.
Alright, what else are we teasing, Andrew?
Andrew: Yeah! So teasing a couple of things. Number one, we got a very, very good decision from the 11th Circuit on the Florida Amendment 4 to the State Constitution which restores voting rights for felons.
Thomas: Oh, yeah.
Andrew: And then the subsequent legislation to (quote) “implement that” that was passed by the Republican legislature, which completely undercut it. That was challenged in court, we have a great ruling, I’m gonna break that down for you on Tuesday’s show, and we also have an Andrew Was Wrong?
Well, I was definitely wrong about two things, but we heard back. Whenever we do an episode on emoluments we typically will hear from our buddy and originalist and one of the first show guests, Seth Barrett Tillman who has an idiosyncratic, to put it mildly, and I think he accepts that, we’re not insulting him in any way, tracks everything we say on emoluments, listens to the show, hi Seth! And managed to correct two things? But I’m gonna push back on a third thing he said.
Thomas: In dispute? Okay.
Andrew: Yeah, so we’re gonna do that on Tuesday, that’s gonna be a lot of fun, and then [Sighs] folks have asked about – can we start a recurring segment? Today, as we are recording, the news broke that Donald Trump is going to appoint Richard Grenell, the ambassador to Germany, as the (quote) “acting” Director of National Intelligence.
Andrew: Which means that he will not require approval by the Senate because he would not get approval of the Senate, and like Mick Mulvaney he can just stay. So literally, our Acting Director of National Intelligence will also be our ambassador to Germany.
Andrew: Yeah, well why not? I am sure Director of National Intelligence is a part-time gig.
Andrew: This is … again.
Thomas: Just come in on weekends and kinda knock that one out.
Andrew: Yeah! Pfft, why not? Look, if I can be a lawyer and a podcaster, surely Richard Granell, with zero relevant experience in either, by the way, can be ambassador to Germany and our nation’s Director of National Intelligence.
Thomas: I just … the entire cabinet, every level of government is all “acting” now?
Thomas: It’s an amazing amount of actors. They’re gonna be able to put on a hell of an Oklahoma, or something.
Thomas: It a giant ensemble cast of acting, whatever. Director. Acting this, acting that.
Andrew: You could not, as long as we’re there – I would rather have Quentin Tarantino staff the executive department than Donald Trump.
Andrew: You know, look admittedly, you know, Brad Pitt will be doing a couple of different jobs.
Andrew: It’ll be rough. Uma Thurman will probably be Secretary of State, but you know, I’m good with that.
Thomas: I’ll hire her for whatever!
Andrew: [Laughing] Yeah, exactly.
Thomas: Whatever job she wants.
Andrew: Exactly right. No, this is – the only reason we’re doing this in the teasing segment is because folks have asked “is this designed to put a crony in place to squelch future whistleblowers?” and the answer is yes.
Andrew: There is no other reason to do this.
Thomas: [Laughs] Yeah. Okay. Case closed!
Andrew: It’s a case closed and again it puts lie to the confidence that I had in folks like Richard Burr, in Republicans who claim to care about the security and health of our country, because if you did you should speak out against this, and they won’t, and they don’t, and they’re not going to because [Sighs] they are all beholden to somebody who’s – we’re not two-weeks out from being acquitted on impeachment and is remaking the government in ways that are frightening even for Donald Trump. Nothing we can analyze on that! It’s just terrible and you need to know.
Thomas: Okay, well… however, Pirates of Penzance, comin’ at you!
Thomas: The entire acting casts of the whole government, putting that on shortly.
Andrew: I liked Oklahoma! [Laughs]
Thomas: [Laughing] It’s a rotating season, ‘cuz they have so much talent!
Andrew: Surrey with the fringe on top, there we go.
Thomas: Yeah, they’re able to do multiple shows, it’s one of those repertory thing, where they do Fridays one show, Saturdays another. So there’s lots coming at you with all those actors. Okay, finally time to get to our main segments of the day!
Thomas: Okay, Andrew, what in the world are the Nevada caucuses?
Thomas: Give us a …
Andrew: Yeah! We had a lively and, in my view, by far the best Democratic debate yesterday.
Thomas: [Laughs] Yeah! If anybody said – because after every debate they’re like “psh, boring.” If anybody says this debate was boring, just stop watching debates. Clearly you’re not interested-
Andrew: Yeah! [Laughs]
Thomas: -in anything debates could possibly have to offer so just quit. This was not a boring debate! [Laughs]
Andrew: This is like watching one of those, like, 61 to 57 football games and being like “yeah, you know, there’s not enough action going on.” Like at that point you just don’t like football. And that’s fine!
Thomas: [Laughs] Yeah!
Andrew: You don’t have to like football, you don’t have to like debates, but…
Thomas: Is it Futurama where they do, like, The Scary Door? It’s like 900 twists in a row, it’s like “also is your mom!” [Singing] and Bender’s like “saw it coming.” It’s like that!
Andrew: I love The Scary Door, it’s such a great bit.
Thomas: The Scary Door, it’s so great.
Andrew: Anyway, so I imagine you will probably be breaking that down on Serious Inquiries Only, but there are a couple of, I think, really interesting questions because the way in which Nevada has structured their caucuses this year is different from the past. A component is still the bad stuff from Iowa, which is to say – it’s actually even worse in that the caucuses begin at 10 am on Saturday, February 22nd.
Thomas: Wow. But it’s on a Saturday, though!
Andrew: It is, but think about how much, particularly proportionately, of the State’s workforce are engaged in the hospitality industry.
Thomas: Oh true. Yeah.
Andrew: Right, so they work for casinos, they work for restaurants, and so Saturday at 10 is a super bad time for those kinds of folks. Also, for whatever reason, the doors open at 10 but the voting doesn’t start ‘til noon? It’s like Iowa on steroids.
Thomas: Gotta get situated.
Andrew: [Laughs] Right?
Thomas: Hold on, let’s hold off- that’s a hell of a charge there, Andrew.
Andrew: Well in terms of time commitment, sorry.
Thomas: Okay, but … [Laughs] What was the biggest train wreck? Let’s hold off on calling them Iowa until they give us the results!
Andrew: [Laughs] Well, and there are some things to talk about with respect to that, but the first thing that I wanna talk about is, on top of the standing in a room stuff, for the first time Nevada has layered ranked-choice voting and multiple days of voting in with the caucus process. It’s gonna be super interesting to see how that works out.
Andrew: So let’s flag, right now, on a show that people are gonna listen to on a Friday and then turn in for results, you know, the next day? I could see this being a gigantic disaster as you are segregating out votes in various precincts that are ranked-choice.
Thomas: Oh it’s ranked choice as well?
Andrew: It is.
Thomas: Oh I missed that, okay.
Andrew: So I get to go in and say “number one choice, Liz Warren, number two choice Michael Bloomberg, number three choice, Joe Biden.”
Andrew: I’m obviously drawing these out of a hat.
Thomas: [Laughs] I wanna know who’s number one choice is Warren and who’s number one choice is Bloomberg!
Thomas: Is that like an old thing where maybe their number one choice was Bloomberg so they go by some Samurai code, like whoever kills your master-
Andrew: [Laughs] Exactly!
Thomas: Then they become your number one choice?
Andrew: Yeah, exactly right! [Laughs] That would be the only explanation-
Thomas: It’s the only way. Well I wanna support Bloomberg, but rules are rules!
Thomas: He was executed by Warren so she’s now my vote.
Andrew: [Laughs] Exactly right! But yes, the initial ballots are ranked-choice ballots which will then be allocated over the 15% threshold-
Andrew: In each caucus site.
Andrew: Yeah, and then added together.
Thomas: The spreadsheet-data guy in me is like “I love it.” I wanna go, how do I become a caucus worker? We don’t have one in California but, like, that sounds so fun but also a potential disaster.
Thomas: And I’m now kinda with you that this is not gonna work. [Laughs]
Andrew: And Nevada has tossed into the trash the third-party app-
Thomas: Oh, yeah. Good.
Andrew: -developed by Shadow, Inc. used in Iowa that was such a disaster. They are now using what State precinct workers are calling an “iPad-based calculator tool.” That’s a direct quote.
Thomas: [Inhales] Eeeeh.
Andrew: Which is, this is another direct quote from the Nevada Independent. (Quote) “Essentially a google-form page, linked to a google sheets spreadsheet.”
Andrew: The idea is that precinct chairs can input their precinct’s caucus preferences into the form and then they will get sorted and tallied in the spreadsheet.
Thomas: Okay, okay. I know people probably are thinking that sounds scary. Like, oh you’re just – but however, that could totally 100% work and be fine.
Andrew: Yeah! Look-
Thomas: Or, it won’t work. [Laughs] Or if they mess it up or something then it won’t.
Andrew: You know, as we’re talking about technology, remember the previous method for this was dumping a bunch of paper in a box.
Andrew: We’re not talking about going from an automobile to the horse and buggy era, we’re talking about did you walk there or would you like some form of wheeled locomotion to assist you? So that’s the structure, we will see what happens and you and I will not get to see! [Laughs]
Thomas: I’ll tell you this, a lot of gambling propositions, sports betting, all that stuff, a lot of that stuff is a lot of really complicated if/then stuff, you know.
Thomas: And maybe, maybe Nevadans, to stereotype, have got the know-how to do complex multi-phase voting, ranked voting, maybe they’ll pull it off!
Andrew: Maybe. So, look, this is what I hope happens and I want to flag the potential difficulties A, so that that way we’re out in front calling if there’s a problem; B, we identify, again for our conspiracy-theory-minded listeners that this is entirely different. The issues are literally designed not to be the same issues from Iowa. They have gotten rid of everything that was the problem in Iowa, so if there’s a problem in Nevada we’re trying to help identify where that might be-
Thomas: It’ll be a different thing, you’re saying.
Andrew: It has to be, by definition.
Andrew: No app, different individuals counting the votes, google-based calculator, so you know, if something goes wrong I’m sure we’ll see that next raft of conspiracy theories.
Andrew: But if it goes right, this tells us that you can implement a pretty complex system in a way that makes a lot of sense. I don’t know why you would keep – so slight sidebar, in addition to ranked-choice voting, the way in which it works in Nevada is it is 4-days of early ranked-choice voting.
Andrew: Starting from last Saturday and ending this past Tuesday. So to me, this seems like really as close to – I dunno why you have to do the whole caucus part.
Thomas: I was just gonna say! I was waiting to punch in and say why is this a caucus? Because in the caucus you’re hanging around the gym, or whatever, your kid’s gym or whatever where it takes place, you’ve got the taped-off sections, you’re like, “we’re the Bloomberg section,” “we’re the Warren section.”
Oh, you don’t have viability, come over here and there’s the debate, but then you introduce this early voting, this voting from abroad, all kinds of different stuff they’re doing which is great, but then it’s ranked choice so the preferences are already locked in. What’s the point? Nobody can convince a piece of paper to change its vote! [Laughs] Hopefully. So what’s the point of the caucus part? Just do a ranked-choice primary system.
Andrew: Yeah. So you still can. Essentially now you get to choose as a voter.
Thomas: Yeah, whoever’s there can.
Andrew: Whoever’s there. So you can essentially say oh, either I can be persuaded or I can’t. We should also add, I just wanna be clear and I don’t wanna get 100 Andrew Was Wrong emails. Mike Bloomberg is not on the Nevada ballot.
Thomas: Oh, yeah. Good call.
Andrew: We know this, we’re aware, I was trying to use the most preposterous ranked-choice.
Thomas: I’ll come clean, I totally forgot, but yeah yeah yeah.
Thomas: Andrew knew.
Andrew: He is not, we know that, we were making a hypothetical example. So it will be very, very interesting. It certainly – the fact that over 70,000 early RCV ballots have already been recorded means that when you are interpreting the results of last night’s debate, that, I would think, would be muted in any outcome.
Andrew: And, you know, obviously that’s disappointment for me as a big Liz Warren fan, let’s be completely transparent about that. Amy Klobuchar got an enormous bump out of what was, objectively speaking, a good debate performance and then hailed in the media as a good debate performance going into New Hampshire. At this point I would say it is very, very critical that Elizabeth Warren outperform expectations in Nevada. I’m not gonna do any more political punditry than that because this isn’t a punditry show, this is a law show, but you know, there is no sense. I’m not gonna sit here and pretend as though I don’t care about the outcomes, because folks listening to the show A, know that I do and B, I think deserve me being honest about the fact that I do.
So those are the Nevada caucuses. Really, really interesting mix up of RCV plus traditional caucus-going and I think, if we can back away from the emotion behind it, we’re trying out things that are designed to make the process more democratic and maybe there is an objective lesson that we’ll be able to pull away from the caucuses. That’s the Optimist Prime in me.
Thomas: I’d imagine that the caucus is gonna be like, there’s one guy who’s like “Ah! I’m gonna go convince some people!” and then he just shows up in the gym and it’s just him?
Thomas: Then everybody else did early voting, and he’s like what? [Sighs] I’ll go in the … Bernie section.
Andrew: That is [Laughs] have you ever seen the fantastic Val Kilmer movie A Real Genius?
Thomas: Oh, I haven’t actually.
Andrew: Ah, it’s such a good movie!
Thomas: I’ve heard good things, though.
Andrew: It’s really, really good and anyway, as part of it, because it’s an ’80s movie so there are montages and as part of the kid who’s like 13 and in college at what’s supposed to be MIT where they’re secretly building a death laser, the kid is going to class and you see in the montage over time that the other kids in the class are replaced by 1980s tape recorders, which is always delightful technology.
Andrew: Then the last scene is everybody in the class except Mitch is a tape recorder and the professor has a little post-it that says “please hit start on this tape recorder to start the lecture.”
Thomas: Yeah. [Laughs]
Andrew: So it’s tapes playing to other tapes.
Thomas: Yeah, it’ll be like that.
Andrew: Exactly. So anyway, that’s our future, it’s one Mitch in a caucus with everything else is pre-recorded and you can’t persuade anybody.
Thomas: Alright. Well I’m very curious to see how this caucus-process goes.
Andrew: Me too!
Thomas: So did you say it starts Saturday or is it all the whole thing?
Andrew: Yeah, it’ll be over-
Thomas: When do we have results?
Andrew: Yeah, Saturday afternoon.
Thomas: Saturday night?
Thomas: Oh, okay. Cool! Alright we’ll see how that all goes, could be fine.
Thomas: It’s not calculus, it’s arithmetic. It’s if/then statements essentially, that too. Could be done. Alright, let’s get on to our main segment today.
Roger Stone Sentencing
Thomas: Well I suppose this is a gateway drug to our main segment.
Thomas: Which is to, if you haven’t seen the news this was, what, just mere hours before our reporting?
Thomas: Roger Stone? Minutes, oh wow! This just in [Sings intro music] Roger Stone sentenced and, from memory, he got 40 months, right?
Andrew: 40 months, that is correct.
Thomas: 40 months.
Andrew: That is a downward variance from the guidelines by Judge Amy Berman Jackson, and if I can read between the lines a little bit here, that is 100% designed to test Donald Trump at this point in time. In a way, he’s already won.
Andrew: If this defendant were not Roger Stone, were not a Trump crony, and the croniest of Trump cronies-
Andrew: If this were not Roger Stone he would have received a guideline sentence of 7-9 years. It would have been quiet and the criminal defense lawyer would be making all the statements that pro-Stone advocates are saying and it wouldn’t matter. You get guidelines, that’s what happens. I do wanna add, by the way, just as a quick little sidebar on that.
Two points, I have made both of these in prior shows but they’re worth repeating again, and particularly from liberal media sources, and that is number one that defense attorneys will tell you that the guidelines are voluntary, that is true since the Supreme Court’s 2005 Booker and Fanfan cases, but they are presumptive in virtually every case and in 99+% of all cases you get a guideline sentence. So you can say they’re not binding, they’re just advisory, and that’s what every defense attorney says, that’s what my buddies who are defense attorneys say. You try and it never hurts to ask, but let’s not pretend as though most sentences are not guideline sentences, they are.
Number two, this is super weird but I have noticed this construction in a bunch of sources where they say well, and in addition to the guidelines, let’s consider the fact that Roger Stone is 67 and he’s old and he’s never been convicted of anything-
Thomas: That’s in the guidelines, isn’t it?
Andrew: It’s in the guidelines! Yes!
Thomas: It’s in the guidelines! So if he were young and convicted of many things in his past then the guideline would have been more, right?
Andrew: Yeah, he would’ve been in a different column.
Andrew: That is infuriating to me because these outlets ought to know better. So Roger Stone has already won-
Andrew: -by being a crony of Donald Trump, and now the analysis is going to shift to whether – and the Negatron in me predicts that by the time this show airs we will probably get direction from the President that he’s going to pardon Roger Stone. It makes it harder to make that argument, he’s getting three and a third years when he should be betting 9, so-
Thomas: So you think that was the judge calculating, alright, well maybe if we go lighter than he’ll actually serve some time? Because honestly if he actually served the three-whatever years that the math is, three and a half I guess?
Andrew: It’s three and a third, yeah.
Thomas: Yeah, then if he actually served that that wouldn’t be the worst thing in the world, but I don’t know that he’s gonna serve a minute of that, is he?
Andrew: Yeah. And I think that is the case, and I think that’s the case for a couple of reasons. The first is that there is no legal reason to have departed downward in the sense that when you appeal a sentence that is imposed by a judge, that is reviewed both procedurally, did they do something that violates your rights in the process of computing the sentence, did they take into account a factor that the court ought not to have been aware of? Was the court aware of it because it was from evidence that was suppressed or something like that. That’s nothing in this case.
Then they review the sentence as a substantive matter, in light of § 3553(a) which we’ve talked about, which is in general is this a fair sentence? Guideline sentences are presumptively fair, so it is incredibly rare, I cannot think of an example – I’m sure there are, because there thousands of cases in which this gets appealed, but I don’t know of one in which a guideline sentence was handed down by a judge and with no other issues, with no other shenanigans an appellate court said “well yeah, but in this case that does not meet the factors for a fair sentencing.” Judges have a tremendous amount of discretion, and when they do so, when they award a sentence that is within the guidelines range it gets upheld.
So she didn’t have to do this to protect herself from being reversed by the D.C. Circuit.
Thomas: From appeal? Yeah.
Andrew: It is to counter the argument of “this is harsh and this is unfair,” compared to – and the locus of analysis for that substantive point will be compared to other people who get convicted and sentenced for obstruction of justice. The problem with that is very few other people are Roger Stone! [Laughs]
Andrew: This is not just garden-variety obstruction of justice, this is obstruction of justice of actions by the President of the United States, so I think it would be incredibly difficult to argue that this sentence, particularly the lighter sentence now, is substantively unfair and we’ll have to see how it plays out in the court of public opinion.
The other thing that picks up on something we’ve talked about on this show that’s worth pointing out to our listeners, I pointed out Judge Jackson here had wide ranging powers to order the DOJ to produce evidence or answer questions or explain the resignation of the four prosecutors that filed the initial sentencing memorandum? Judge Jackson put those questions to Thomas Crabb who was the unfortunate soul who was tasked with arguing this case after all of the prosecutors quit – and I’m proud, by the way, that we highlighted Crabb not as a flunky or flack or somebody who’s in on the conspiracy with Bill Barr, but just as a guy.
Andrew: Just as somebody tryin’ to do their job, and you saw that in this sentencing hearing. Crabb immediately did what any lawyer would do – again, I say what any lawyer would do given this situation. No lawyer should have the situation of hey, we filed a sentencing memorandum on Monday that we withdrew on Tuesday.
Andrew: But the minute that Judge Jackson expressed any kind of displeasure, questions over that process, Crabb kinda backed away and said oh yeah, no, look, you are within your rights to impose a sentence within the guidelines. Essentially did not defend that supplemental memo.
Then while not asking or requiring the DOJ to produce documents or otherwise holding up the release of the four attorneys that resigned from the case, Judge Jackson did ask exactly how this process unfolded. Crabb answered until he refused to answer. [Chuckles]
Thomas: Hmm. [Laughs]
Andrew: He confirmed that that first memorandum was, in fact, sent to Bill Barr, which is something that the White House has lied about.
Andrew: Then said-
Thomas: We got him!
Thomas: Oh, that doesn’t matter?
Andrew: Then said “all I can say is that there was a miscommunication in terms of what was expected,” then Judge Jackson, as a very good lawyer and a very good judge said “oh, well tell us about that miscommunication.” Then he said “I wasn’t involved with that, I can’t confirm, I can’t get into it.”
Thomas: [Laughs] It turned into a deposition of the –
Andrew: It really did for a couple of questions and then ultimately Crabb, you know, refused to answer the real probing follow-up questions, in particular the question I really am happy that Judge Jackson asked which was, “hey, did you write this memo?” The supplemental memo, to which Crabb says “I’m not at liberty to discuss the internal process.”
Andrew: Which means he did not write the memo.
Andrew: That’s 100%, that means Bill Barr or one of his flunkies wrote the memo and then Crabb looked at it and they were like look, we’ve gotta get somebody to sign off on this, Tom, you willing to sign off? And he said [Sighs] Yeah, yeah. I’ll sign off. So that’s what we got out of this process, and like I said, I think by the time we go to press that we will probably be looking at a presidential pardon for Roger Stone, which that’s my clumsy way of trying to tee up the main segment.
Thomas: Oooh! Well, consider it teed, but also we’ve gotta take a quick break!
Pardons and Commutations
[Commercial – policygenius.com]
Thomas: Alright Andrew, I know you’re not a golfer but why don’t you go ahead and take a swing at the ball you’ve teed up for our main segment!
Thomas: Pardons and commutations, which sounds like a good old timey greeting. [Impersonation] Andrew! Pardons and commutations to you, sir!
Andrew: [Laughing] Pardons and commutations to you, Thomas.
Thomas: [Impersonation] Thank you! To you and yours, pardons and commutations! Yeah, so why don’t you tell us about the horrible miscarriage of justice that’s about to happen as Trump pardons his crony, who he already got an extremely light sentence for?
Andrew: Yeah, I want to tell the story here about the end of the noble pardon power in U.S. history. Look, it’s easy to put that in capital letters and we inveigh against Trump all the time or whatever. This is, and it’s not 100% Donald Trump’s fault, we should mention that.
Thomas: Yeah, we should kick Bill Clinton in the groin-
Thomas: Every day, because he partied- [Laughs] Partied. Could be both. He pardoned his buddy right at the end of his term, right?
Andrew: Yeah, January 20, 2001, literally as he’s walking out the door.
Andrew: I wanna talk about all that, I wanna talk about the history and the founders and everything, so let’s start with that. Pardons and commutations are governed by Article 2, Section 2, Clause 1 of the Constitution, which says the President (quote) “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” So let’s break that down a little bit.
Reprieves are what we now call commutations. That leaves a conviction in tact but shortens or wipes out the sentence. That is as broad as you want to be. In other words, if a court says we are gonna sentence Thomas Smith to 17 years in prison-
Andrew: And I am the President I can say I’m gonna commute all but 304 days of your sentence.
Thomas: If that ever happens I’m gonna change all my views on this miscarriage of justice.
Andrew: [Laughs] Yeah!
Thomas: Yes, please commute my sentence.
Andrew: Yeah, serve your 304 days though, and how do I come up with 304 days? Don’t have to tell you, I’m the President.
Thomas: Yeah, doesn’t matter.
Andrew: I could commute all but, I could say “17 years is a lot for Thomas Smith for his crimes against the United States so I’m gonna commute 2 days off of that sentence.” I could do that too, just to be a jerk, I can do whatever I want as the President in terms of granting reprieves, that is commuting your sentence while leaving it intact.
Thomas: But you can’t, like, lengthen my sentence?
Andrew: No, I cannot lengthen your sentence.
Thomas: Okay, good.
Andrew: I can shorten it.
Thomas: I commute you to negative 500 days, added to your thing.
Andrew: Do not give Donald Trump any ideas.
Andrew: I am sure-
Thomas: What I meant to say is I shorten your sentence by negative 500.
Andrew: I’m sure we have originalists plus math geeks out there that are the-
Andrew: The intersection of that Venn diagram. Math geeks, originalist, Trump supporters, right in that middle third that are gonna say well, look, yeah, you can absolutely subtract a negative number from someone’s sentence.
Andrew: So let’s not plant that idea in anyone’s head.
Thomas: Can’t give them any ideas, okay.
Andrew: Yeah. So pardons, on the other hand, as we’ve talked about on this show on multiple occasions, that wipes out the crime. Generally speaking, with the asterisk, you have to acknowledge your guilt but once you acknowledge your guilt and you accept the pardon the offense goes away. It was like you were never convicted of a crime in the first place. Put a pin in that one because that’s gonna be important.
Now, the language of the Constitution comes directly from Federalist No. 74. As always, when we go back to The Federalist Papers, the delightful naivety of our founding fathers comes to mind. Here’s Alexander Hamilton in Federalist 74: “Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered. Criminal code of every country partakes so much of necessary severity that without easy access to exception in the favor of unfortunate guilt, justice would wear a countenance too cruel. On these accounts, one man appears to be the more eligible dispenser of the mercy of government rather than a body of men.”
Translating that from old timey-
Thomas: Yeah, I was gonna say-
Thomas: Just tell me what you’re trying to say, man! I don’t need you to – just come out and say it! What was all this nonsense?
Andrew: So in the 18th Century, the idea was that the law went to great lengths to talk about how to punish people, but there were no provisions in the law for things like parole or mitigating factors.
Andrew: It was super easy to say this is how we want to punish you, so then the question was, well what about the fact that sometimes we think, the law might specifically say something, but sometimes we feel like, you know, the circumstances of this particular offense don’t seem to justify that.
Thomas: Yeah, I’ve seen Les Mis.
Thomas: It was all him stealing a mouthful of bread and then lifetime sentence, I get it.
Andrew: Exactly right. So then what they debated at the founding of the Constitution was whether that should be something that the legislature does or some other commission, some other branch of government, or whether that power should go to the President and they argued that it should go to the President for a bunch of different reasons, but really primarily for the reason of being merciful.
Andrew: So the President, who speaks on behalf of and represents the entire country could say yeah, I get it, in general we don’t want people to steal, but this person was stealing a loaf of bread to feed their family so I am going to grant a reprieve or an outright pardon.
Thomas: Hmm. Yes, Roger Stone was stealing a mouthful of obstruction and lying to investigators and threatening a witness to feed his family.
Andrew: There was also, and I found this really interesting going back to reread Federalist 74 which I haven’t read in, you know, an awful long time.
Thomas: Oh yeah, it’s been a long time.
Andrew: [Laughs] Kind of an argument, a plea bargaining style argument in there. Again, remember, convening the legislature back in 1789 meant a month. You had to tape a message to the foot of a crow and send it off.
Andrew: Here’s what it says: “There are often critical moments were a well-timed offer of pardon to the insurgence or rebels” and put a pin in that one that I’m gonna pull out in a second, “may restore the tranquility of the commonwealth and which, if it is suffered to pass unimproved it may never possible be afterwards to recall. The dilatory process of convening the legislature or one of its branches for the purpose of obtaining its sanction would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour may sometimes be fatal.”
So pretty straightforward argument. Like, look, it takes a long time to get Congress together. That’s still true today even though less so than in 1789. The idea was yeah, there might be a good reason to want to pardon somebody right now in order to obtain benefits to the entire country.
You might have noticed, I told you to put a pin on “insurgents or rebels.”
Andrew: That is because the only real argument about the scope of the presidential pardoning power was whether the pardon would be available to extend to those who were convicted of treason or sedition against the country. This is really important to understand. There were no debates on limiting the pardoning power with respect to the President’s buddies or with respect to himself.
Andrew: The only question at the time of ratification of the Constitution was should the President have the absolute power to pardon folks who have been convicted of the crime of treason? That argument there, the expediency argument was yeah, we should give him that power as well. So from the nation’s inception we envisioned, our founding fathers envisioned, a broad, sweeping pardoning power in order to dispense mercy because it’s super easy to write laws to send people to jail, it’s super hard to take account of the conditions in which people ought not to be imprisoned. That was the thought process.
Andrew: A little bit of history before we get into the contemporary literature, which, you know, literature from less than a decade ago now seems quaint in light of the current inhabitant of the office.
Andrew: But [Laughing] before 1870 the primary way in which people got pardons is that they or their family members would walk into the President’s office.
Andrew: I’m 100% serious about that.
Thomas: Just stroll in! Oh, how’s it going? There’s a little bell on his desk. Ding!
Andrew: Yeah, ring bell for service.
Thomas: Hi, I’m President uh, we’ll just – I’m John Quincy Adams, what can I do you for?
Andrew: Yeah! Apparently yeah, you would just walk in and be like hey, is John around because I’d like to chat with him for a minute and I guess they didn’t have secretaries in 1789? This is from a law review article, I’m gonna discuss it in some length later.
Margaret Colgate Love’s “The Twilight of the Pardon Power,” in which she notes that while Lincoln’s military pardons are the stuff of legend, he also issued 331 clemency warrants to people convicted in the civilian courts. Attorney General Edward Bates, the embodiment of an emerging institutional impulse to manage the practice of pardoning, worked hard to control access to the President and keep track of those to whom he made promises.”
Andrew: The pardon clerk reported “my chief soon discovered that my most important duty was to keep all but the most deserving cases from coming before the kind Mr. Lincoln at all, since there was nothing harder for him to do than to put aside a prisoner’s application.”
So apparently Abraham Lincoln was just a big ol’ softy.
Thomas: Yeah. [Sighs] I love Abraham Lincoln!
Thomas: He really was a good President. Team of Rivals, read it, it’s the best.
Andrew: Oh it is, it’s a fantastic book. So pre-1870 you would just walk into the President’s office and go you know? This is really not fair. And again, part of the reason I went through that whole Federalist bit was because that’s the way our founding fathers envisioned it. They really, really thought that you would just go knock on the President’s door, plead your case, and if the President thought you deserved mercy he would say okay, we’re gonna pardon or commute your sentence now.
By 1870 that was a pretty unwieldy practice, so in 1870 the entire pardoning process was handed off to the Department of Justice, put in the hands of the Attorney General. The idea was that there would be created an office of the pardon attorney and that they would establish procedures and review cases and prepare recommendations from the Attorney General to the President after thoroughly vetting pardon cases. In other words, instead of being steered to the President you would now be steered to the Department of Justice which would put policies and procedures in place, review your cases, and then prepare recommendations. So that seems to make sense.
Beginning in about 1910 or so, with the various movements in this country, the rise of 20th Century progressivism, we started introducing alternative mechanisms into the prison system, including the parole process.
Andrew: So from 1910 to 1930 we started moving away from the idea that you should look at these cases on a case-by-case, who gets to come before the Attorney General. It seems like a matter of luck and access would control that, and so the socialists of the 1910s, the early progressivists, decided that they would push for legislative parole. That actually did serve as a counterweight to the commutation process. So President’s started commuting fewer and fewer people and instead, if you were in prison, you started being handled by the parole process.
It’s important to recognize there are different theoretical justifications, but behind those two systems. So pardoning was an act of mercy, we read that already. Parole, the idea was as we were debating various responsibilities and purposes behind punishment, the idea on parole was okay, if the primary utilitarian justification for putting somebody in prison is to rehabilitate them and allow them to be reintegrated into society then let’s do that review. Let’s see, are you rehabilitated? Have you demonstrated the kinds of things-
Andrew: And yeah, I know we said you were gonna get 10 years in jail, but if you can come out and be productive after 5, on a utilitarian basis, let’s release you after 5. So that was considered, philosophically speaking, a much better system.
I pulled a couple numbers here. Franklin Roosevelt, obviously 4 terms in office, pardoned more than 3,000 people while President but only commuted the sentences of 488 people. Truman granted almost 2,000 pardons, but only 118 commutations, and then Eisenhower pardoned 1100 people and commuted only 47 sentences. In other words, I think the evidence is very, very strong that parole displaced commutation in terms of-
Thomas: Which- but that sounds fine, right?
Thomas: If you do parole right.
Andrew: Yup. But then we get to the latter half of the 20th Century, in which there was a massive backlash beginning in the late 1960s-
Andrew: -against parole. So you have depleted the longstanding historical norm, replaced it with a parole system, and then gotten rid of parole.
Andrew: Beginning in the 1980s you had a massive decline in the use of the presidential pardon at all. That gets us to, as you alluded, Bill Clinton, in office, who throughout the first 8 years of his presidency pardoned almost nobody.
Andrew: Didn’t use it in any way whatsoever.
Thomas: Until his buddy needed it.
Andrew: Yeah, and look, here’s the most pro-Clinton case you can make. That is, in his eighth year [Laughs] Bill Clinton spoke openly about having not pardoned individuals and said “I want to create a process, I want to review, I think that I have been unnecessarily politically tough on crime and that made me derelict in my duties as President of engaging in appropriate presidential pardons.” Now how you credit that is entirely up to you.
It is 100% a correct criticism that a key component of Bill Clinton’s electoral strategy in light of Michael Dukakis’ humiliating 40-State defeat in 1988 was to be a pro-tough on crime Democrat. He took time off the campaign trail in 1992 as a very public stunt to go to the public execution of Ricky Ray Rector in Alabama, who was profoundly mentally ill and had I think an IQ – I know an IQ below 80, possibly an IQ below 70. Somebody that in any system where you care to evaluate whether folks have comprehended and taken responsibility, this is the exact opposite. This is somebody who clearly had severe developmental disabilities, and Bill Clinton made a campaign stop out of going to his execution. 100% being tough on crime was part of Bill Clinton’s shtick.
We all know he pardoned a bunch of his buddies on the day he left office, January 20, 2001, including financier Mark Rich. Do you wanna take a guess, because this shocked me so I’m giving you a clue.
Andrew: Do you wanna take a guess how many pardons Bill Clinton issued on January 20th, 2001?
Thomas: Uh, gosh, I have no idea. So you’re saying he didn’t – I’ll take your cue in that you said he didn’t pardon anybody like at all and then talked about how he should’ve used it more, so I dunno, 200?
Andrew: Yeah, 177.
Thomas: Oh wow! Pretty good guess!
Andrew: No, you smacked that one to the wall. I remember5 it historically as being like 30 or 40 because those were the ones that made news, and four or five were particularly ugly.
Thomas: The cynic in me is like, you know, is he just doing what Trump is doing right now? Oh, I just wanna pardon a bunch of people and then sneak in his buddy, Mark Rich or whoever it was.
Andrew: So I think that that – I would say this, there is 100% Clinton abusing the pardoning process to pardon his buddies. There is also the component of trying to bury those within a long list of other pardons. But if you wanna make the strongest pro-Clinton argument that you can make, there were genuine – there was a genuine review process in that 8th year that led to that specific recommendation.
Andrew: So I would say, in the Alan Dershowitz-ian sense, there is undoubtedly mixed motives. And unlike Alan Dershowitz, I think it is enough to say the fact that some of this had a corrupt intent is enough for us to condemn it. I don’t think having mixed motives isolates you from evaluating the entirety of the process.
Andrew: In fact, it did not stop Gregory C. Sisk, who is currently a law professor at the St. Thomas Law School in Minneapolis from writing a law review article entitled “Suspending the Pardon Power During the Twilight of a Presidential Term.”
Andrew: Which may be the hardest title I have ever read on the air. The sixth sick shake or whatever.
Thomas: Unique New York seashell by the seashore pardon act.
Andrew: [Laughs] Yeah, Professor Sisk was very, very disturbed by the Mark Rich pardons and, again, fairly so. I have tried to track him down, he does not appear to have a social media presence. This St. Thomas Law School is a pretty conservative campus and he seems to be a pretty conservative guy. I would hope in the interests of consistency that he is also speaking out against the Trump pardons.
His law review article, though, I don’t have problems endorsing the law review article. It basically says we should amend the constitution to prohibit the President from using the pardoning power during his lame duck session. Now whether that would solve anything in light of the transformation that Donald Trump has just engineered, I don’t know, but Sisk argues, and I think correctly, that there are only three checks on a President using his pardon power. The first is impeachment.
Thomas: Oh yeah. [Sarcastically] Cool! Alright!
Andrew: [Laughs] We got him!
Thomas: We got our recourse, yeah.
Andrew: The second is being voted out of office.
Thomas: Right, doesn’t really help in the lame duck of your second term, but okay.
Andrew: Right. And the third is the judgment of history.
Thomas: Oh, yeah. [Laughs]
Andrew: Writing with delightful prescience, I quoted a bit from this and sent it out over our @openargs Twitter feed, but I just wanna read this because this was written in 2002.
“At the constitutional convention of 1787, James Iredell said that he doubted a man honored by his countrymen with the office of the presidency would apply the pardon power in a corrupt fashion and thereby suffer the damnation of his fame to all future ages. Alas, this faith was based on the now disproved assumption that no president, even when departing office, would ever sacrifice his venerable reputation for the immediate gratification of granting immunity to friends and family or the self-indulgent pleasure of wielding uncontrolled political power according to personal whim.”
Then, the sentence I like the best: “Furthermore, to be concerned about public reprobation a person must have the ability to feel shame.” (End of quote).
That takes us to today, and I wanna go through very briefly the monsters that Donald Trump has pardoned and/or commuted the sentences of. I cannot state this strongly enough, and that is throughout all of history the purpose of the presidential pardon power has been to temper the hard impartial rough nastiness, absoluteness of the criminal justice system with mercy. As recently as five years ago, lawyers were writing law review articles suggesting that the problem was that Presidents were pardoning too few people in an era of law and order and that even post Mark Rich that Presidents need to pardon more individuals because all of the practices that ebbed and flow, that were designed to introduce mercy in the process, are at their low right now.
So yes. Pardoning your buddies is wrong, but pardoning criminals is a part, a core part, of what the President ought to do. Donald Trump has transformed that into now pardons are not to interfere in the criminal justice system, they’re not for the average person, but if you’re rich and well connected and you’re a buddy then they’re part of to the victor go the spoils. They’re part of the perks of the presidency of being able to let your personal friends, backers, supporters, off.
Again, he didn’t start the process, but he’s taken it, dragged it over the line, and blotted out the line behind him. I don’t know, I look at Sisk’s article and this is not something that a second term President is doing in his lame duck session. This is something that a President who stands for reelection in November of this year, in a little over eight months, is doing openly in a way that I think would have been inconceivable a couple of years ago.
Andrew: So I don’t know how to fix it. I do need to tell you, these pardons are worse than you’ve been reading about in the press. If I can go super quickly through who they are?
Andrew: There were four commutations, and let me bracket all of this. Anybody who is not a public figure I’m not going to discuss. I have read in two separate sources that all of these folks have been mentioned at various times on Fox News pieces, I can’t confirm that, so anybody who’s not a public figure I’m not gonna discuss.
Andrew: That gets us down to five. One commutation, Rod Blagojevich. [Sighs] I don’t think anything more need to be said about Rod Blagojevich, who is literally the embodiment of corruption in office. The one thing I will say is that Trump’s tweet in favor was “this was another person who was put away by Jim Comey” which is just … made up. Jim Comey left the Department of Justice in the fall of 2005 and was the [Laughs] general counsel of Lockheed Martin from 2005 to 2013 when he was appointed FBI director by Barack Obama. So… no!
Thomas: It’s really – I mean, it’s pointless, but trying to understand what Trump is even thinking with the Blagojevich thing, because we’ve been talking about this for, what, at least a year, maybe more because he kinda teased it, didn’t he? Like a long time ago?
Thomas: What… and then he said – I didn’t realize Blagojevich was at some point on The Apprentice? And then I was like maybe it was just that. Like honest to god, maybe it was just like, oh, I know that guy.
Andrew: I honestly think it is to announce pardons that are so outrageous and so indefensible that they support what will now become the Trump-Dershowitz argument.
Andrew: Which is “I’m the President, I get to pardon everybody.”
Andrew: This is a perquisite of the job and shut up about it. And look, again, from a legal perspective that first half is correct. There are no checks on the presidential power to pardon other than the three that Sisk mentions, but norms used to count and it used to matter and you used to feel shame, but again, as Sisk points out, that requires a President that is capable of feeling shame in the first place and we don’t have one.
So Blagojevich was not pardoned, his sentence was commuted. He got out of jail five years early and his conviction is still on the books.
Seven folks were pardoned, and I’m going to talk about the four that are public figures, and I’m gonna talk about that because I think people don’t realize, unlike Blagojevich, none of these four people were in prison at the time that Donald Trump issued the pardon.
Andrew: This is not about getting people out of prison, this is about expunging their records in such a way as to literally rewrite history, and in one case in a way that is gob-smackingly appalling. I’ll get there.
The one I’m gonna spend the least amount of time on because I knew the least about and he’s not interesting, is David Safavian. He is just a typical scumbag Republican insider, he was connected to Abramoff, he’s highly close to Grover Norquist, he was multiply convicted of perjury. He’s the only lawyer I’ve ever seen get disbarred for conduct that didn’t involve misuse of client funds.
Andrew: He’s a total scumbag, Republican hack, and that’s probably the best one of these four.
Andrew: So that’s Sufavian. Number two is Edward DeBartolo, Jr. You may remember that name-
Thomas: I do not.
Andrew: He’s the former owner of the San Francisco 49ers.
Thomas: Oh, yeah, I saw that. Yeah.
Thomas: Not… true.
Thomas: I’m not a 49ers fan, but I saw that in the news that he was the…
Andrew: So here’s his crime, and see if you can start to see the pattern emerging. He was shaken down by corrupt democratic criminal Louisiana governor Edwin Edwards, who wanted a $400,000 bribe from DeBartolo in exchange for granting DeBartolo a riverboat casino license.
Andrew: So exactly Blagojevich’s crime, right?
Thomas: The amount of corruption contained in that sentence is incredible. It’s amazing.
Andrew: Yup. DeBartolo paid the bribe and then when it went public backed out of building the casino. He then pled guilty to DOJ investigators to one charge of misprision of felony, which is 18 U.S.C. § 4, which is a delightfully oldtimey sounding word which means failure to report a felony that you know about.
Andrew: It’s not a thing – it’s a thing that you plead to, typically. It’s not a thing that they typically are able to arrest and try you for individually, but yeah. So he gets a sweetheart deal, pleads to 18 U.S.C. § 4 in exchange for testifying against Edwards and his sweetheart deal was two years of probation and a million dollar fine. DeBartolo did not spend one day in prison and he paid a fine of a million dollars which, admittedly, would be a lot for you or I or most of our listeners, but for DeBartolo, he owned the 49ers.
Andrew: Paying a million bucks was turning over a couple of couch cushions.
Thomas: You just gotta cut a tight end or something. Sorry, I need your salary! [Laughs] To pay off my legal fees or whatever.
Andrew: Yeah, so that was DeBartolo, and again that is about expunging his criminal record for a guy who is unmistakably a criminal scumbag!
Thomas: What a pointless thing.
Andrew: Yeah. Number three, and I didn’t know how to arrange these last two.
Andrew: Number three was Michael Milken, who anybody of my age knows as one of the true villains of the 1980s. I don’t have time to get into it.
Thomas: Oh, was he in the Transformers or the taint team?
Thomas: I think of them as the taint team now, what’s the actual show?
Andrew: The A Team.
Thomas: The A Team, yeah. The Taint Team is better.
Andrew: That’s true!
Andrew: You should read – Michael Lewis’ first book is called Liars Poker-
Thomas: Oh, I’ve gotta read that.
Andrew: -and it is about Michael Milken. It’s amazing and you should read it. You probably remember the Futurama, the future stock.
Thomas: Oh when the 80s guy comes back?
Andrew: The 80s guy, yeah.
Thomas: Oh my gosh I love that one!
Andrew: And he’s like “I was having whiskey with Boesky and cookies with Milken.” That’s a reference to Michael Milken.
Andrew: That’s how infamous Michael Milken was as a criminal scumbag.
Thomas: Wow. Did he have bonitis?
Thomas: Sorry that’s just a reference.
Andrew: I wish, I wish. My only regret … is that I have … bonitis!
Andrew: Oh such-
Thomas: Such a good episode.
Andrew: It may be – it’s obviously a top five, it may be my favorite Futurama episode and it will never not be funny, although it has ceased being funny to all of my friends and family and close associates.
Thomas: It’s not funny enough for minute, you know, 70 of an episode.
Andrew: Yes, it is, because it is whenever the safety dance comes on [Laughing] I will look and do the Fry voice and say “you know, that dance isn’t as safe as they said it was!” [Laughs] I can’t help but laugh at that.
Anyway, so Michael Milken engineered junk bonds that wrecked the economy at the end of the 1980s.
Andrew: He served 2 years of prison in 1990, he paid a $600 million dollar fine for securities fraud, which did not bankrupt him, and by virtue of being pardoned can no reapply to trade securities.
Thomas: [Laughs] Wow! How old is this guy?
Andrew: He’s like 105.
Andrew: But it doesn’t matter! Here is one of the true villains of the American economy, who didn’t suffer enough to begin with.
Andrew: Who came out ahead of having engineered junk bonds and insider – every insider trading scheme that you’ve seen in every 80s and 90s movie that you’ve ever watched, that’s Michael Milken. He now can reapply for a securities trader license.
Andrew: Because his conviction has been eradicated by the President. Then [Sighs] that leaves us with Bernie Kerik. Bernie Kerik, Rudy Giuliani stooge, police commissioner during 9/11 and because of his Republican contacts was appointed the intra-minister of the interior in Iraq after the United States came in and decimated the infrastructure of that country. And you might say-
Thomas: This is not a good start to a story about corruption.
Andrew: Yeah! You might say after deposing Saddam Hussein, sending in the US military and flattening all of Iraq, what did the minister of the interior do? The answer was create the Department of the Interior of the country of Iraq, establish the police force. That was ostensibly where his police commissioner expertise would come into play.
Andrew: But literally, build the infrastructure of all of the services that a new country that you’ve just completely decimated would have to do. This guy was as corrupt as you could possibly imagine. Was bribed with a suitcase with a quarter of a million dollars in it from Eitan Wertheimer, an Israeli billionaire, and we don’t know what for.
Thomas: Hmm. We just have the suitcase?
Andrew: We literally just have the suitcase.
Andrew: He pled guilty to five different – excuse me, he pled guilty to eight charges of felony tax evasion-
Thomas: Suitcase possession. Oh.
Andrew: Or 18 U.S.C. § 1001, false statement charges. He spent four years in prison, he was released in 2013. Bernie Kerik is a low level New York scumbag who was elevated to the, way beyond his station.
Thomas: High level international scumbag!
Andrew: Yeah! Controlled millions, potentially billions of dollars in U.S. grants as we rebuilt Iraq and the evidence was this is the kind of guy that you just went to and gave him a briefcase full of money so that you could direct it to your friends. I should say, again, so we’re clear and Bernie Kerik you’re welcome to sue Opening Arguments Media, LLC! [Laughs] It’s a Maryland Limited Liability company. We do not know what he was bribed for. We know that he was a scumbag and we know that he has been out of prison since 2013 and we know that it was very, very important to Donald Trump to expunge the criminal record of this scumbag.
With that, Donald Trump has completed the transformation of the pardon power to a perk of the presidency. It’s just, that’s a thing you do for your politically connected buddies. It was not this way four years ago, and don’t forget.
Thomas: [Sighs] Wow. Alright, well, on that horrible miscarriage of justice note, let’s talk about something cheerier which is our new patrons at patreon.com/law. New patron – no. First Timer Friday!
[Patron Shout Outs]
Thomas: Okay, now it’s time for Thomas Aces the Bar Exam! Easy game of the century. [Laughs] Okay, here we go.
T3BE – Question
Andrew: Seven in a row on the line! Alright, Thomas, a non spreadsheet related question here. An engineer entered into a written contract with an owner to serve in the essential position of onsite supervisor for construction of an office building.
Andrew: The day after the contract was signed the engineer was injured while bicycling and was rendered physically incapable of performing as the onsite supervisor.
Andrew: The engineer offered to act as an offsite consultant for the same pay as originally agreed to by the parties. Is the owner likely to prevail in an action against the engineer for damages resulting from his failure to perform under the contract?
Andrew: A) No, because the engineer offered a reasonable substitute by offering to serve as an offsite consultant; B) No, because the engineers physical ability to work as onsite supervisor was a basic assumption of the contract.
Andrew: C) Yes, because the engineer breached the contract by disappointing the owner’s expectations; or D) Yes, because the engineer’s duty to perform was personal and absolute.
Thomas: [Sighs] Well this seems straightforward but the answers are slightly confusing me. That B answer, now I’m gonna go back through it, but just on the first quick reading the B answer sounded like it should’ve been a “yes” answer, didn’t really make sense as a “no” answer, but maybe I’ll figure it out by re-reading it here.
Okay, so seems pretty straightforward. It’s a contract, it seems important that it’s an essential position of onsite supervisor, that seems very important to me. So unable to perform the contract as written and again it’s essential so this seems like – in my mind I’m already leaning toward the owner prevailing because it doesn’t seem to me that you could just say sure, you needed me onsite and that was essential to the contract but how ‘bout I just don’t do that and still get paid the same? That doesn’t seem right to me, seems like there should be some amount of damages here.
But let’s see. The engineer offered to serve as an offsite consultant for the same pay as was originally agreed to. Is the owner likely to prevail in an action against the engineer for damages resulting from his failure to perform? That’s pretty vague, it doesn’t tell us how much or what exactly those damages are. Is it the difference between, or the time that he wasn’t supervising and you find a replacement? None of that seems to be here. I think I’ll just take – that means some sort of damages which seems like a pretty low bar to say you’re gonna prevail in damages.
Anywaw, I’m leaning towards yes, it seems like the owner should prevail because the other person’s not, the engineer is not able to fulfill the contract. So let’s see, A, no because the engineer offered a reasonable substitute by offering to serve as an offsite consultant. That’s a plausible answer, it just comes down to how reasonable that is and the fact that it said an essential position of onsite supervisor, makes sense that you need an onsite supervisor for construction of a big building.
To me, in my mind, that seems like a very reasonable thing to be an essential part of the contract that you can’t just say “no I’ll just fulfill it but I’ll be over here offsite.” Seems reasonable to me, so while A is slightly plausible and not a terrible answer, I still don’t think it’s gonna be a “no” answer.
B, okay this one confused me at first blush. Maybe I’ll understand it if I read it again. B, no because the engineers physical ability to work as onsite supervisor was a basic assumption of the contract. [Sighs] I am very confused by this answer, because doesn’t that sound like – it sounds like a “yes” answer to me but there must be some way that it makes sense. The engineer’s physical ability to perform as an onsite supervisor was a basic assumption of the contract. Doesn’t that seem like it should be a “yes” answer? Like yeah, that’s part of the contract and now the engineer can’t do it.
Wow. If it’s a no answer I suppose maybe it’s like since it was a basic assumption of the contract that doesn’t mean it’s part of the… what? It doesn’t mean that the engineer is now violating it because it was just an assumption? Is that what they’re going for? I’m really having trouble puzzling this one out. I suppose I’ll leave B as plausible just because it’s so confusing that [Laughs] maybe somewhere in there is the way that it makes sense as the answer? I’ll come back to B.
C, yes because the engineer breached the contract by disappointing the owners expectations. Now this is gonna be tough because I think it’s a “yes” answer but I don’t know how I’m gonna choose between which one. I’m not super in love with this language. Breached the contract by disappointing the owner’s expectations. Yeah, I don’t love the wording there. It’s hard to put into words exactly why, but disappointing the owner’s expectations, it doesn’t feel like as strong a wording, maybe, as I would think it should be.
D, yes because the engineer’s duty to perform was personal and absolute. That sounds right. Duty to perform was personal and absolute. I’m like 90% liking that answer, there’s something about personal and absolute, absolute that sounds a little weird. No, I think D is probably – right now D is probably my favorite answer because it’s a yes answer, it makes sense. The duty to perform, they had to do it. I was looking for something that was more along the lines of the performance of onsite supervisor was just necessary, it was essential, that kind of thing, that’s what I was looking for, but you know, D is close to that.
So I suppose I will 2nd Chance Bar Exam between B and D, again just because B is so puzzling to me that maybe this is just a tricky weird question where because performing onsite was a basic – I don’t know. I don’t understand B, it seems like it should be a “yes” answer. No because the engineers physical ability to perform as onsite supervisor was a basic assumption of the contract. Doesn’t? [Sighs] So is the logic of that answer that an assumption of a contract isn’t something you can get damages from? Is that what it is? Like if it’s just an assumption of the contract then you can’t sue someone for not fulfilling that assumption. I guess that’s what they’re going for.
I’ll leave B as maybe it’s a possibility because it’s so weird that it could be a trick question, but you know, I don’t have the most confidence in this because it seems like a tricky one, but I’m just gonna stick to the horse that brung me, which is picking what I think is the logical answer. Sometimes it’s wrong but it seems to be right a good percentage of the time, so I’m gonna go with D, yes because the engineer’s duty to perform was personal and absolute.
God, the only thing I don’t like is that that answer sounds more like if the engineer had said “oh, I’ve got a buddy” [Laughs] can do this. I’ve got a colleague that can sub in for me and that sounds like when it would be D which is no, your duty to perform was personal meaning you had to do it. [Sighs] I don’t – that’s why- gosh! Now I’m doubting myself. It just doesn’t quite sound right to me. Personal and absolute… maybe the absolute part captures it. You have to actually perform as the contract stipulates, but [Sighs] I don’t see another answer that I want more than D.
I’m gonna pick D, this could be the streak ending but if it ends, this was a tough question, it was really tricky and I don’t know. So D, final answer, there you go.
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, thanks so much for listening! We will see you folks on Tuesday but there should be a fresh YouTube video.
Thomas: youtube.com/c/openingarguments, go find it please. It will be out on, if everything goes well, Saturday, but over the weekend. Alright! We will see you on Tuesday!