Transcript of OA364: Will the Supreme Court Shield Trump’s Taxes? (No.)

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 364, and I’m Thomas, that’s Andrew.  How’re you doing, Andrew?

Andrew:         [Laughs] I am fantastic, Thomas!  How are you?

Thomas:         I am just-  we got so much good stuff to talk about.  There are lawsuits and lawsuits and more lawsuits and they pretty much just involve Trump, but lots of questions, lots of stuff I’m seeing posted on social media, people are unclear about what a lot of this means and that’s my favorite because Andrew’s here to break it down for us and tell us how this all actually works.  So I’m excited, you excited?

Andrew:         I’m excited! [Laughs]

Thomas:         Well, you also have some pre-show announcements?

Andrew:         Yeah, so two other things that I am very excited about.  A lot of you know I just completed delivering a sports economics lecture at the University of Maryland, Baltimore County, UMBC, go Retrievers, the only number 16 seed to ever beat a number 1 seed and right in my backyard!

Thomas:         Oh.

Andrew:         So econ professor Dennis Coates invited me to come by and deliver a lecture on antitrust in baseball and it was – I’m really, really proud of the work I put into the episode, so one of the things we’re gonna do is release that audio and I’m gonna upload the slides, there are like 104 of them so you’ll be able to follow along with the whole presentation.

Thomas:         That’s a lot of slides.  Jeesh!

Andrew:         I do my work, man, you know?

Thomas:         You really worked hard for that!

Andrew:         I really did!  So I think if you’re a patron of the show check the feed, we’re gonna release it for everybody, why not?  For everybody who’s a patron-

Thomas:         I was gonna say, what are you talking about?  [Laughs]

Andrew:         Well, you know- [Laughs]

Thomas:         This is exclusive patron content, for now.

Andrew:         For now!

Thomas:         Normies’ll see it eventually-

Andrew:         No, you know.

Thomas:         But, can jump on that right away.

Andrew:         Yeah!  So we’re gonna put that up, I really – I think you’ll like it even if you’re not a sportsball person, I think you’ll enjoy it.

Thomas:         Yeah.

Andrew:         The second thing I definitely wanna promote, you only have a couple days left on this.  This came from friend of the show Melina Raina Barrett who forwarded on to me the Democratic Party’s Voter Protection Law School Boot Camp.

Thomas:         Huh,

Andrew:         You can register for this online up through March 1st.  They are targeting 2nd and 3rd year law students.  We know we have a lot of 2nd and 3rd year law students who listen to the show, if you’re listening to the show and you’d like to be a part of the Democratic Party’s Voter Protection Program, I’m gonna give you the link in the show notes, you can sign up.  You have to watch 2 one-hour videos, you have to attend one live online class discussion, and then you will be part of the Democratic Party’s army of lawyers and law students to go out to help make sure that-

Thomas:         Gotta crack some skulls!

Andrew:         Yeah, exactly!  No, to make sure that-

Thomas:         No, no.

Andrew:         -people are informed of their rights and to help combat voter suppression efforts.  Look, every election cycle we get stories of people, particularly low information, low income voters, people who tend to be Democrats, who are told “oh no, you’re at the wrong precinct, you can’t vote.” “Oh no, you’re not on this list, you can’t vote.”

Thomas:         Hmm.

Andrew:         In great many of those cases you have remedies, you have rights.  This is really a great opportunity if you’re in law school to help people beware of what their rights are at the voting booth.  That deadline to apply has been extended through to Sunday, so I would encourage you to do that if you care about the integrity of the voting process.

Thomas:         So is this a law student/lawyer thing?  Or is this an anybody thing?

Andrew:         It’s a law student/lawyer thing.

Thomas:         Oh, alright.  Then I’ll stick to this barbed wire wrapping around this baseball bat.

Andrew:         [Laughs]

Thomas:         No, not really.

Andrew:         Well, you know, let’s talk about that off the air.

Thomas:         We’re not there yet.  I mean, I’m gonna keep it warm.

Andrew:         Don’t disassemble the bat!

Thomas:         [Laughs] I’ve come all this way-

Andrew:         [Laughing] It takes a lot of time to wrap the bat.

Thomas:         Bending it is kind of annoying, chops up my hands.

Andrew:         Yeah, gotta get those Kevlar gloves?  Yeah, exactly.

Thomas:         [Laughs] Ah [Sighs] You know, I’m just sitting here looking at our agenda for next show and I know I’m so excited about this one, but just a teaser, everybody’s probably seen that article going around about programmers who put every possible melody on a hard drive and try to copyright the whole thing?  I’ve seen so many people ask about that, we’re gonna talk about it on Tuesday’s show, so don’t miss it, and also Thomas citing Thomas in arguing to overturn Thomas.  Gosh, so much good stuff, I can’t wait.

Another quick announcement, it’s that time again for a live Q&A, and this is getting even better, by the way on YouTube.  Andrew, I’ve put in some work into making the interface a little better, making it look a little better, and it’s been lots of fun.  So in addition to the YouTube videos that we are doing now, we’re still doing the YouTube Q&A and that’s going to be this Sunday, that is March 1st, and that’s gonna be at 1:30 pm Eastern Time, 10:30 am my time.  Little early for me, I probably won’t be drinking, Andrew, maybe you will.

Andrew:         I’ll drink enough for both of us, it’ll be great.

Thomas:         Yeah, sure.  10:30 is a little early, not quite gonna pull it off.  No, I’m looking forward to that, but of course patrons get to ask the questions on the Patreon thread but everybody can come join, be in the chat on YouTube, it’s a ton of fun, make sure to show up.  Again that is 10:30 am, Sunday March 1st, 1:30 Eastern and if you subscribe to the channel I imagine you’ll get a little notification, so there you have it.

Andrew:         Yeah, you should be subscribed to our YouTube channel for Opening Arguments The Briefs anyway, but yeah, absolutely.  This coming Sunday at 1:30 pm Eastern, 10:30 Pacific.  One more little tease here-

Thomas:         Oh!  One more, one more little announcement?

Andrew:         Yeah, um there has been a certain amount of clamor for a certain Opening Arguments Live Show in a certain location.

Thomas:         Don’t know what you’re talking about, never heard of that!

Andrew:         [Laughs] Yeah, the folks demand that we come to Seattle, Washington and we are-

Thomas:         Doggonit we’re going to!

Andrew:         We’re going to come to Seattle, Washington, and here is the save the date.  Tickets are not up, we do not yet have a contract, it might still be a problem, but reserve-

Thomas:         Just a save the date to make sure you’re all ready to come hang.

Andrew:         April 4th, Saturday April 4th.  If you wanna do the platinum experience, Friday, April 3rd, Saturday April 4th.  When we have full details we will share those details with you because of course we will!  We wanna see you there!  We are super excited to come to Seattle, it is our most requested live show place, and I’m really, really looking forward to it.

Thomas:         Yeah, I think there was an – Atlantis was our second most or something like that.  I can’t wait to and by the way, you absolutely do wanna come to platinum night, that is gonna be amazing.  Can’t wait.  Yeah!  Save the date, everybody, and of course patrons will be the first to get the links to tickets-

Andrew:         Discounts?

Thomas:         That’s true, and discounts, and that’ll come at you as soon as we can, but first we better get to our first segment of today’s show, which was an Andrew Was Wrong?  Maybe Wrong?

Andrew Was Wrong-ish About Sentence Guideline Percentages

[Segment Intro]

Andrew:         Yeah, I’ve entitled this “Andrew Was Wrong-ish.”  It came from our buddy Randall Eliason, so you know, I take that pretty seriously.  You wanna read his comment there, Thomas?

Thomas:         Sure.  He says “I have to disagree with your take in OA 362 about Roger Stone that 99% of Defendants get a guideline sentence.  Sentences below the guidelines are fairly common, especially in white collar cases.”  So what say you?

Andrew:         Well, so here’s why it’s definitely an Andrew Was Wrong.  If you take the 99% literally I’m definitely wrong, that I’m gonna give you.  The actual numbers, I think it was meant to convey that it is a minority of cases, it actually is a slightly higher percentage than I would have guessed.  I would have thought that below guideline sentences when not requested by the government would have been less than 10% of cases?  If you put a gun to my head and said best Price is Right without going over, closest without going over, I would’ve said under 10%.

Turns out it is 17% of cases, so you know-

Thomas:         Hmm.

Andrew:         Professor Eliason has a point. 

Thomas:         He’s technically correct!

Andrew:         [Laughs] The best kind of correct!

Thomas:         [Laughing] Which is the best kind of correct!

Andrew:         Hey, he has three really specific points that I wanna engage with.  So first is that certainly it seems to skew upwards in cases that involve-

Thomas:         Involving cronies for presidents?

Andrew:         Cronies and rich white people, that’s right!

Thomas:         Crony law?  I wonder if they walk into the courthouse, they’re like “where’s the crony line?  Is there a crony, a specific crony court?”

Andrew:         It’s a section you can check off on your bar, your ABA section dues.

Thomas:         [Laughs]

Andrew:         Yeah, an extra $25 bucks.  I’m on there for litigation and business advice and, you know, cronyism! 

Thomas:         I’m picturing Life With Brian when he’s like “crucifixion?  Good, go down the hall.”  It’s like that but “Trump crony?  Good.  Go down the hall.”

Andrew:         [Laughs] So his first example is that both Bob McDonnell, foreign Republican Governor Bob McDonell whom we have discussed on this show at great length and Paul Manafort received sentences well below the guideline range.  That certainly is true and, as Professor Eliason points out, Bob McDonnell never served any of his because he was out pending review in the Supreme Court which reversed his conviction 9 to nothing.

His second point, and I’m gonna link this in the show note, contains the underlying data.  So every year the US Sentencing Commission releases a report on sentencing in the federal courts in the United States.  It’s a really, really interesting report.  If you go to page 11 you will see that there were 69,000 total cases, 97% of those pled out, and of those 69,000, 51,700 were within the sentencing guidelines, so that’s 75%.  17,200 were variances, that is they were not within the guidelines, so that’s 25%, but of that 25%, 1400 – So that’s 17,000 cases, right?  Of those 17,000 cases, 1400 were upward variances-

Thomas:         Hmm.

Andrew:         So more time than the guidelines would suggest, and another almost 4,000, 3800, were on motion by the government.  I wanna point out, even with Bill Barr’s thumb on the scale here the government didn’t ask for a downward variance in this case.  They said it would be appropriate, but at oral argument Judge Jackson really dug into Crabbe and said hey, are you moving for a below guideline sentence and he said no Your Honor. 

Those additional 4,000 are cases where the government says yeah, look, we all agree, every single person in this room agrees that the guidelines are not appropriate in this particular case.  We didn’t even have that in Roger Stone.   So when you take those out that leaves you with 12,000 cases and that’s the 17% that are below guidelines range, without sponsorship, by the government. 

A little bit of a sidebar, one that I did not expect. The lowest category of offenders that get below guideline sentences are immigration crimes. 

Thomas:         Ah.

Andrew:         I did expect that.  So in other words, you are the least likely to get preferential treatment if you are charged with an immigration crime.  The highest is what, in terms of being a variance, puzzled me. 

Thomas:         Hmm.

Andrew:         Those are child pornography cases.

Thomas:         Oh!

Andrew:         Of the 1500 cases of child porn defendants in 2018, that’s the latest year for which we have data, 2/3 got variances.  That’s table 10 of page 19, you can read it in the report.

Thomas:         Interesting.

Andrew:         Yeah.

Thomas:         Could that just be because of, like, how harsh some of those laws are with regard-

Andrew:         [Sighs]

Thomas:         Now don’t get me wrong, I’m not trying to defend child pornography or anything, but with – because you see those headlines that are like oh, 17 year old has pictures of his 17-year-old girlfriend and is charged with, you know, child porn.  Is that to do with any of it?

Andrew:         So we do not have enough data to make an informed hypothesis.  Part of it is because – that was my thought too and so I went to dig into the methodology, and the US Sentencing Commission for breakdown by criminal offense type aggregates together upward variances and downward variances.

Thomas:         Huh.

Andrew:         So we don’t know if it is – if it’s the same proportion of downward variances, 5 to 1, it may be that there are a lot of upward variances in child porn cases?  It may be the 17 year old’s with their 15 year-old girlfriends on their phone, we just don’t know.  There are a lot of plausible hypotheses that are consistent with the data, so I’ve sort of marked this off as a research project for me.  I’m gonna try and figure it out, I’m gonna try and get more finally granulated data here, but right now we just don’t know.

It could be a mismatch, could be upwards, could be downwards, we’re not sure.

Thomas:         So if you disregard that category of criminal, what do the percentages look like?  Can you do a more apples to apples comparison with crony law?  [Laughs] Just typical crony defendants, or white collar I guess?

Andrew:         Yeah.  When we leave that category out then the – and there’s also a category, again, small number of cases for sexual abuse.  So 2/3 of child porn cases, 45% of sexual abuse cases.  When we move beyond that, then the ones that seem to get the highest variances are money laundering at 38 and a half percent; fraud, theft and embezzlement at 35%.  So the white collar crime does tend to look like it’s more of an outlier and then obviously as we pointed out, the immigration offenses are less than 10%. 

Yeah.  It seems, again, to support the Eliason thesis that if you’re rich, white, and well connected- [Laughing] Yeah, go ahead.

Thomas:         I’m trying to make sure I understand.  So the whole average of the average, or the percentage of cases where it’s a downward departure, you started off with was like 17%, right?

Andrew:         Correct.

Thomas:         And then you’re saying that for some reason there’s a really high number of downward departures in child pornography cases-

Andrew:         No, and let me – I need to correct the terminology here.

Thomas:         Okay.

Andrew:         Only because the law takes into account both.  So a downward departure is still a guideline sentence.  For example when you get a 5k1.1 motion for cooperation you get credit, you get negative levels added into your sentence.

Thomas:         Aaah.

Andrew:         So it is still a downward – it is still a guideline sentence if you have a downward departure.  A variance is what happens when-

Thomas:         Oh!

Andrew:         -You’re outside the guidelines entirely.  Again-

Thomas:         Is that what happened to Roger Stone?

Andrew:         And that’s what happened with Roger Stone, he’s outside the guidelines entirely, the guidelines came up 29.

Thomas:         So to correct myself, are you saying that overall 17% of people get a – not a departure but an outside guidelines entirely?

Andrew:         25% get outside entirely, 17% are outside and below the guidelines-

Thomas:         Oh and the other’s-

Andrew:         8% are outside and above the guidelines, yes.

Thomas:         Okay, gotcha.  Good clarification.

Andrew:         Yup.

Thomas:         So then – but for some reason it’s a high percentage in child pornography cases, but that’s kind of offset by the low percentages that you’re seeing in immigration cases.

Andrew:         That’s exactly right, among other things, yes, that is exactly right.

Thomas:         Okay.  Alright.

Andrew:         And the rates appear to be higher – again, remember that we only have variances that count both above and below lumped together in the same category.  I don’t know why the USSG does it this way, but maybe they never expected anybody to dig this deeply into table 10.  It’s the end of a lengthy report that, you know.

Thomas:         So you had the breakdown for the overall?

Andrew:         I do, I do.

Thomas:         But just not – once you drill down enough it doesn’t give you the?

Andrew:         Yeah.  Once you drill down by offense category-

Thomas:         That’s weird.

Andrew:         -they don’t break it out anymore. 

Thomas:         Huh.

Andrew:         But there’s a lot, there’s a lot of data that they process in a lot of different ways.

Thomas:         Yeah.

Andrew:         But yeah, it certainly seems to support the hypothesis that white collar criminal defendants uh, tend to get more preferential treatment, which you know, contradicts to some extent what I said on the show regarding the outrage over Roger Stone’s sentence, I don’t think it much contradicts [Laughing] the basic thesis of the show, but I certainly do appreciate that.

I also want to endorse wholeheartedly the third point that Professor Eliason makes, which is the issue unprecedented and deeply troubling was Barr’s personal interference in a sentencing position taken by career prosecutors and within the guidelines was only made because the defendant was a crony of the President’s.

Thomas:         Yeah.

Andrew:         Then he says, and I just love this!  Gotta quote it directly!  “Barr doesn’t give a rats ass about excessive sentences!”

Thomas:         Yeah.

Andrew:         Which is 100% true, 100% correct.

Thomas:         Well I think he’s a fan of them, actually.

Andrew:         [Laughs] Right!  Well and-

Thomas:         In any other circumstance.

Andrew:         I think that is abundantly clear from the public speeches that Bill Barr has given.  So there we go, I really enjoyed being able to take a medium dive into the sentencing commission reports.  I certainly appreciate the correction on the numerical amount because I was surprised to find out that 17% of criminal defendants who are sentenced in federal court get a sentence that is below a guidelines range.  That’s about twice the number that I was expecting.

Thomas:         Hmm.

Andrew:         So I do appreciate it.

Thomas:         But it’s safe to say you could still correctly say a vast majority don’t?

Andrew:         Yeah!  Yeah. 

Thomas:         Okay.  Alright!  Cool, there you go.  Good stuff, that gives us a clearer picture there, and we gotta get on to our main segments, including the Mazars lawsuit, an update on that.  I think Yodeling is appropriate, so Brian, why don’t you hit it with the Yodeling?

Yodel Mountain – Mazars v. Trump

[Segment Intro]

Thomas:         I dunno, still there’s people who say Yodel Mountain is over, I dunno what they’re talking about, it’s never over, never dies, never goes away.  It will be forever. 

Alright, well there has been an update in this Mazars suit, right?  Why don’t you give us the breakdown?

Andrew:         Yeah.  So this is – these cases are consolidated before the Supreme Court.  This is Mazars, the accounting firm, Deutsche Bank, these cases are scheduled for oral argument at the end of the month of March, March 31st.  Just yesterday the House Committees, the Committees on Oversight and Reform and Finance in the US House of Representatives filed their opposition brief. 

So remember how this case got here.  These cases came up, Mazars in particular came up through the DC Circuit.  What happened was the U.S. House of Representatives issued subpoenas to third parties including the Mazars Accounting Firm and Deutsche Bank and others and said hey, we want you to turn over Donald Trump’s taxes to us, the House of Representatives, in connection with our legitimate oversight authority. 

Those entities went to Court and said “we don’t take any position on this whatsoever.  If the Court tells us to comply we will comply.  But the person on the other side of this is the President of the United States, who’s told us not to comply, and we’re a bank or an accounting firm, we don’t know what to do so just tell us what to do and we’ll do it.”  To the point that none of the named parties – I’ve never seen this before, procedurally before the Supreme Court.  None of the named parties intend to participate in oral argument before the Supreme Court. 

Thomas:         Huh.

Andrew:         Mazars isn’t gonna argue, Deutsche Bank isn’t going to argue, they didn’t file briefs, they don’t care.

Thomas:         Yeah.

Andrew:         [Laughs] Yeah!

Thomas:         Well, so you’ve told us this before, I guess I still don’t get why they haven’t just forked it over, then?

Andrew:         Because-

Thomas:         They don’t seem to care, but-

Andrew:         Well-

Thomas:         Some court just be like fork it over and we’ll do it.

Andrew:         Yeah!  That’s right, and part of that I suspect has to do-

Thomas:         Customer relations?

Andrew:         You make it as a joke-

Thomas:         I’m not really joking.

Andrew:         But yeah.  I suspect that the contract, which is private, we don’t have it and we don’t have a right to see it – I suspect that the contract between Mazars and their clients- It’s possible we could maybe piece together Deutsche Bank, I dunno.  But I suspect, I strongly suspect, that the contract between Mazars and their clients says “we will keep your data confidential unless required to turn it over by a court of competent jurisdiction.”

Thomas:         Hmm.  Right.

Andrew:         I put that in my client’s nondisclosure agreements all the time.  By the way, not as I’m doing some lawyer dirty trick to protect them, you put it in on both sides.  You say look, this is confidential data, both sides wanna keep their data confidential, unless a court tells us to, and sometimes you will even put in a provision that says, you know, we’ll provide you with notice that says look, we got a subpoena, we’re going to turn over this documentation, you need to know that.

Thomas:         Hey, by the way, on the topic of NDAs, we forgot to say the YouTube video last week-

Andrew:         [Laughs]

Thomas:         This was a rare, this isn’t intended to be what happens, but you might’ve missed a unique, original story because we covered something that we didn’t talk about here on the show about Bloomberg possibly releasing everybody from his NDAs inadvertently.  Just a quick pitch, sorry, but go to the YouTube channel, and catch a segment that was not here on this show on NDAs.  There you go, back to you.  Sorry.

Andrew:         No, that was a fantastic plug, and unlike last week I will remember to put a YouTube link in our show notes!

Thomas:         Well I got it in the bottom part of the notes, so it’ll be there.

Andrew:         Excellent, excellent.

Thomas:         [Laughs]

Andrew:         So that’s procedurally what happened, and we’re now all the way up at the Supreme Court with the D.C. Circuit, by the way, in a 2-1 opinion where the dissent was Trump hack Neomi Rao, who was rated unqualified by the ABA when appointed to the D.C. Circuit but confirmed anyway because Mitch McConnell hates us.  Wrote an incomprehensible dissenting opinion about how the House of Representatives did not have the power to issue these subpoenas.  Fortunately her position is a minority.

I’ve said this on social media, I want to say this on the air.  This case is as close to a slam dunk as you can possibly get in the law, certainly before the Supreme Court.  Now it will pull at least 2 howler monkeys who will reflexively defend Donald Trump no matter what.  I have to say, I think, if the game is shame John Roberts I think these briefs ought to shame John Roberts. 

We’re gonna walk through the arguments, but the arguments, the pro-Trump arguments to keep his tax returns from being released the House of Representatives are so transparently stupid and awful that it is hard for me to imagine that the Supreme Court will rule in his favor. 

That being said, lots of things that were super hard for me to imagine have happened, so-

Thomas:         Yeah.

Andrew:         Keep on eye on this.  But here’s the common sense way to think about this, which you’re going to see matches up to the law.

The House of Representatives wants Trump’s tax returns for what, if we want to be charitable to Donald Trump, Alan Dershowitz might call “mixed motives.”  On the one hand, they certainly care about embarrassing the President, they certainly care about the fact that the President has potentially committed crimes, but it is inarguable, there are bills pending in the House of Representatives that they also want to try and pass laws that will prevent any future President from doing this.

You cannot tell me, and I think even the most hardcore Trump supporter would be hard pressed to say that Adam Schiff wouldn’t want a law in place to prevent any future billionaire President from accepting improper gifts from foreign countries.  Right? 

Thomas:         Yeah but –  I hear that, but also isn’t this already contained in the fact that they have the right to oversee, the constitutional right to, you know, make sure the President isn’t breaking the law?  Isn’t that…

Andrew:         I’m gonna talk about that.  So this is actually, there is an argument being made – it is not a good argument [Laughs] but it was an argument that was embraced by Neomi Rao and Neomi Rao’s dissent is cited like 37 times in the Trump brief to the Supreme Court, it is their single most cited source even though it is, you know, written in crayon on a napkin. 

The argument is that there is a distinction between the Congressional oversight power pursuant to legislation and the Congressional investigatory power pursuant to potential criminal activity that is part of the impeachment process.  So one of the arguments that they have made is look, these subpoenas were not issued by the House Committee with respect to impeachment, they were issued before impeachment, before the impeachment resolution was authorized, before the impeachment committees were set up, and ostensibly in connection with pending legislation.

So, the argument goes, they’re invalid if their real purpose is to dig up dirt on how the President has committed crimes.  That’s Trump’s argument, and it’s why I framed it at the outset, because there is – the common sense response to that would be, like, [Sighs] okay, I get it, but the fact that you’ve committed crimes doesn’t mean that Congress also cares about stopping other people from committing future crimes. 

That position, by the way, is absolutely born out by the law.  In other words, even if you concede, even if you say yeah, look, I agree we have mixed motive, I agree this was done in connection with impeachment, it doesn’t matter.  Congress’ plenary powers to conduct oversight in order to pass laws are more than sufficient for them to issue a subpoena to a third party – not to the President, it doesn’t require the President to do anything, but to a third party to provide information, even if that information concerns the President.

I would add, by the way, if you’re thinking, if you’re sort of taking the centrist “Well, maybe this is gonna cause a slippery slope and who knows what they’re gonna do to- that slope is gone.  [Laughs] The Republican House of Representatives used way more invasive techniques against Bill Clinton in the 1990s.  You may recall what the Republican House of Representatives did to Barrack Obama in the 2010s.

Thomas:         Yeah, and Hillary. 

Andrew:         It is just – there is no precedent, there is no hardball left to play, they will.  Republican will use every mechanism at their disposal to harass President Elizabeth Warren or whomever in 2020, that is going to happen no matter what.  That’s a terrible, terrible argument.

I also wanna add that the actual legal argument being made here by the President is, as I have prefaced, one of the very worst that I have seen from the Trump legal team.  This is a Jay Sekulow, Bill Consovoy brief.  It’s bad even for Jay Sekulow!  [Laughs] Here let me lay out, and I swear to you, I will give you the page citations, I will include the brief in the show notes.  I am not making this up, I am not characterizing this uncharitably. 

Thomas:         [Laughs]

Andrew:         [Laughing] If anything, I am characterizing this overly favorably to how bad this brief is.

Thomas:         This is always a good lead in to something!

Andrew:         Yeah!  So here are their arguments.  Argument number one:  Congress’ subpoena power is implied, not express.  That is the “there’s no specific rule that says a dog can’t play basketball” argument.  That is on pages 25-27 of the brief.  Then, number two, and they’ve never done this before.  That is on pages 27-31 of this brief.  Point number three:  Well, okay, they did it for Nixon and Clinton, but they didn’t do it for all the other Presidents we never had to impeach!

Thomas:         [Laughs]

Andrew:         That is also pages 27-31.

Thomas:         So wait, are you saying they got Nixon’s tax returns?  Or just the same power but used on a different thing?

Andrew:         Right.  The same powers of oversight.

Thomas:         Okay, gotcha.

Andrew:         Then, point four:  So that means they can’t do it now, that’s pages 32-35, and then [Laughing] literally half of the argumentative section of the brief, pages 35-52 is and by the way the House of Representatives is super mean and they hate Trump.

Thomas:         [Laughs]

Andrew:         That is it!  Again, send this off to Uncle Clarence, send it off to Uncle Frank!  You cannot tell me that that is not a fair characterization of the arguments being raised on behalf of the President.

Thomas:         Right, but you’ve gotta remember none of us are law-  Sorry, I shouldn’t say that.  Many of us aren’t lawyers, so why are those ridiculous arguments?

Andrew:         That is the question I hoped you would ask.

Thomas:         [Laughs]

Andrew:         The brief that was filed by the House of Representatives yesterday convincingly and thoroughly demolishes all of those arguments.  I’m gonna give you the topline summary, this comes from pages 66-67, I think this is the clearest statement of, you know, [Laughs] the My Cousin Vinny “Your Honor, everything that guy just said is bullshit!”

Thomas:         [Laughs]

Andrew:         Here’s what they say.  “For the oversight committee to understand whether existing financial disclosure and conflict of interest legislation is adequate to the challenges posed by this President’s unique financial arrangements, it must understand those arrangements. 

The intelligence committee must make similar inquiries to determine whether the President is subject to foreign financial leverage, and it is hard to imagine a more thorough and specific demonstration of need than exists for the Financial Services Committee’s investigation given the ocean of independent investigative reporting connecting President Trump’s entities with possible elicit funding.  It would be irresponsible for any congressional investigation into those subjects not to examine those businesses.”

Alright, that seems right, but let’s look at the specific legal arguments.  First, in response to the “there’s no rule that a dog can’t play basketball,” this starts at page 42 of the House brief.  “This Court has often noted that the power to investigate is inherent in the power to make laws.” Then citation to a couple cases.  “It has repeatedly held that Congress’s power to investigate is necessarily broad and coextensive with the power to legislate.  Their investigative power encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.”

Then they do something incredibly clever.  They cite to a 2019 case called Franchise Tax Board v. Hyatt about State sovereign immunity.  State sovereign immunity is another principle that is not written explicitly into the constitution.  You can CTRL+F for those words and it’s not there.  Franchise Tax Board v. Hyatt was a 5-

Thomas:         Just imagine standing next to the Constitution and “Control F, Control F!”  Nothing!  How did they write this thing, what program is this in?

Andrew:         [Laughs]

Thomas:         Nothing’s happening! 

Andrew:         [Laughs] Yeah!  So Franchise Tax Board v. Hyatt was also a 5-4 decision that split on ideological lines.  In other words, the five-justice conservative majority.  It was written by Clarence Thomas.  Here is Franchise Tax Board v. Hyatt, here’s the relevant portion of Clarence Thomas’s opinion in that case: 

“Hyatt’s argument” and I should bracket and say that State sovereign immunity is less important because it is not explicitly spelled out in the constitution (end bracket) “is precisely the type of ahistorical literalism this Court has rejected when interpreting the scope of the State sovereign immunity since the discredited decision in Chisme.  Moreover his argument proves too much, many constitutional doctrines not spelled out in the Constitution are nevertheless implicit in its structure and supported by historical process, e.g. judicial review.” 

Thomas:         [Laughs]

Andrew:         Cite, Marbury v. Madison, 1 Cranch 137.

Thomas:         Yeah, good example.

Andrew:         Yeah!  Real good example!  Look, again we could talk about the Franchise Tax Board and why the liberal justices were in the minority there, but the underlying principle that Congressional oversight isn’t written into the Constitution as Congressional oversight is laughable, and it is so laughable that Clarence Thomas made fun of it six months ago!

Thomas:         Wait he did?

Andrew:         Well-

Thomas:         I thought he would’ve been one of those people that’s like hey, it’s not written down!

Andrew:         I mean I just read you, the fact that it’s not written down in the constitution doesn’t mean it’s not important, e.g. judicial review.  That’s a-

Thomas:         Sorry, you were saying that was Clarence Thomas saying that?

Andrew:         Yeah!  Clarence Thomas wrote that!

Thomas:         Oh, apologies, I missed that.

Andrew:         Yeah, yeah.

Thomas:         I was in the mode of liberals would be the ones- okay, I reversed it. 

Andrew:         Yeah.

Thomas:         Wow, okay.

Andrew:         No, liberals didn’t disagree with this part of the opinion, that’s what I was trying to say.

Thomas:         Oh, okay.  Gotcha.

Andrew:         So this is the conservative majority led by Clarence Thomas saying yeah, this argument is nonsense.  Again, they were doing it in the context of State sovereign immunity, so if you wanna say Congressional oversight is a different and somehow less important part of our constitutional structure, I suppose you can say that but then you would have to deal with the long history of cases that I cited previously.

Thomas:         Yeah.

Andrew:         It’s clear that it is equally important and it is clear that the fact that it’s not written out in the Constitution that the dog can’t play basketball rule-

Thomas:         [Laughs]

Andrew:         Is of no force here.  Absolutely none.

Thomas:         You know?  Quick thought.  Somewhere between Airbud 1 and Airbud 17, Golden Receiver or whatever it is, they could’ve just written a rule that’s like “okay sorry!”

Andrew:         [Laughs]

Thomas:         Uh, dogs can’t play basketball.  I dunno why we have to write this down but we’re 17 movies in, I suppose somebody should write this down.  Dogs can’t play basketball or football or any sport into perpetuity throughout the whole universe.  Done!

Andrew:         [Laughs]

Thomas:         They never figured that out.

Andrew:         That point, it’s actually a doctrine I discuss in our patron-only baseball special lecture that I delivered yesterday-

Thomas:         Oooh!

Andrew:         Because one of the reasons for upholding baseball’s antitrust immunity, non-statutory antitrust exemption was the, hey look, we decided this case 30 years ago and Congress could’ve done something about it and they haven’t, so you know, get on that, Congress!

Thomas:         Hmm.  Yeah.

Andrew:         It’s kind of the intuition that you just had.

Thomas:         So you’re saying Airbud has a case?

Andrew:         [Laughs]

Thomas:         If they want-

Andrew:         I’m saying there’s a chance.

Thomas:         If the local little league sports commission or whatever [Laughs] governing body would be wanted to keep Airbud off the field then they would’ve acted!

Andrew:         Yeah.  And by the way, is one of the Airbud sequels really called “Golden Receiver” ‘cuz-

Thomas:         100%.  Now I’m gonna go through the entire Airbud-

Andrew:         [Laughs] That is such a great pun, I gotta say.

Thomas:         Airbud series.  I dunno if it’s 17, but it’s one of them.

Andrew:         [Laughs]  Well you do that!

Thomas:         [Clears throat] Alright – oh sorry, Airbud 2 Golden Receiver.

Andrew:         Nice!

Thomas:         Plays football.  Airbud World Pup plays soccer!

Andrew:         Uck.

Thomas:         Airbud Seventh Inning Fetch- You asked, you asked!

Andrew:         No I did.  I’m rating the puns.

Thomas:         By the way, they rattle these off like every 2 years. 

Andrew:         [Laughs]  

Thomas:         I’m on the Wikipedia now, it’s like one to two years between Airbud.  Airbud Spikes Back.

Andrew:         Ooh!

Thomas:         Guess what sport that is.

Andrew:         That’s okay.  That’s volleyball, right?

Thomas:         Yup, of course.  Airbuddies – oh ho!  A spinoff series!  … Oh, those don’t have puns, though.  So I guess we’re only on five Airbud movies covering – and then probably Airbud passed away because Airbud was a dog. 

Andrew:         [Laughs]  

Thomas:         I dunno, that’s my guess.  Alright, so anyway, that aside.

Andrew:         [Laughs]  Golden Receiver, I mean clearly if we’re ranking the puns Golden Receiver is Best.  Spikes Back I think number two.

Thomas:         I actually like World Pup quite a bit.

Andrew:         [Laughs]  

Thomas:         You know, I have to – oh my gosh, somebody has made a matrix with all of the films and the characters and which characters are consistent throughout the Airbud universe! [Laughs]  

Andrew:         Sure. 

Thomas:         [Laughing] Who edits Wikipedia and spends, like, hours of a work week on the Airbud section.  [Sighs] This is the best.  Anyway, sorry.  I love humans.

Andrew:         We are gonna lose, I predict, no fewer than 10 patrons over this.

Thomas:         Alright.  But we’re gonna gain like 100 Airbud devotees.

Andrew:         [Laughs]  I sure hope so!  Please stop dropping your patronage! 

Okay, so that was point one, no, Congress’s oversight powers are broad and by the way the conservative wing of this court thinks that your Airbud argument is super stupid.  Next point, remember, piggybacks onto no, the power, it should be interpreted narrowly because it’s not specifically written and by the way we never ever do this except for, you know, against Clinton and Nixon.  Turns out that’s super not true either! 

So the House of Representatives, this is starting on page 47 but it continues for another 11 pages describing when in fact they have done so, that is requested subpoenas from third-parties that may implicate on criminal behavior, that may implicate on the interests of the rich and powerful, but nevertheless are crucial to understanding and passing legislation. 

One I’m just gonna pull out here because it is almost directly on point is that in 1929 Congress specifically subpoenaed oil-tycoon Harry Sinclair to testify, despite the fact that Congress had passed a resolution that said his oil leases were fraudulent.  Sinclair made the same argument that Trump is making: well, look, you’re not really trying to pass a law you’re just trying to get me to come in so that I perjure myself in front of the House of Representatives and you can then have me arrested because you’ve already said, you’ve decided in advance that my oil leases are fraudulent.

By the way, his oil leases were totally fraudulent!  He was one of these oil-tycoon millionaires at the turn of the century that had used undue influence to get unfair government concessions to line his own pockets, and Congress was looking into that.  The fact that he was also a criminal did not immunize him from having to comply with a valid subpoena.  So [Laughs] they subpoenaed him six separate times and finally the Supreme Court was like … yeah, so long as there is a legitimate legislative inquiry, you don’t get off scot-free just because you’re also a criminal.

Thomas:         [Laughs] Just because you’re also a criminal.  Okay.

Andrew:         That literally is Trump’s argument in this case.

Thomas:         [Laughs]  

Andrew:         They’re only concerned with, as you put it at the beginning, they’re only concerned with trying to prove my crimes they’re not really trying to pass laws. 

Thomas:         Wow.

Andrew:         And the House of Representatives response is uh, we can do both!  [Laughs]  

Thomas:         Yeah.

Andrew:         I actually looked for – I spent way too much time, so I had to give it up during the prep for this show.  There was a fantastic fake transcript that went around a decade ago, since I’m on the baseball kick, that was like an imaginary conversation between former Cubs manager Lou Panela and Milton Bradley, the ex-Cubs outfielder and malcontent because they had-

Thomas:         I think the played briefly with the Dodgers.  I don’t remember that.

Andrew:         Oh yeah, Milton Bradley has been everywhere.

Thomas:         Yeah.

Andrew:         He’s just, like, terrible.  So there’s this delightful exchange in which – again totally fictional dialogue, but Lou Panela says to Milton Bradley “I hate you because you’re bad at baseball,” and then Milton Bradley’s like “no, you hate me because I’m black,” and Lou Panela says “I can hate you for two reasons” which I think is probably accurate.  There almost certainly was some element of racism, but also some element of malcontentism in Milton Bradley jumping from ball club to ball club. 

I kind of think of that here.  I just sort of imagine Adam Schiff talking to the lawyers who prepared this document and them being like “they’re saying you just hate the President and not that you’re trying to actually pass future laws,” and imagine Adam Schiff being like, “I can hate him for two reasons.” 

Thomas:         Yeah.

Andrew:         You can!  The law is just crystal clear here that as long as there is any connection to any legitimate oversight, and that oversight, by the way, is coextensive with the power to legislate at all, then these subpoenas are constitutional and valid.  So then, again in this section, pages 47-58, the House brief details two separate laws that have been passed recently that apply to the President. 

So the Ethics in Government Act, 5 U.S.C. § 101(a) require the President to file periodic financial disclosures and the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 requires the President to report all foreign gifts.  Then the document says “the committee is considering amending and/or supplementing existing legislation, see, e.g. House Resolution 1.  But Petitioners say that these existing laws and all possible amendments are unconstitutional because they (quote) ‘exercise dominion and control over the office of the President’” (end of quote).  That’s a quote directly from the Sekulow brief.

“That remarkable contention,” the House brief continues, “would have this court invalidate several existing statutes and issue and advisory opinion about every imaginable future statute.  Needless to say, it lacks any support in law.  Every President to have served since the ethics and government act became law in 1978, President’s Carter, Regan, HW Bush, Clinton, W Bush, Obama, and now Trump, has complied with its disclosure requirements without any apparent impairment of his ability to perform his constitutional duties.” That pretty clearly to me seems to drive the nail into the coffin.

Then, for good measure, there are 13 pages that respond to various procedural arguments but drive home the point that no Supreme Court ever, in the history of the republic has ever invalidated a congressional subpoena as part of an ongoing congressional inquiry.  This is just not something that courts do, nor is it something that they ought to do.  Congress has the power to investigate, to issue subpoenas of third-parties to require them to produce documents. 

Does this mean that if Republicans retake the House of Representatives they will subpoena Elizabeth Warren’s gynecologist?  It 100% does, but they’re going to do that regardless.  There is just no reason whatsoever for the Supreme Court to rule in Trump’s favor.  I’m cautiously optimistic that they won’t, and there is no reason whatsoever to think that that’s somehow going to erode any sort of longstanding norms, they’re gone.  So that’s Trump v. Mazars.

Thomas:         So this seems clear as Kushner.

Andrew:         It is clear as Kushner.

Thomas:         So when can we fast forward to the ruling going the wrong way?

Andrew:         [Sighs]

Thomas:         No, I’m with you in that it feels like … as pessimistic as we all rightfully should be and are now, I still don’t feel like the Supreme Court is a bunch of Bills Barr.  They don’t need ongoing approval from the President in the way that some of his other cronies do, so I don’t feel like they would … when is this decision gonna happen?

Andrew:         Yeah.  So oral argument on March 31st, end of next month.  Immediately-

Thomas:         So we could have these tax returns by the time Trump is already out of office is what you’re saying?

Andrew:         We will get a decision.  Look, I think this is probably going to be fast-tracked and expedited and we could get a written decision from the Supreme Court by the end of May.

Thomas:         Huh!

Andrew:         Certainly I think before Trump is out of office.

Thomas:         Not bad.  Honestly, it could be pretty useful in the election to be able to better build the case, even though the case is already there, but of just how corrupt this President is.  So that’ll be fun, a lot of journalists’ll be diving through those tax returns I’m sure.

Andrew:         Yeah, yeah.  So will we.

Thomas:         Yeah, I’ll let you do it. [Laughs]  

Andrew:         [Laughs]  Thanks!

Thomas:         Just kidding. 

Alright, we have time, I think for a little Wildcard Segment here.  So this is – what would we call this?  Are you a cop or a breakin’ down the law or what?

Andrew:         I like – let’s go with Are You A Cop because that’s how I’m gonna characterize the point that folks are trying to make on social media on this case.

Wildcard Segment: Are You A Cop?

[Segment Intro]

Thomas:         Yeah, I’ve seen a lot of people trying to do the one weird trick, and it’s not exactly a one weird trick.  It is kind of based on some amount of truth, but then again, I dunno, that’s kinda what one weird tricks are.  But anyway, are saying because Trump is suing the New York Times can that open Trump up to discovery?  What’s your answer to that?  Also describe what the suit is.

Andrew:         Yeah, I will.  And the Are You A Cop, love this segment, love that quote.  The line here is people are seizing on the “truth is an absolute defense to libel.”  So here’s what’s happened.  Donald Trump just yesterday filed, through Charles J. Harder esquire of Harder, LLP, which – that is just fantastic if that’s your real name and you’re a lawyer to be able to be like “we’re Harder, LLP!”

Thomas:         Yeah, I mean it should be Richard Harder, but that’s-

Andrew:         Yeah!  Exactly! [Laughs]  

Thomas:         So Sekulow is too busy writing nonsense briefs over at Mazars?

Andrew:         [Laughs]  Yeah, this is what you get when Jay Sekulow is like eh, I’m gonna take a pass on that.  Filed a – eh, there’s 5 pages of narration.  It is 8 total pages counting the signature page, of a complaint in New York in State court in New York alleging defamation against the New York Times on behalf of – and this is really, really critical.  The plaintiff here is The Donald J. Trump Reelection Campaign as a corporation.

So first sidebar, you can libel a corporation.  Corporations are people, my friend.

Thomas:         Yeah, let’s do some right now.  Okay!

Andrew:         [Laughs]  

Thomas:         Walmart – no I’m just kidding.

Andrew:         Look, again, it is why when we talk about certain corporations I am very clear to use opinion language like, you know, they’re a scumbag operation or a terrible company.

Thomas:         Yeah, or McDonald’s is a delicious, amazing restaurant, for example.

Andrew:         [Laughs]  Yeah, but if I were to make factual claims like every time I eat at McDonald’s I’m sick for weeks-

Thomas:         What does that have to do with how good it is, huh?  I’m not seeing a problem.  That’s just the transaction here.  I eat your delicious food and then I get sick and then I give you money and that’s how it goes!

Andrew:         [Laughs]  

Thomas:         [Laughs]  

Andrew:         So yes, you can libel a corporation and this alleges that-

Thomas:         I did wanna ask, is this the normal-

Andrew:         No! 

Thomas:         -type of company for a campaign?  I don’t recall hearing Hillary Clinton, Inc.  Is that the usual?

Andrew:         So let’s say … yes and no.  It does not surprise me that you would have a separate corporate entity formed to run the day to day business of the campaign.  You would not want the campaign to be in the name of either the individual candidate or, say, the campaign manager, because if the campaign is alleged to have breached contracts you want that to be entirely confined, you want all the liability to be confined to the organization. 

Thomas:         Right.

Andrew:         So, no, it’s not unusual for there to be a corporate structure surrounding a Presidential campaign.  It is super unusual to the point that I have never ever, ever ever ever ever seen this to say that you would want the campaign to bring a libel action.

Thomas:         Hmm.

Andrew:         Because those allegations – typically in the rare cases in which public figures claim that they have been defamed you want to prove the injury to the public figure.

Thomas:         Yeah.  I was just gonna say, though, is this some one weird trick to be like “oh, it lowers the threshold because the campaign incorporated is not a celebrity, it’s just a company nobody knows about so therefore…”  Is that any part of the calculation or why are they doing this?

Andrew:         I had the same thought as you.  But paragraph 23 of the complaint says “The campaign is concededly a public figure.”

Thomas:         Oh, okay.

Andrew:         “And the false statements were made with actual- so I had that thought too.  Then I had to pivot to, okay, what is the reason?  The reasons are as follows:  By brining the action on behalf of the campaign these funds to pay the lawyer, Rock Harder here-

Thomas:         [Laughs]

Andrew:         Come out of campaign funds.

Thomas:         Ah.

Andrew:         So if you, Uncle Clarence, have donated money to the Keep America Great, Trump 2020 reelection campaign, some of that money has gone to Rock Harder here!

Thomas:         [Sighs]

Andrew:         Absolutely.

Thomas:         So this is just extreme grift, right?

Andrew:         Yup.

Thomas:         This is Trump saying, “hey, I wanna do this basically political BS lawsuit, but [Laughing] I’m not paying for it!” 

Andrew:         Right, right.

Thomas:         It’s not comin’ out of my money!

Andrew:         And we know by filing in New York, New York does not have SLAP laws that are gonna protect against this.  It is still possible given how egregiously stupid this lawsuit is that the plaintiff’s are gonna be required to pay the New York Times legal fees in responding to this.  If they do, it’s gonna come out of the reelection campaign budget!  It’s not gonna come out of Trump’s pockets.

So understanding that the injury is alleged to the campaign, I think kind of helps us delve beneath the surface.  Because, right, as soon as this was filed 1100 people on social media were like “look, that means we’re gonna get discovery and they’re gonna be hoist by their own petard” and it’s not gonna happen in this case. 

Let’s talk about what this is with respect to.  This is with respect to a New York Times op-ed written by Max Frankel on March 27th of 2019 after the Mueller report came out, and the gravamen of that op-ed was the Mueller report and the way that Bill Barr is spinning it relate to proving collusion between the Trump campaign and Moscow, and it concludes in part one that there was no explicit collusion on behalf of the Trump campaign because on the one hand some of the people like Donald Trump Jr. were too stupid to understand what the law was, and all of the help was being provided anyway so there was no need for an explicit agreement.

Frankel added, and this is the paragraph to which this lawsuit is directed.  (Quote) “There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal.  The ‘quid’ of helping the campaign against Hillary Clinton,” which, by the way, provable fact.  Our intelligence community agrees.  “For the quo of a new pro-Russia foreign policy starting with relief from the Obama administration’s burdensome economic sanctions.”

This is really the key part.  “The Trumpites knew about the quid and held out the prospect of the quo.” (End of quote).  Look, this lawsuit is obviously stupid.  On its face, that statement could not possibly be provably true or false.  It says you didn’t have to hold out an explicit quid pro quo because you knew about the quid, that part I guess could be proven true or false, but is proven true, is in the Mueller report.  We know that, that is a conceded fact. 

And you held out the prospect of the quo, well what does it mean for a campaign to hold out the prospect?  Does it mean to intervene in the Republican party platform as we have discussed on this show?  Does it mean to publicly praise Vladimir Putin as the campaign did?  Those elements are just – it’s just not conceivable that this is gonna survive a motion to dismiss.

It’s in paragraph 21, that is B, which I read.  There are four other statements that they identify as ostensibly false statements of fact and I’m just gonna read them to you and I think it speaks for itself.  A, “The real Trump-Russia quid pro quo.”  That’s it.  They say that that is a false statement of fact.

Thomas:         [Laughs]

Andrew:         That’s a title!  Anyway.  C, “Run down the known facts about the communications between the Russians and the Trump campaign and their deal reveals itself.”  That’s C.

Thomas:         Okay.

Andrew:         D, “But no such speculation is needed to perceive the obvious bargain reached during the campaign of 2016.”  Again!  [Laughs] “No speculation is needed to perceive” is not a statement that can be proven true or false.  Finally, E, “And true to the campaign minuet, despite great resistance in Congress, President Trump has watered down the sanctions and otherwise appeased Russian interests even at the expense of America’s allies.  Call it the art of the deal.”

So look, if you are arguing – there are two reasons here why this is not going to lead to any sort of discovery of the sort that our listeners want and hope with truth is an absolute defense.  The first is this is almost certainly gonna lose on a motion to dismiss.  The complaint is laughable on its face.

Thomas:         Can you just spell out quickly why?  Because I could imagine an Uncle Clarence being “well, they are.”  You read those snippets and you get the impression that they are making a claim about a deal between Trump and Russia so why is that something that we don’t get to look at the facts for we can just dismiss out of hand?

Andrew:         Right, because at the end of the day this is an opinion article that explicitly says the problem with the Mueller report is that it said there was not an explicit deal between the campaign and Russia.  There didn’t have to be.  So here’s what everybody knew was happening even though there wasn’t an explicit deal.

Thomas:         Right.

Andrew:         So saying “you knew we didn’t have an explicit deal” is the point of the op-ed.

Thomas:         Gotcha.  And we’re on the standard of Bat Boy or whatever it is, right?

Andrew:         Yeah, that is right, let’s reiterate that.  The point of reading the paragraph in which the campaign concedes that it is a public figure is that the statements must be provably false and they must have been made with actual malice – that is either knowing that they were false or with reckless disregard as to whether they were true or false.

In other words if the statements are not provably false, that’s the “truth is an absolute defense,” or even if they are false so long as you used any kind of journalistic integrity or any kind of opinion in writing it, so long as you didn’t say “well, I either know that this is wrong or I don’t care to find out whether it’s true,” that’s the standard that you have to prove to win libel as a public figure. 

That’s why I think the New York Times is gonna move to dismiss and their motion to dismiss is gonna say even if 100% of what they’ve said in here is true this is an op-ed, it was clearly labeled “opinion, it was clearly said that there was no specific underlying agreements but that, you know, when you read between the lines you can (quote) “perceive the obvious bargain.” 

That’s what quid pro quo means in the context of this article.  It’s an attempt to redefine, to say that the language of collusion and quid pro quo was unfortunately used in the Mueller report and shouldn’t have been necessary, shouldn’t have been the focus, it was a tactical mistake because – and again, quoting – the Trumpites knew about the quid, they knew that Russia was helping their guy, and they held out the prospect of the quo.  Again, holding out the prospect, how on earth could you prove that false one way or the other? 

The only statement that is arguably provably true or false is that last one.  Trump has watered down the sanctions and otherwise appeased Russian interests even at the expense of America’s allies.  But the information to prove or disprove that is all a matter of public record.  Is it in fact the case that Donald Trump has watered down sanctions against Russia?  Has he otherwise appeased Russian interests?  I think that he has but the idea that you need discovery is not gonna help prove the truth or falsity of that claim.

The most that you could ask would be the details of the communications between Russians and the Trump campaign.  That’s also quoting from their statement.  I can tell you right now – so this is now pivoting to the second point.  The Trump campaign will say “we produced all of those communications in connection with the Mueller investigation.”  Everything else is privileged communications and all nonprivileged documents were produced in connection with the Mueller investigation.  That’s gonna be the end of it.

Thomas:         But you’re saying it won’t even get to that point?

Andrew:         I don’t think it will get to that point.

Thomas:         Likely?  But even if it does-

Andrew:         But even if it did-

Thomas:         -it’ll only be – okay, gotcha.

Andrew:         That’s the most, that’s what would happen in discovery.  You would be able to say “okay, you’ve said its false, we’re gonna prove its true, give us all your communications between the Trump campaign and the Russians,” and they’ll say see, this information is available from public sources.  See the Mueller report.  There you go.  The court will look at it and go, “notwithstanding that there may be other documents that’s not necessary for us to conclude that, on balance, there was no defamation in this case.”  At that point that would be a summary judgment in favor the New York Times.  It’s not even gonna get this far.

Thomas:         So this is a nuisance suit?

Andrew:         This is a nuisance suit, it’s a publicity suit, it is designed to do a couple of things: to rile up the Trump supporting Uncle Frank base, to gather attention in the headlines, to normalize the idea that the President should be at war with the New York Times and at war with the press.  Those are all super-duper terrible awful consequences of this administration.  I don’t mean to downplay that in any way whatsoever. 

It’s bad, Trump is bad, but the idea that this is gonna be a secret trick into getting communications between the Trump administration and Russia?  No.  It just isn’t.

Thomas:         I was gonna say, this is a nuisance suit and then just thinking about it I was like who has more money?  The entire New York Times or Trump’s campaign fund?  It might actually be Trump’s campaign fund.

Andrew:         Yeah.

Thomas:         It’s kinda scary.

Andrew:         It really is.

Thomas:         I know the New York Times is like a $100 million dollar asset, I think I read that somewhere recently.  They have a lot of money, but Trump [Laughing] raises a lot of money for his campaign.  Ugh, who knows?  Plus that’s all like cash he has to operate with, so they have the money to do a lot of nuisance lawsuits, I guess.

Andrew:         Yup.

Thomas:         Wow.  Alright, well, you dispelled that one weird trick on our “Are You A Cop” segment, so no, we’re not gonna get some self-own goal from Trump doing his lawsuit, it’s not gonna lead to revealing more stuff that we haven’t seen.  Alright, you poured cold water on that but that’s our job.

Alright, it’s time to thank our new patrons over on  I’ll go ahead and start us off.

[Patron Shout Out]

Andrew:         Thank you all so much, hope you are enjoying the bonus content.  Head on over,, sign up, give us as little as a buck an episode and you will get all sorts of fantastic goodies.

Thomas:         Yeah, including already listening to the entirety of Andrew’s lecture!  Right now.  And now it’s time for T3BE!

T3BE – Question

[Segment Intro]

Thomas:         And I lost my streak, but that’s okay, we will rebuild.  We have the technology.

Andrew:         [Laughs]

Thomas:         Or do we?  I dunno, probably not, we’ll see.

Andrew:         I think we have the technology.  Ready to go?

Thomas:         Eh. 

Andrew:         Love that attitude!  Alright!  Thomas, a state law made it a criminal offense for any state employee to (quote) “knowingly provide educational services or extend welfare benefits” (end quote) to a foreign national who was in the United States in violation of the U.S. immigration laws.  The principal of a public elementary school was prosecuted under the law for enrolling and providing education to several foreign nationals-

Thomas:         Wow.

Andrew:         -he knew to be in the country illegally.  All of these actions took place before the new law was adopted. 

Thomas:         Oh.  Okay.

Andrew:         No federal statute applied to the principal’s actions.  What constitutional provision would be most helpful-

Thomas:         Ahhh! [Sighs] This is one I totally should know but it’s like a trivia question.

Andrew:         [Laughs]

Thomas:         Where I know the answer but I don’t know if I’ll remember the specific clause or whatever?  Okay, let’s see.

Andrew:         Alright.  A) The due process clause of the Fourteenth Amendment.

Thomas:         [Inhales] Kay.

Andrew:         B) The equal protection clause of the Fourteenth Amendment.

Thomas:         I don’t think it’s that.

Andrew:         C) The ex post facto clause of Article I, Section 10; or D) The privileges or immunities clause of the Fourteenth Amendment.

Thomas:         Alright.  I am going to be monumentally embarrassed if I get this wrong and I deserve it.  Ex post facto seems like the most clear, like that’s what we’re talking about here, which I dunno, is that essentially after the fact?  We’ve talked about it, it’s the idea that you don’t just get to make a law and then punish someone retroactively because they did it before the law?

Let me just go through the fact pattern real quick to make sure I’m not missing anything that’s a trick or something.  State law, made it a criminal offense for any state employee to knowingly provide educations services or extend welfare benefits – [Scoffs] I like how they throw that one in there – to a foreign national.  Okay.  So the principal was prosecuted under the law for enrolling and providing education to several foreign nationals, etcetera etcetera, all these actions took place before the new law was adopted.  No federal statute applied to the principal’s actions.

I wanna make sure that doesn’t change anything.  So we’re talking about a State law, federal statute.  Which constitutional provision would be the most helpful?

Okay, A, due process?  I mean… due process, that’s like an okay answer, it sounds due process-ey kind of.  B, equal protection?  Really doesn’t seem like equal protection to me?  But you never – I never know if there’s like some part of these clauses that has this thingy in it, this protection in it?  But it’s just under a different name?  [Laughs] You know?  So I don’t know, I’m always worried about that.

C, the ex post facto clause of Article I Section 10.  That seems far and away the most obvious answer.  Ex post facto sounds like what we’re talking about.

Or D, the privileges or immunities clause of the Fourteenth Amendment?  Ah… I don’t know.  I can’t even make sense of what that would be.  So I’m gonna just go with C, if I’m wrong I’m profoundly embarrassed but I just have absolutely no reason to pick any other answer. 

If I was gonna pick, like, what’s the most likely?  Um… second answer?  Maybe it’s something to do with the fact that it’s a State law?  Is there some wrinkle in that?  I dunno.  Maybe D or something is some nonsense thing that I don’t know, but I’m getting way out into just theorizing wild speculation here, so I dunno.  C and then maybe A and if something is really weird it would be D, but anyway, C final answer.

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 your guess, your reasons therefore, the hashtag #T3BE, we will review, we will maybe write back to you on social media, 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 and playing the game and patronizing us!  We love you, we’ll see you on Tuesday!

[Show Outro]

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