Topics of Discussion:
- Can Joe Biden Pick Obama as Vice President?
- Yodel Mountain: Don McGahn’s Testimony
- T3BE – Question
Thomas: Hello and welcome to Opening Arguments, this is episode 366. I’m Thomas Smith, and, uh, we can’t have nice things Andrew. How’re you doing?
Andrew: [Sighs] Ahhh, yeah. It’s not a great day for me, although I am wearing a full gas mask so that will prevent me from-
Thomas: On the Senate floor?
Andrew: On the floor of the House of Representatives-
Thomas: Oh, right, sorry. The House.
Andrew: Yeah. [Laughs] Our good friend and possibly – I mean there’s a lot of competition for world’s dumbest congressman, but Matt Gaetz is a strong, strong contender.
Thomas: You know, I read an article and it’s hard. This is not what we’re gonna talk about today, but the things that these people do are so stupid. But I read an article about Matt Gaetz and it starts to look like he realized – he got to the House and got to do nothing, had no important jobs, no one cared. It was this profile I read of him and it’s just saying yeah, he realized in the age of Trump he needed to just be like a stunt man. Just be Evil Knievel out there, and now I’m gonna do some dumb-
Thomas: Charge a SCIF or whatever. That’s the only way anyone cares about anything I say. I was like well, okay, I’m still mad. [Laughs]
Andrew: Yup! No, certainly very plausible.
Thomas: Maybe that’s what’s happening. I’m just saying, some percentage of the time that we see these Republican hacks doing ridiculous, obviously stupid stuff – now it’s still the case that it says something about them and their constituents that they have to do these stupid things to appeal to people.
Thomas: But like they might know what they’re doing more often than not.
Andrew: Yeah, no, and look, the performance art aspect explains Ted Cruz tearfully talking about the elites, and you’re like dude-
Andrew: You’re a Harvard Law educated Canadian, come on!
Thomas: He’s still doing – Ted Cruz is still doing the latte sipping thing, it’s like they serve lattes at McDonald’s now!
Thomas: [Laughs] It’s not like some elite – this isn’t Frasier up in the – having a latte, they’re everywhere. Anyway, let’s get to all the bad news of today.
Thomas: Which is the whole episode. Yeah, we had a Simpson-esque mishap. We thought it said “No! Live show in Seattle!” but it actually said “No live show in Seattle.” We’re regrouping here on this live show in Seattle idea and, um, given all of what we’re gonna talk about today with the coronavirus and travel restrictions, it may just not be the right time. [Laughs]
Thomas: So we were kinda thinking maybe we push that off.
Andrew: Yeah, we’re sorry. If you saved the date and you were looking forward to seeing us in Seattle, what we do not want to have happen is what [Laughing] I’m going to describe in the main segment of the show! Look, we don’t know what the state of air travel is gonna look like in a couple of weeks.
Thomas: Yeah! Yeah. We really don’t! [Laughs] I mean it could be nothing or it could be mass hysteria, dogs and cats living together.
Andrew: Right. So we’re gonna push back our Seattle live show. As soon as we know, as soon as we have more information about travel we will reschedule it.
Thomas: We’re gonna see who all survives the first wave.
Thomas: And if there’s enough OA listeners-
Andrew: Right, among the zombies.
Thomas: [Laughs] Yeah. There’ll be a zombie-seating level, that’ll be standing room only. I don’t think zombies – You don’t see zombies sit down a whole lot.
Thomas: They’re like oh, gosh! I gotta take a load off, I’ve been zombie-ing all day, it’s just tiring!
Thomas: Yeah, I think it’s for the best. Honestly just the travel, planning on flying. I know my wife’s parents were all worried about all the flying we intend to be doing.
Thomas: It’s true, there is coronavirus. I for one think I already had it, but that’s just me! [Laughs]
Andrew: Right! Yeah, so now that makes you either immune or, you know, Typhoid Thomas, so, uh-
Thomas: How – What percentage would you put? I’m telling you, I’m sorry to be a tinfoil hat guy because this was months ago that I was sick, right? I can’t even remember.
Andrew: Yeah. You’re patient zero.
Thomas: But I went my whole life, my whole 33 years of life, I have never ever had a cold and a fever symptoms at the same time in that way ever until the same year that coronavirus is a thing that has those exact symptoms! I’m just saying, it’s weird. Anyway, this is now gonna turn into an Alex Jones type show.
Andrew: [Laughs] Alright! [Alex Jones Impersonation] So I got a diagram here!
Thomas: [Alex Jones Impersonation] I got the coronavirus!
The good news is we can sell you these supplements that’ll really heal everybody!
Thomas: Okay, so that’s depressing thing one.
Thomas: Depressing thing two is I suppose we should bid official farewell to the best candidate in the race.
Andrew: [Sighing] Yup, yup!
Thomas: OA favorite Elizabeth Warren. I just wanna say, you know, there was a good 10 minutes there in the middle of that race where it just felt – it even broke frozen Negatron Thomas, it thawed my frozen Negatron heart. There was a brief 10 minutes where I said Andrew? Is this really gonna happen, Andrew? Are we, can we have nice things? Can we really, as a country, have nice things?
And Andrew was over there because he’s Optimist Prime, was like oh yeah! For sure! We always have nice things, everything’s nice, Elizabeth Warren of course gonna win.
10 minutes and the Buttigieg was like “well how’re you gonna pay for your healthcare plan?!” A question that doesn’t seem to affect anybody else but Elizabeth Warren, and then everything cratered overnight and never came back.
Andrew: Yeah. That prediction was good old fashioned swing and a miss on my part and look, after the Tuesday results, as I have said on social media and publicly, it obviously is the right decision to drop out of the presidential race when you finish 3rd in your home State.
Andrew: That does not mean I am not sad about that. Lots of people have lots of feelings about the state of the presidential race right now, but we’re doing a little bit – we’re pouring one out on the curb for Liz today.
Thomas: Yeah. Really sucks. Isn’t it weird, just coincidentally, we’re gonna go now 46 out of 46, all men. Is it just coincident I bet. Has nothing to do with gender or anything, just didn’t happen to be 46 out of 46 times women didn’t have the best ideas, I guess. Is that… what do you think?
Thomas: Weird coincidence! Statistical anomaly!
Thomas: Just seems weird. Alright, enough of that.
Andrew: Oooh, enough of that.
Thomas: Let’s talk about – let’s go to our first segment, it’s a classic OA question from the crowd and we’ll do that right now.
Can Joe Biden Pick Obama as Vice President?
Thomas: So from lots of listeners and people across the internet. Andrew, they wanna know can Joe Biden – Joe Biden, wasn’t he Obama’s VP? Why is he in the news? Oh! He’s still, wow! That old guy is still in the mix, okay. Can Joe Biden pick Obama as VP? Could he pick AOC? Would they just get skipped over in the line of succession?
Andrew: Yeah, I’ve seen this question a lot and I think people are sort of confusing the fact that you can nominate someone who is ineligible to be President to serve as Secretary of State like Madeleine Albright for example, or a former President and they get skipped over in terms of the Congressional Presidential Succession Act, but this is a straightforward constitutional question, it comes from the 12th Amendment.
Can I do a little sidebar on the 12th Amendment because it’s kind of fun!
Thomas: What, am I gonna stop you? [Laughs]
Andrew: Well, you could try!
So the 12th Amendment was ratified in 1804, before 1804 Presidential electors got two votes and they didn’t distinguish between President and Vice President.
Andrew: So whoever finished first got to be President and whoever finished second got to be Vice President, and that was stupid and terrible!
Andrew: That meant in 1796 John Adams was elected President, his rival, Thomas Jefferson, was elected Vice President and then their respective Vice Presidential candidates, a guy named Thomas Pinkney finished 3rd and Aaron Burr finished 4th.
Then the parties got together and were like okay, look, all of us are going to make sure we vote for the President and the Vice President with our two electoral votes, got it? So election of 1800, The Federalists re-nominated the incumbent President John Adams and for some reason they replaced his Vice Presidential candidate Thomas Pinckney with his brother?
Andrew: A guy named Charles Cotesworth Pinckney? I would love to be at that house for Thanksgiving in 1800, that would’ve been amazing!
Thomas: I love back when elections were that haphazard. Were you gonna be Vice President? Was I? Were you- hold on-
Thomas: [Laughs] Mom, tell us which one! I said I was gonna be Vice President! But really, for early parts of our system it’s funny how some things were like really not specified! [Laughs] Just kind of lax.
Andrew: Well look! The whole you could just kinda wander into the White House-
Thomas: Yeah! [Laughs]
Andrew: And be like “I’d like to see Abe about pardoning someone,” right? That was kind of fun.
Andrew: So Federalists went with Adams and Pinckney, and the Democratic Republicans re-nominated Jefferson and Aaron Burr. Again remember everybody decided okay, we’re not gonna screw up the whole President/Vice President thing, so they all cast all their votes for President and Vice President and Jefferson and Burr finished tied with 73 electoral votes! Thomas Jefferson was like okay, that makes me President, right? But Aaron Burr was like, well… kinda. There’s no rule that says a dog can’t play basketball!
Andrew: So it kinda makes me the President! The Federalists, proving by the way that, you know, you don’t need – it helps – but you don’t need Russian operatives spreading chaos. The Federalists were like great, we are going to get behind a plan to make Aaron Burr President. That’s what happened for 35 ballots in the House of Representatives! Because-
Andrew: Jefferson and Burr were tied and then finally Alexander Hamilton, the hagiographies will say, you know, he did what was best for the country. Other biographies will say Alexander Hamilton hated Aaron Burr? [Laughs] But either way on the 36th ballot Hamilton convinced Federalist delegations in three States to abstain, which meant then that a majority of States would go for Jefferson, so then the Jefferson votes counted or they counted as no candidate States. Instead of blocking – I believe actually it was Maryland.
Instead of blocking Jefferson getting the majority he went from 8 out of 16 States, he needed 9, to 10! So that’s how we got President Jefferson, Vice President Burr. Obviously we’d exhausted all the possibilities of what a gigantic clusterbomb that was, so before the next presidential election we amended the Constitution. The 12th Amendment exactly specifies how the President and the Vice President get voted for.
You don’t just have the two-vote system, you vote for President, you vote for Vice President, and relevantly to this question, the last sentence of the 12th Amendment says “No person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.” So this is like a you’ve gotta be 35.
Andrew: The AOC question is relevant there ‘cuz she’s not 35. So no, Biden can’t pick Obama, he can’t pick AOC, he can’t pick Madeleine Albright. He’s got to pick somebody who can be eligible to be President, and of course that makes sense.
Andrew: From the nation’s inception we envisioned that non-citizens could serve in the President’s cabinet, could serve in executive offices, but not as President of the United States.
Thomas: Yeah, I mean it’s not that outlandish to think like oh, maybe it just skips in succession.
Thomas: But, you know, makes sense.
Andrew: Yeah! That’s why, because people I think confuse the Presidential Succession Act, and look, rightfully so, because the Vice President’s main job is to be there when the President can no longer fulfill his job.
Thomas: Pretty much. Unless you take Joe Biden’s telling of his time with Obama, then he did everything, actually!
Andrew: Well, or Mike Pence you get to be in charge of coronavirus.
Andrew: So there you go!
Thomas: Alright well that was a pretty straightforward answer. I guess it’s time to get infected and talk coronavirus.
Thomas: So, yeah, we’re gonna talk about coronavirus. [Laughs] I suppose there must be a legal component to this? Or are you gonna put on your doctor … mask?
Andrew: [Laughs] Yeah, I already make pretense to expertise that I don’t have on this show, I am not going to be diagnosing illnesses as well.
No, I thought this was a fantastic issue that I saw, came up in the Opening Arguments community, came up when you and I were discussing the Seattle live show. The legal aspect is this: The question is, when a contract contains a force majeure clause, how does that interplay with all of the issues that are arising in the world right now due to coronavirus?
Again, I wanna give a shout out here to my associate, Morgan Stringer who’s amazing and awesome and wrote a valuable memo and pulled a bunch of cases that I’m going to reference in this segment, so thanks Morgan!
What’s force majeure? Force majeure is what we think of when you see something in a movie or on TV and they say oh well the insurance didn’t have to pay out because that was act of god. Force majeure meaning-
Thomas: Yeah, we’re thinking it’s an Armageddon scenario-
Thomas: It’s a volcano in LA scenario.
Andrew: All of that, yeah.
Thomas: Any of the typical movie – Twister?
Andrew: [Laughs] A typical force majeure clause will be in a contract between the parties and it will say (quote) and this is just – I pulled one up here. “Failure or delay in performance of the contract caused by war, riots, insurrections, proclamations, floods, fires, explosions, acts of any governmental body, terrorism, or other similar events beyond the reasonable control and without the fault of such party.”
First, let me add that you may have a contract with a force majeure clause that specifically says “epidemics, pandemics, disease outbreaks.”
Andrew: That may be a specific line in a clause. Airlines, for example, often have more specific force majeure clauses because they face unique issues. So when you buy a ticket online and you are reading the small print – because of course you’re reading the small print, I’m not the only one who does that, right? That ticket will excuse – you say alright, I’m flying out to Houston, here’s my $400 bucks for the ticket, and in the fine print it will say “we don’t have to perform on this contract if there’s a force majeure, there’s an act of god,” there’s all the stuff I just read.
Here’s one airline for example. It says “political unrest, embargos, unsettled international conditions, riots, air traffic control issues, and any other occurrence not reasonably anticipated, foreseen, or predicted by the airline.” I wanna add – the real legal question here is suppose you don’t have a contract that explicitly excludes disease, pandemic, epidemic.
Could a hotel – you book a hotel or an airline out to Seattle or something like that and then all of a sudden you’re told nope, you can’t get on that flight because we’re not operating it due to coronavirus, we’re not gonna put you up at our hotel because we’re not accepting people from out of town due to coronavirus. Do they have a valid legal excuse to do or not do that?
The obvious answer is it depends on the contract.
Andrew: But assuming that the contract is something like what I’ve read, then it will become a really fact specific inquiry on a number of different areas. I thought it would be interesting to talk about that, and here’s where we get our first Simpsons reference for the day!
Thomas: Oooh! Well, I mean, I already tried to do one earlier-
Andrew: It was a good one.
Thomas: It wasn’t that good, so.
Andrew: This is a 2008 U.S. District Court case called [Laughing] Macromex Srl. V. Globex Corporation.
Andrew: So as I am reading this opinion all I could think of was, you know, the Hank Scorpio and the Globex Corporation, that was such a great episode.
But this was – a lot of these recent cases, you might remember 2008 was when everyone was afraid of bird flu? It was actually like 2006 I think when bird flu really became a thing. So there are a bunch of these force majeure cases that occur in the mid to late 2000s-
Andrew: That all have to do with bird flu.
Andrew: The Globex Corporation was an American company that sold food around the world. One of those things that they sold was chicken parts. They had a contract with this company, Macromex, which was based in Romania to sell it chicken parts. The contract required Globex to send them 62 containers of chicken parts by May 29th, 2006, but-
Thomas: Do you really not specify which chicken parts?
Thomas: You’re just like any… any.
Andrew: No, I mean I am sure the contract specifies a certain number of thighs versus wings versus beaks, whatever.
Andrew: The court does not get into that level of specificity. So obviously during avian flu breakout, it was really really hard for Globex to get together enough chicken parts to send to Macromex, so they failed to complete. They sent like 45 of the 62 containers of chicken parts.
Then the next week Romania announced, to try and contain the spread of bird flu, that no chicken or chicken parts could be imported into Romania unless it was certified by letter-
Thomas: Hmm. [Laughs]
Andrew: -that [Laughs]
Thomas: [Impersonation] I hereby certify these chicken parts! Tasted all of them, looking good!
Andrew: [Laughs] So Globex tried to get as many containers in before the deadline and they didn’t, and then Macromex brought- because the contracts provided for arbitration, an arbitration that said hey, you’ve breached the contract and you owe us a whole bunch of money. Globex’s argument was force majeure. They said look, the shipping delay, the fact that we didn’t get all of the chicken parts to you-
Thomas: Believe you me, we wanted to send you those chicken parts!
Thomas: Those chicken parts had your name on them!
Andrew: [Laughs] Right, exactly! Look, time is not of the essence in sending chicken parts, you knew that there might be some delay here and there and before we could make good on it your government imposed an embargo on sending chicken parts into Romania and therefore we’re excused from having to send chicken, because we can’t send chicken parts into Romania!
Thomas: Seems reasonable to me.
Andrew: It does until I give you the important fact that I have strategically omitted so far.
Thomas: Oh. You devious lawyer!
Andrew: Yeeah, I know. The story is better this way.
So in general, the principles that a court will use, and this was an international contract so it is from the U.N. Convention on Contracts for the International Sell of Goods, but I wanna tell you this baseline analysis applies in most force majeure cases. The court will look at four elements. One, the impediment must be beyond the breaching party’s control. That makes sense. Two, it must be unforeseeable by that party. Three, it could not be reasonably avoided or overcome by the party; and four there must be causation, that is that the nonperformance was due to the impediment.
In other words, let’s think about that in terms of coronavirus. Coronavirus is beyond your control, it is unforeseeable. We’re gonna talk about element number three in a minute, but also you couldn’t say oh, well I’m really freaked out about coronavirus so I’ve decided not to deliver that motion to dismiss that I wrote for my client.
Andrew: It has to actually be caused by the coronavirus. You put all of those elements together, one two and four very clearly bird flu, chicken parts, Romanian government, all seems to be a problem. The reason Globex lost in arbitration was there was – it was possible to avoid the harm.
Andrew: In particular, they could substitute performance. So Macromex told Globex hey, instead of shipping – we get it, Romanian government, whatcha gonna do? But what you can do is the Georgian government, that is the ex-soviet union-
Thomas: They’re big fans of chicken parts!
Andrew: Right, yeah as it turns out the nation of Georgia has no embargo, so send it, we’ll go pick it up, you send the chicken to Georgia and we’ll get it from there. Globex said [Sighs] we’re not sending it to Georgia. No.
Andrew: So the arbitrator said look, you could have gotten around this embargo. The reason I strategically told the story that way is because as we look to what’s happening with coronavirus, very often just in the same way that asking likelihood of success on the merits gets you to 90% of the answer on injunctive relief? I would say asking was this an impediment that could not be reasonably avoided or overcome-
Andrew: -is gonna get you 90% of the way to your coronavirus answer.
Thomas: Or just any force majeure question?
Andrew: Or any force majeure answer. That is, is there a way around it? For example, a case that goes back over 100 years is a case called Int’l Paper Co. v. Rockefeller, yes that Rockefeller. The contract to International Paper said “you’re gonna make paper from this particular kind of tree. The Lorax was involved, it’s a complex case. The trees specified in the contract were completely destroyed by a forest fire.
Andrew: So the court said, um, yeah, you can’t go to Georgia, the impediment was insurmountable. The real question is is there a reasonable alternative that can be done to complete the performance or is the performance impossible? Again, super easy to see how that works in a case like this. If the airlines aren’t flying because the federal government has put a moratorium on it, then [Laughs] you can’t put a plane up in the air when the federal government says you can’t put a plane up in the air. There’s no work around for that.
On the other hand, if it’s just that it’s really, really hard to get – let’s say it’s difficult, lots of our cleaning folks – say it’s a hotel room. If the hotel says “we’re not giving you a room because the law prohibits, there’s been an executive order, the national guard has been turned out and we’re prohibited from giving you a room because you’ve gotta be quarantined,” that’s impossible.
On the other hand if it’s “well, all of our cleaning staff is home sick so we can’t run the hotel, we can’t get the rooms clean,” that’s probably not impossible. You can hire additional cleaning staff, shortages in cleaning staff is not the kind of thing that becomes unforeseeable. So it really does kind of depend on the level of granularity.
Another good example, during the bird flu cases involved egg companies. There were a lot of lawsuits back and forth by and between companies that sold eggs because of the bird flu. In general the rule is that change to the market as a result of bird flu – as you might imagine when bird flu was in full swing people bought a lot less chicken eggs because they didn’t wanna buy a giant self-contained orb of potential death.
Andrew: So a lot of egg companies then breached their contracts and they said look, we expected to get $1 million in egg revenues this month, we’ve had a million-plus every month for the last 30 years, but nobody’s buying any eggs so we’re not buying – and this particular case was Rexing Quality Eggs v. Rembrandt Enterprises.
They’re gonna buy a dryer, a piece of equipment from Rembrandt Enterprises, and Rexing was like look, nobody bought our eggs so we’re not gonna buy this piece of equipment now. Rembrandt sued, and as a result the court said no, wait, an economic downturn, even if it’s an economic downturn caused by the flu, is not the kind of thing that’s unforeseeable or outside your control. The price of eggs fluctuates, you’re in the egg business. You don’t get to say all of the consequences that flow from an unforeseen event relieve you of all of the responsibilities, it’s just the question of did this particular event relieve you of that particular responsibility? The court said (quote) “Changes in market demand are foreseeable.” (End of quote).
So those are your guiding principles. The major question is does the unforeseen event render an insurmountable impediment to performance or is it just inconvenient? More expensive? Not planned for? [Laughs] What the courts really do call a surmountable impediment?
Andrew: That’s where it’s gonna come down to. So let’s talk about this in practical terms. Don’t take legal advice from a podcast, you’ve heard the disclaimer on the show, but if you’re sitting there thinking oh, well X company that cancelled my reservations, cancelled my flights, whatever, holds all the cards? They might not hold all the cards.
Thomas: Hmm? They might not hold all the – Is there not more to that?
Andrew: Yeah. That was- they might not hold all the cards. It may be a case where you look at it and say look, you’re required to try and perform and this is not an insurmountable obstacle. In some cases it might be.
Andrew: The FAA grounds all the airplanes, I’m sorry you’re not getting your money back from United. They’ve got a really, really good insurmountable impediment, namely the federal government will shoot them down if they try and fly planes.
Andrew: But yeah, we didn’t get our laundry in this week so we can’t give you a room or we can’t change the sheets or whatever, that might fall into a very different category.
Thomas: Yet another reason why we’re postponing our live show is that if anything happens there’s gonna be no refunds for travel potentially?
Andrew: Yeah, absolutely. [Laughs]
Thomas: Alright. Let’s wait until the summer when the virus is just sleeping for a little bit.
Andrew: Yeah, the “I’m sure the virus is gonna summer off the coast of the Mediterranean” or something like that.
Thomas: Yeah, it’ll come back with a nice tan.
Thomas: And it will … kill a bunch of people. [Laughs]
Andrew: Maybe we shouldn’t joke about that!
Thomas: Ah, good time.
Andrew: Good times!
Thomas: [Laughs] Okay, well that’s force majeure. Are we on to the next segment?
Andrew: We’re on to the next segment! How ‘bout that!
Thomas: Wow! Talk about a not even a Wild Card, we’re definitely getting to this one, folks! Okay!
Yodel Mountain: Don McGahn’s Testimony
Thomas: So it’s Andrew’s Wrong. I wanna add in, I would do a Thomas is Potentially Wrong about the music episode. But we’re going to be speaking to the two people involved in that algorithm next episode, so I’ll hold off but let it suffice to say, that Vice article was very confusingly written and I’ve seen a number of different ways of interpreting it and I may have been wrong on my “My Sharona” example because if they used 8 notes, but then somebody was saying it might make more sense if the Vice article had switched it and it was 12-notes and 8-beats.
Yadda, yadda! Essentially, it was confusing, but don’t worry about that because we’re gonna speak to the actual folks involved next episode.
Thomas: I’m postponing my Thomas Was Possibly Wrong about something I said. But Andrew, you’re not. [Laughs] This is your turn slash yodel mountain. What were you wrong / yodeling about?
Andrew: Yeah well here’s what I was wrong about. I said that the D.C. Circuit would require Don McGahn to obey a Congressional subpoena.
Thomas: Oh this one.
Andrew: I was not wrong about the justification for that. I said the argument being advanced by the President is nonsense.
Andrew: That has been soundly rejected for 36 years in this country, and the D.C. Circuit absolutely will not embrace the position of absolute immunity. I’m right on that. I was wrong, on a 2-1 decision that we have been told, I’m gonna get to this on actual collateral litigation. We know that the House intends to move for a full en banc review of this decision, that’s the entire D.C. Circuit. That deadline is March 9th or 10th, so literally within the next couple of days they will move for a full review. The D.C. Circuit will grant it and will reverse this decision. This decision is one of the most inexplicable I have ever seen in my entire lifetime.
Andrew: So let me go back to – I was wrong on the outcome.
Thomas: Well I think, what you’re wrong about is the country having a leg – democracy surviving? Is that what you were wrong about? You were wrong about our system working?
Andrew: Uh, that may be.
Andrew: The D.C. Circuit did not try and argue for absolute executive privilege and immunity to all current, former, tangential, executive branch officers to testify. Instead they invented an argument that’s maybe even worse than that. It’s truly mind boggling. The argument was that the House of Representatives lacks Article 3 standing to bring this lawsuit in the first place.
I wanna give credit, I used this joke during our live Q&A, I’m going to repeat it again because it is so dead on, it is so perfect. An anonymous AUSA friend of mine who [Laughing] texted me and said “do you think I can send an anonymous letter to the D.C. Circuit with the Latin definition of ‘subpoena’ for them?”
Thomas: Lawyer humor! [Sarcastic Laughter]
Andrew: I know, I know.
Thomas: So funny! Oh, explain to the non-lawyers why that’s such a riotously hilarious joke, Andrew.
Andrew: Because subpoena is “sub” meaning under, and “poena” meaning “penalty.”
Andrew: The whole point of a subpoena is if you don’t comply with it it can be enforced. There is a penalty for not complying. This entire decision is basically like well, yeah, but not if it’s the Congressional Oversight Committee trying to get information about Donald Trump.
Thomas: You know, because you’re such a lawyerly lawyer, Andrew, and you’re so composed, you’re usually a ray of sunshine. I just wanna emphasize, and some people on the Facebook group may have seen. This decision really hit one P. Andrew Torrez like a ton of bricks. You don’t often have public meltdowns, you leave those to me, but I just wanna emphasize for people. If the listeners had been able to get your unfiltered first reaction to this decision, what might it have included?
Andrew: 11 minutes of screaming?
Andrew: This is- I cannot tell you. Again, not just because of the result. The result is super bad. One of the things I think you’ve noticed that I think our listeners know is that it bothers me to get to the right result by the wrong methodology? There’s nothing worse than that… [Laughs]
Thomas: Than getting the wrong result by the- no.
Andrew: Conjunction of all the evil stars of the universe where you get to a terrible result that’s objectively bad for the republic and has zero legal basis whatsoever.
Andrew: I would like to go through just how bad this decision is. First I wanna say, you will hear in adjudicating these standards that the D.C. Circuit just smashed together cases that have no bearing, they ignored wide swaths of other doctrines and I’m gonna illustrate that. This is not just me saying I wanted McGahn to have to testify. I did, I still do, but this is not just that.
Thomas: Well this renders subpoenas meaningless. Oh, you’re gonna go into it, okay.
Andrew: Absolutely! In fact, let’s do that one right now because I’m gonna go to some of the specific law, but first what I wanna do is I want to read you what the court actually said about how this is going to work in practice and then if we sub in Thomas Smith for Don McGahn you can see how preposterous this is. So this is-
Thomas: Yeah, I like to be able to- just put my name for anything and it looks preposterous, I agree!
Andrew: This is page 12 of the opinion. I’m gonna go back to the previous 11 pages, talk about how they get there, but then this is the majority’s justification for why it’s a good thing that this is not a justiciable political question. Again, they don’t use that language because if they tried to use political question doctrine they would have quickly run up against the fact that it does not apply in this case, this is not a nonjusticiable political question.
But they say there’s no Article 3 standing because this is Congress being mad at the President and in order to resolve that dispute you would want some kind of neutral third branch of government-
Andrew: -and we don’t know where you would find that. You think I’m kidding? Here’s what they say:
(Quote) “Or simply consider this case. If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us,” (and there’s a cite to the oral argument transcript, which I have to tell you is not available online otherwise I would have read it).
Andrew: “It would come right back to court to make McGahn talk.” Again, that’s why I would’ve done that because I’ve often been in an oral argument where a judge has said so if we enforce this subpoena and the witness says I’m not gonna answer would you come back here for additional relief? I just sort of picture the House lawyers being like … well, yeah. We would expect that a witness would obey when a court tells him to do something, and if they don’t do that yes we would come back to the court to say um, he’s not obeying, time to hold him in contempt.
But this panel seems to think that, like, that’s a crazy outcome. They then say, and again, this is word for word. (Quote) “The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often.”
Well yes! That’s what happens when you defy a subpoena! Literally, their public policy argument here is “well, if we enforce this McGahn isn’t really gonna listen and then you’re just gonna come back and make us enforce it again.”
Thomas: We don’t wanna have to do work, really, you know?
[Commercial – policygenius.com]
Andrew: So seriously, swap in look, if we order Thomas Smith to appear what happens next? Thomas, compelled to appear, asserts that he is the ambassador from the fairy kingdom in response to the prosecutor’s questions, the prosecutor finds those assertions baseless. In that case, the prosecutor assures us, she would come right back to this court and order us to make Thomas talk.
Thomas: What, are we gonna get up? Put on our robes? Sit on our bench? Again?! Come on!! Case closed.
Andrew: It is staggering that that is written in print.
Thomas: Now is this a direct result of Trump and/or McConnell putting losers in the judiciary or no?
Andrew: This is a 3 judge panel and-
Thomas: So these hacks predate the latest wave of hacks?
Andrew: One George W. Bush appointee, one George H.W. Bush appointee.
Andrew: If you ask me, that also factors in. This is not Neomi Rao, if Neomi Rao wrote this you’d be like okay, well, this is just what happens when you give a gameshow host the power to appoint judges. I think there are two things: I think you see, and I don’t know what combination of these two factors are at play here.
Number one, you see a judiciary that feels weary by the encroaching power of the executive and just says “I didn’t sign up for this, I can’t be on the front lines of trying to adjudicate the fact that we have a corrupt President that for the first time in American history has ordered the executive branch not to follow the law and I just don’t know what to do about it.”
Or, alternatively, more sinister and more dangerously, you have “oh, well… yeah. It’s all just political power now and everything is up for grabs and I’m gonna cheerlead for my team.”
Andrew: There’s some combination of that, I don’t know these judges so I can’t tell you to which degree. I can tell you – so having told you that the policy rational is that laughable, the law is worse.
Andrew: So you would think, there are no citations – there’s a citation to Welch, which is a political question case, but by and large they don’t say this is the political question doctrine. What they say is “accordingly, we must ask whether adjudicating this dispute is (quote) ‘consistent with a system of separated powers’ and whether the claim is (quote) ‘traditionally thought to be capable of resolution through the judicial process.’” Put a pin in that one.
The primary case that they cite again and again is a case called Raines v. Byrd from 1997. That might ring a bell for you because we have talked about it in a couple of prior episodes. The Raines v. Byrd case is the line item veto case-
Andrew: -that was brought by 4 senators and 2 representatives in which the Supreme Court said no, you gotta come back here with the whole Senate or the whole House, but you can’t just come out with a couple of you guys because that’s not a particularized injury. I think you can see that that has absolutely nothing to do with enforcing a congressional subpoena. Here we have the committee that was injured! We have the entirety [Laughs] Well, we have the majority, of the House Oversight Committee as authorized by a vote from the full House of Representatives. There’s no Raines v. Byrd problem, it really is just cherry-picked from the language of that case.
Again, the standard that is cited here is first, you know, who are we to intermediate between the branches?
Andrew: Again, pages 13-14, I’m gonna read this to you. “Why compromise when the federal courts offer the tantalizing possibility of total victory?” Uh, why would the Congress compromise is that.
Andrew: “And why would the Executive Branch negotiate if it can force litigation and ‘delay compliance for years’? Letting political fights play out in the political branches might seem messy or impractical, but democracy can be a messy business, and federal courts are ill-equipped to micromanage sprawling and evolving interbranch information disputes.” The citation here is to a law review article, you can put a pin in that one because I want to end with it, because they are badly misusing a law review article from a guy named Josh Chafetz. I have reached out to him, because this is virtually-
Thomas: Is it normal to cite a law review article?
Andrew: It is incredibly rare for a decision to cite directly to a law review article in the text of the opinion, let alone the more than dozen times that this case does so. Sometimes you will see like a see also to the law review article in the footnotes, but no, Chafetz is cited more than any other case in this decision.
Andrew: And this, by the way, this guy, it’s one “f,” there’s no relationship to the corrupt congressman from Utah. This is a Cornell law professor, Josh Chafetz who wrote a law review article called “Executive Branch Contempt of Congress” in 2009 and, in fact, since we’re doing – I was gonna save this to the end.
Since we’re doing Chafetz, let me skip to that punchline, which is- this is a 70 page law review article. This is a scholarly work in which he argues that these kinds of claims should be nonjusticiable and then on page 1,152, so 69 pages in, he concludes with:
“If these disputes should not be in the courts than what can Congress do when an executive branch officer refuses to comply with a subpoena? Each House has a Sergeant At Arms and the Capitol building has its own jail. The Sergeant can be sent to arrest contemnors and hold them in custody until their contempt is purged” that is, until they comply with the subpoena.
“Undoubtedly the contemnor would then seek habeas relief from a court, but such relief should be narrowly circumscribed. The court could inquire into whether he was in fact accused of something that properly qualifies as a contempt of Congress” here McGahn would be disobeying a lawful subpoena, “but it could not inquire into the merits.” This is Chafetz’ words. “As noted above, defiance of a Congressional subpoena is clearly within Congress’s contempt power, the House of Congress itself then, not a court on collateral review is the proper tribunal to adjudicate an executive privilege defense.”
Now there is very little chance in my mind that the House of Representatives is going to send the Sergeant at Arms to arrest Don McGahn, throw him in the House jail and then preside over a mini-trial of itself as to whether he has to testify or not. That’s not gonna happen. But that’s what Chafetz says should happen, and for the court to adopt Chafetz’s reason in the holding but not flag oh hey, by the way, if this is what Chafetz says the remedy is, if you’re gonna do that we’re gonna stay out of anything that the House does. “Put him in a deep dark jail in the bottom of the Capitol, we don’t get to say anything about that!” Shows the degree of cherry-picking and misuse.
Like I said, we’ll see what Chafetz says, replies to me, but if I were Josh Chafetz, I have read his law review article, I would be incensed at the court’s use of it. I mean, I would be a little bit flatter, but mostly incensed because the article argues for shifting the power not to nothing, but shifting the power from the courts to Congress with no ability for the courts to inquire into the merits. And I am positive this same panel, if the House Sergeant at Arms were to go and arrest Don McGahn and throw him in jail would 100% grant a writ of habeas corpus.
Would say oh yeah, no, we can’t have Congress throwing executive branch officers in jail, and you could use all of the crap that I just read to you as justification for why you now have to free him.
Andrew: Then the answer would be how can Congress enforce its subpoena? And the answer is it can’t. Unless you’re not a member of the executive branch! If you or I defy a Congressional subpoena, they can absolutely go back to court!
Thomas: Shoot us on sight! [Laughs]
Andrew: Possibly! It is a nonsense opinion.
Thomas: What’s the whole banc gonna do?
Andrew: So the full D.C. Circuit is going to absolutely reverse this opinion.
Thomas: I remember a confident Andrew Tortoise said that last time!
Thomas: So, no, but it’s different because this was just a bad draw of the panel?
Andrew: It was not the worst possible draw, it surprised me from the draw. But what I’m worried about is the existence of a prior panel opinion will make this case seem more potentially-
Andrew: -like there really are two sides before the Supreme Court. Given that the entire game before the Supreme Court is shame John Roberts, having John Roberts craft some kind of “Well, what we’re going to do is reinstate the panel opinion,” and phrase it behind a whole bunch of legal nonsense that the mainstream press will be ill-equipped to parse becomes a real possibility. That’s what I am worried about.
I wanna end with this, because this is the standard the D.C. Circuit has set forth. Again, there’s no question this cannot be the law. It will become immediately obvious why this cannot be the law.
Andrew: But here’s what the D.C. Circuit says: “In this case, the Committee’s dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the ‘rights of individuals’ or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its ‘constitutional rights and liberties’ Nor does the Committee seek the ‘production or nonproduction of specified evidence . . . in a pending criminal case’ — the ‘kind of controversy’ threatening individual liberty that ‘courts traditionally resolve.’”
The citation that this opinion gives for that proposition is to United States v. Nixon, 418 U.S. 683, 696-97. If you’re thinking I know there was that Judge Nixon- no! That’s Richard Nixon! This is the Nixon tapes case in which the Supreme Court said Richard Nixon had to turn over the tapes, that the D.C. Circuit is citing for the proposition of well, you know, in Nixon there was a prosecution so yeah, that makes it different.
That is the most bonkers and … ill equipped reading of U.S. v. Nixon that I could possibly imagine. If you submitted that at a paper at the worst law school in the country you would get a D- on that.
Andrew: Because the passage in U.S. v. Nixon that this opinion is quoting was a passage that says that there was a unique setting in the Nixon case because both the special prosecutor, which was provided for by Congressional statute, but the special prosecutor was an executive branch employee, and the President was the head of the executive branch, so Nixon says, and let me quote this directly:
“In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the executive branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation and the unique facts of this case to conclude other than that the special prosecutor has standing to bring this action and a justiciable controversy is presented for decision.” So let’s pause on that.
There is no independent prosecutor statute anymore, so any prosecution of Donald Trump would have to be authorized by the Department of Justice, and the head of the Department of Justice is of course the Attorney General, who’s been appointed by the President. So if the D.C. Circuit is to be correct then literally there is nothing to stop Donald Trump from doing what he’s done! They’ve said yeah, you get standing if there’s an actual prosecution, and then the question would be right, but what if the President tells the Attorney General not to prosecute him?
Andrew: And then the D.C. Circuit would be like, “Well you get standing if there’s a prosecution!” It is mind boggling that you would have more standing for an executive branch versus executive branch prosecution, which raises unique political question issues. Are we going to intervene in one executive branch official who ostensibly reports to another one? That actually is a potentially interesting question, which again the Supreme Court had no problem saying, yeah, but come on! [Laughs]
The Supreme Court said that might be interesting, but no, this represents a real case or controversy. This D.C. Circuit opinion says that narrow area represents a live case or controversy, but you know what isn’t a live case or controversy? The Congress of the United States serving a subpoena on an executive branch official. It’s a core area.
I have invited, I extend that invitation, if there is a practicing lawyer, law professor, who can defend this opinion in good faith we’ll have you on the show.
Thomas: Well I was gonna say a minute ago, is this like the climate change of law? Where it’s like there aren’t two sides to this, except that Republicans have made it so there’s two sides to this? Then the extension of that would be maybe we shouldn’t have some idiot on to debate an obviously wrong thing, we should just say this is obviously wrong.
Andrew: I feel very comfortable that unlike someone being able to obfuscate over the scaling of the Y axis on a graph, I could demonstrate that any defense of this case is pretextual. But it’s a good point.
Thomas: Those are harsh lawyer words, by the way. That sounded like – to non-lawyers that’s like you barely said anything. To lawyers they’re like Ah! Gasp! [Excited Whispering] It’s pretext! He said it’s pretextual! [Whispering]
Andrew: I took off the leather glove, I filled it with a brick and slapped it across his face.
Thomas: [Laughs] [Inaudible Excited Whispering]
Andrew: This is low grade nonsense. The D.C. Circuit will reverse this opinion en banc and then it will go to the Supreme Court. It is distressing to me that this opinion will provide a fig leaf if John Roberts decides that protecting Don McGahn from testifying is more important than the future of the rule of law in this country.
I dunno where John Roberts is gonna come out on that. It’s gonna be bad, so there we go.
Thomas: “Cool, it’s gonna be bad” is the message of this episode in all things. Once again, we’ve postponed our Seattle live show, FYI, and Elizabeth Warren dropped out and there is no rule of law anymore. Not a good uplifting episode, personally, but next week we’ll have fun! Talk music! It’ll be great.
Alright well on that depressing note let’s have some fun and thank our new patrons over at patreon.com/law. You know, let’s uplift everybody a little bit. We had such a fun Q&A last week, that was last Sunday. I think the fact that we’ve got the YouTube channel kinda up and running now meant that was our most viewed Q&A yet and it was a lot of fun. We’ve got the formatting a little better, the stuff looks a little better, you can see the question. I’m trying to do my best to spruce up the livestream for you, folks, so definitely – we’ll try to give you more lead time next time.
It was a lot of fun, but you can still check out the video and our patrons, because I’m gonna remember to release the audio right after I’m finished saying this, can have that HQ audio on patron.com/law! [Laughs]
Thomas: And also were able to submit questions there and like each other’s questions and ask follow-up questions, so it was a ton of fun. Plenty of reasons to pledge on patreon.com/law, we’re gonna have a Law’d Awful Movies coming at you very shortly. Within a week? I think we’re due?
Andrew: Yeah, indeed we will!
Thomas: So that’ll be a lot of fun, hop on there and it’s time to thank those who have.
[Patron Shout Outs]
Thomas: Thank you so much for pledging, we love you so much. And now it’s time for T3BE – Thomas Takes the Bar Exam.
T3BE – Question
Andrew: Okay Thomas! A store owner whose jewelry store had recently been robbed-
Andrew: – was shown by a police detective a photograph of the defendant, who previously had committed other similar crimes. The store owner examined the photograph and then asked the detective whether the police believed that the man pictured was the robber.
Andrew: After the detective said, “We’re pretty sure,” [Laughs]
Andrew: -the store owner stated that the man in the photographs was the one who had robbed her.
Thomas: That doesn’t sound right to me! I’m such a good lawyer I’m already smelling that there’s a problem here.
Andrew: The defendant was indicted for the robbery. His counsel moved to suppress any trial testimony by the store owner identifying the defendant as the robber.
Andrew: Should the court grant the motion and suppress the store owner’s trial testimony identifying the defendant as the robber?
Andrew: A) No, because suppression of an in-court testimony is not a proper remedy, even though the out-of-court identification was improper;
Andrew: B) No, because the out-of-court identification was not improper; C) Yes, because the improper out-of-court identification has necessarily tainted any in-court identification;
Andrew: Or D) Yes, unless the prosecution demonstrates that the in-court identification is reliable.
Thomas: [Inhales] Oooh, tough one. Tough one. Okay, this feels not great. Obviously that’s prejudicial to say the least for the detective to show the picture and be like [Mumbling] Yeah, we’re pretty sure that’s the guy. Can you just say this this is the [Mumbling] and then for the jewelry store owner to be like “oh, yeah, now I’m pretty sure that’s the guy.” But what is the proper remedy here? What should happen?
Trying to see if there’s anything in the facts that I need to highlight. Umm. The store owner examined the photograph, yeah this is super prejudicial. This is what we in the law business call, I believe the correct legal term is “prejudicial AF,” Andrew, I think.
Andrew: That is, yeah, that’s a third year law class.
Thomas: So should the court grant the motion and suppress the store owner’s trial testimony identifying the defendant as the robber? My first intuition is yes, because totally improper, but that also sounds pretty extreme to just suppress the entire testimony and not leave any chance of, I dunno, some other remedy so I don’t know. I’m leaning toward a yes answer, but we’ll see.
So A, no because suppression of in-court testimony is not a proper remedy, even though the out-of-court identification was improper. That strikes me as plausible, that’s a good “no” answer. B, no because the out-of-court identification was not improper. I’m gonna eliminate, that’s the only answer I’m gonna firmly eliminate. I’m gonna say not B.
C, yes because the improper out-of-court identification has necessarily tainted any in-court identification. Very plausible answer right there, I think that’s a straightforward “yes” answer, but D I think is gonna mess with me a little bit because D says yes unless the prosecution demonstrates that the in-court identification is reliable. Now is that potentially, for some technical reason, a better “yes” answer? Maybe they leave open- [Sighs] Maybe the law leaves open the idea that it’s like okay, sure. Yeah, sure the police kinda tainted the identification there but, like, here’s some other reason to believe that the store owner can demonstrate that it’s reliable.
This sucks. I could really see D being the right answer for that reason. I’m gonna – you know what? I’m gonna go ahead, I’m gonna roll the dice, Andrew, and I’m gonna say… well, shoot. Maybe I’m not gonna roll the dice. Hold on. Can I eliminate the “no” answers?
A, no because suppression of an in-court testimony is not a proper remedy. Is there some other remedy that’s more proper? I’m not seeing it in any of the other answers. It doesn’t necessarily mean that there’s some other better remedy, but often when there is you see it as some part of another answer. What else would you do? Would you just impeach the testimony? Would you just like cross-examination? Maybe that would be the other thing you’d do? Oh no, you just try to impeach the testimony in so way?
Uck, I dunno, this feels super not right to be able to have this identi – Alright, here’s what I think I should do. I’m gonna eliminate the “no” answers even though A is a contender, I’m gonna be bold, Andrew. I know you like it when I’m bold. And I’m gonna eliminate the “no” answers, I’m gonna stick to the “yes” answers and if I was feeling lucky, if I was feeling like I really had a handle on the law I would maybe go with D just because it could be a better “yes” answer. There’s some other reason you’re able to say oh, no, it wasn’t that they showed me that picture.
Well shoot. You know what? Gosh! I’m gonna talk myself into D, because D feels like what if the prosecution is able to say no, look, it wasn’t that the police showed the photograph, this person has video footage or some other reason. No, they know that person well or they can easily identify it. Or is it C, yes because the improper out-of-court identification has necessarily tainted any in-court identification.
You know what? I’m rollin’ the dice, Andrew, I’m feeling lucky. This could really come back to haunt me, but I’m gonna go with D. I’m gonna go ahead and say let’s say it turns out that the store owner really knows – they can prove that the store owner really can identify the person regardless of what the detectives did. Gosh, this is risky! Because I feel like it probably is C.
Gosh! Do I leave that – that’s really hard. Ugh! I’m rolling the dice, I’m going with D, Andrew! Going with D, I may have just screwed myself but I’m going with D!
Andrew: Alright. Well, if you’d like to play along with Thomas you know how to do that! Just share out this episode on social media, include the hashtag #T3BE, include your 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, well we will see you on Tuesday’s episode for some music law! With the actual folks who built that algorithm, it’s gonna be a lot of fun! Make sure to tune in on Tuesday and we will see you then!
Andrew: See ya!