Listen to the episode and read the show notes
Topics of Discussion:
- Pre-Show Mazars Case Update (Trump’s Taxes)
- Yodel Mountain – Flynn Case Update
- Breaking Down the Law – Don McGahn Subpoena
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 418. I’m Thomas, that’s Andrew and, uh, Andrew, there’s not much going on.
Thomas: I think we should just call it here. So hi, we’re checking in, but no episode. There’s nothing.
Andrew: Yeah, summer is getting ready to turn into fall and we can just pack it up.
Thomas: Yeah, there’s no guarantee there would be enough news every week to do thi-
Thomas: Oh wait, sorry, this just in. All the news.
Thomas: Yeah! [Laughs] Plenty of news came in, I think we heard about some Flynn updates so I’m curious if we’re getting and Andrew Was Right on that, and McGahn. There’s a lot of stuff. Well, how’re you doing Andrew?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: Oh good. I just wanted to make sure you get the catchphrase in. I know the royalty check doesn’t go unless [Laughing] you get the signature phrase in. Only update for me is that we got the kids in the same room and that’s an adventure.
Andrew: I saw that, yeah!
Thomas: So I have my studio back, there’s no longer a – we had one commenter on the last live Q&A which everybody should’ve come to on YouTube. Everybody’s invited, come on down next time, we’ll let you know. Someone said “oh, Thomas is taking MTV ‘Cribs’ a little too literally” or something because I had a giant crib in my room. But that’s now in Phoebe’s room.
Andrew: I like that they made a nice, timely-
Andrew: Andrew-level MTV Cribs reference.
Thomas: Even Andrew got that! [Laughs]
Andrew: Even I got that one, yeah. [Laughs]
Thomas: If Andrew gets your joke then you need new references, that’s uh-
Andrew: This is where the magic happens!
Pre-Show Mazars Case Update (Trump’s Taxes)
Thomas: Alright, well, before we get going, I had seen a headline that I wanted to ask you about; about like a setback in the Trump taxes case? I know it’s so hard because I know there are several different [Laughs] things going on at any time with that and I don’t necessarily trust the headlines when it comes to this so I wanted to give you a quick chance to let us know. Was that bad news, should we be worried by the quote unquote “setback” or temporary win for Trump in the tax returns cases?
Andrew: It’s an excellent question, and this really is – both halves of what you’ve said are correct. The ruling that came out is a bit of a win for Trump in the sense that if the goal is to keep the subpoenaed documents from Mazars out of District Attorney of New York Cy Vance’s hands before the November election, any delay helps Donald Trump. That’s their sole strategy at this point, that’s gonna be a recurrent theme for everything we talk about [Laughs]
Andrew: In this week’s episode. But I will also say, this was baked into my calculus when I said I think it’s possible, but again, I don’t know that I would say greater than 50/50? When the Supreme Court’s rulings came down in the Mazars and Vance cases I said everybody in the media that is telling you that these cases are pushed off until 2021 are overselling it. It is possible that Vance will get an executed subpoena to Mazars with no further legal recourse and they will turn over documents before November. This is consistent with that.
So, what has happened? After the Supreme Court’s ruling it went back to the District Court to rule on the specific objections to the subpoena that the Supreme Court said were permissible to be raised by and on behalf of the President in this case. The District Court heard those and called them nonsense.
Andrew: So on August 21st Donald Trump filed a motion seeking a stay of the District Court’s order pending appealing that order to the 2nd Circuit, to the U.S. Court of Appeals for the 2nd Circuit. That stay, administratively, was just granted a couple of days ago. So that’s what you’ve seen. Yes, that is a positive win for Trump in the sense that he’s going to get his appeal as of right to the 2nd Circuit. None of us should be surprised by that. This is entirely baked into my analysis.
The 2nd Circuit has set an expedited briefing schedule where Trump’s brief is due September 11th, that’s one week from you hearing this. The response brief by Cy Vance is due ten days after that on September 21st, then Trump’s reply brief is due three days after that on September 24th. [Laughing] That’s a pretty expedited schedule to set. Again, I get it, that every second’s worth of delay runs us up against the November 3rd clock, but we’re still talking about the 2nd Circuit potentially ruling in late September that Mazars has to turn over the subpoena.
At that point the question will be whether the 2nd Circuit stays enforcement of its judgment pending appeal back to the Supreme Court, whether the Supreme Court issues an administrative stay, or whether the Supreme Court looks it and says “yeah, no this has already been up to us once, we said it was fine so long as you adjudicated the merits of the particular arguments, and the lower court’s done that so there’s no need for us to get involved.” Which, again, it strikes me as not implausible. You wanna tell me it’ll all stop? Yeah, there are a great many possibilities in which that happens, but there’s also some in which Cy Vance gets these documents in late September, early October. Setback, but there’s your full context.
Thomas: Alright, so still going with what you’ve said all along-
Thomas: Which is, you know, what are you, 50/50 on this?
Thomas: It’s not a guarantee that we’re getting them before election date but also entirely possible and this is still consistent with that.
Andrew: Yup, exactly.
Thomas: Alright, well there’s your update everybody. I’m glad it wasn’t worse news, at least.
Andrew: [Laughing] Yeah!
Yodel Mountain – Flynn Case Update
Thomas: So, what’s going on with the Flynn case? I think this could be an Andrew Was Right, I assume? Do we get to also write up another brief? What’re we doing, here?
Andrew: Yeah, well we get to hoist the “mission accomplished” banner.
Thomas: Ooh! But in a real way!
Andrew: This is an Andrew was – [Laughs] Right. So, where I was temporarily incorrect was in thinking that a three-judge panel of the United States Court of Appeals for the D.C. Circuit could not possibly award mandamus relief to Michael Flynn saying that Judge Sullivan must dismiss his case under Rule 48(a), ‘cuz that’s not the law! [Laughs] When the panel opinion came out 2-1 the other way I was flabbergasted, and I said okay, boy this is really hard. I imagined that Neomi Rao was going to sit out, was gonna be on the bottom of this panel, I had underestimated the degree to which Karen Henderson, a George H.W. Bush appointee, really seems to have been radicalized on the D.C. Circuit. Although she’s not a Trump appointee she has been consistently voting in indefensible Trump positions. That’s a spoiler-
Andrew: [Laughing] for what you’re gonna hear in the B segment. But yeah, a panel, 2-1 granted mandamus and said “yup Judge Sullivan, you’ve got to grant the Rule 48(a) motion” in collusion, as that term is not defined as legal term of art, but yeah, we think the fix was in.
Andrew: A real good piece of evidence that the fix was in is that the line prosecutor in this case, Brandon Van Grack, resigned, withdrew from the case, the same day that the government filed this motion.
Thomas: Yeah, weren’t there a couple of them?
Andrew: Yeah, there were a couple in the Roger Stone revised case.
Andrew: In this case it was just Van Grack, but same behavior, from which you can infer this probably seems fishy. This seems like a prosecutor saying “I can’t attach my name to this under either the model rules of professional conduct, under the legal rules of ethics, or under my own personal ethics.” We filed the Opening Arguments amicus brief to tell the court and Judge Sullivan in particular, yes, you can bring in Van Grack, you can subpoena documents, you could ask him “hey, why did you withdraw from this case?” and all of that is relevant to making your decision. So that was almost taken out of our hands thanks to Neomi Rao and Karen Henderson.
Fortunately, I predicted, and was right, that the entire D.C. Circuit would take up that opinion for en banc reconsideration, which they did ‘cuz it was terrible, and that opinion came out! And, guess what? It was 8-2 the other way! [Laughs]
Thomas: Alright, Andrew Was Right everybody! Never [Laughing] doubted you for a second, I always knew you would be right.
Andrew: Yeah, it was 8-2 because one Trump appointee, Katsas, had recused himself so took no part in the consideration. But think of how astonishing that is, and this is also foreshadowing for the B segment. The only two judges who adhered to the mistaken view of mandamus-
Thomas: Oh, were the two that we drew in the panel?!
Andrew: Yeah! Were the two on the panel, that’s exactly right.
Thomas: What a bad draw.
Thomas: That was a bad draw.
Andrew: So that now goes back to Judge Sullivan who has issued a minute order. That is not a separate written opinion but instructions to the parties on the docket as of yesterday which states that an order denying mandamus (quote) “will become effective automatically 21 days after issuance in the absence of an order or other special direction to the contrary.” It set a requirement for the parties to get together and file a joint status report with a recommendation for further proceedings no later than September 21st, 2020.
Let me explain what that means. That means the government and the lawyers for Michael Flynn, Sidney Powell, should come together and file a status report that says okay, now that we have a ruling from the D.C. Circuit that says mandamus is silly in this case, that Judge Sullivan has the discretion to consider whether or not to grant the Rule 48(a) motion, we want you-
Thomas: I hope that’s the wording they use, by the way.
Thomas: “We rule that this is silly! We’ve all decided, we chuckled.” [Laughs] Eight justices chuckled slightly, so the ruling is “silly!” Gavel!
Andrew: It’s not far from that.
Andrew: Again, for the reasons that we described on this show, which is mandamus, Latin-root “mandate,” means you can force the government to do a thing because there is no discretion in the government officer-
Thomas: Yeah, this is something that even I have been able to get into my brain because of all this. If he has any discretion then you can’t mandamus him, right?
Andrew: That’s exactly right! So that’s essentially what the en banc D.C. Circuit says. It says that we are reversing the panel decision because the petitioner very obviously has an adequate alternative remedy.
Andrew: He can go argue in Judge Sullivan’s court, and if he loses, he can appeal right back up to us! So no, you don’t get to substitute mandamus for figuring out what the judge is gonna do and then just filing an appeal as of right.
Thomas: I feel like all their every sentence could have ended with “comma, Neomi!” Or something like that! [Laughs]
Andrew: [Laughs] I think it definitely could.
Thomas: Like it implied.
Andrew: The opinion runs out to sixteen pages, or seventeen pages, because you know, we’re lawyers and we get paid by the word and it has to.
Andrew: But it’s really super straightforward. So there you have it, D.C. Circuit clarified what en banc, what mandamus means [teeth clenched] not that we should have had to, and now Judge Sullivan says “I want a report from you,” that is the government and Michael Flynn, as to what proceedings you think are appropriate. Now, you might be thinking, “well if the argument is that those two parties are in cahoots with each other, aren’t they gonna get together and create a joint status report that says ‘well, nothing!’”
Judge Sullivan, of course, thought of that already [Laughs] and says in addition to the joint status report Mr. Flynn and the court-appointed amicus curiae will file a consolidated response to any amicus brief of any non-court appointed amicus curiae. That means us! So now we get the opportunity, not only for Judge Sullivan to take a look at our brief, but you might recall that Judge Sullivan appointed John Gleason, a respected New York lawyer, as amicus to the court in this case, which is something that Judge Sullivan has done on prior occasions; that the Supreme Court has done on prior occasions.
It is not a surprise to see, in a case where there will be a crucial legal position not advocated by the parties, and here, because the government is seeking to dismiss the case and obviously Michael Flynn would like the case dismissed, there wouldn’t be arguments to the contrary unless you brought in an outside amicus.
Andrew: That’s what they did, John Gleason. So now Gleason gets to read our brief and file any response to it! [Laughs] I’m super excited about that!
Andrew: Then it says, “it is further ordered that the parties shall proposed three dates and times to hold oral argument.” That comes after the direction that Gleason, as court-appointed amicus curiae, file response to any of the amicus briefs. I do not know, I cannot tell from this minute order, it is ambiguous, as to whether that instruction includes John Gleason. I suspect that it does, and I suspect that that’s what Gleason will do, is take this order as applying to him in terms of participating in the status conference, participating in the joint status report, and participating in – as specifically directed – subsequent briefs that are filed with the court.
It’s gonna be – we’ve got, you know, now 18 more days, we’ve got three weeks, two and a half weeks, in which we’re waiting to see what happens, but let me tell ya, September 21st is going to be an exciting day!
Thomas: Hmm, okay. I’ll set my … calendar. Google calendar.
Andrew: Set an alert because that day, that’s a Monday, by 5 pm, we will get all of these subsequent filings and that will tell us whether our brief was accepted by the court. I read this, by the way, that when it says “file a consolidated response to any amicus brief-
Andrew: “of non-court appointed amicus curia-
Andrew: I take that as effectively admitting all of our amicus briefs.
Thomas: Both of our amicus briefs! Yes!
Andrew: Yeah! [Laughs] And I think that’s because – I think Judge Sullivan had sort of reserved for himself the right to decide – again, you have to move for leave to file an amicus brief. Obviously, as we discussed, most of the briefs that were filed were filed in support of Michael Flynn, but we’re still talking eight total briefs. I think he thought he might get several hundred.
Andrew: And I thought he thought he might get, you know, crazy people writing-
Andrew: And there’s, you know, Ed Meese, we could argue about it. But none of these briefs are written in crayon on a napkin. They’re all – some are wrong, obviously, but they’re all scholarly so I think – I at least read that minute order as at least not denying our motion for leave to file the brief. So, Sidney Powell is going to read our brief, guys!
Andrew: I’m super excited about that! Look, we made what I think is a very pointed and directed argument that says to Judge Sullivan: you have the right to conduct an evidentiary hearing and figure out what happened and why the government filed this motion and why don’t you go ahead and do that? I would love to see that happen, I really think we have a chance at making a difference, that’s why we spent so much time on this! I’m proud of it, I’m proud of the result.
Thomas: Does this – I know we talked about Judge Sullivan potentially recusing himself? Is there any updates there? Anything that, you know, changes your view on that?
Andrew: This is an example where I was definitely wrong.
Andrew: [Laughs] I’m glad you brought it up.
Thomas: [Laughs] I didn’t know this was gonna be-
Andrew: No, it’s fine. No no no, it’s good, it’s good. I need to own up to it. I thought the D.C. Circuit, because they asked for briefing on whether Judge Sullivan had become a party by petitioning by and through his counsel, Beth Wilkinson, for en banc review, and I thought they might pull a very clever maneuver of saying “okay, you are now a party and we’re going to disqualify you.” But here’s what the D.C. Circuit en banc said instead-
Thomas: And don’t put all the blame on yourself, wasn’t this a Professor Randall Eliason influenced take, if I remember correctly?
Andrew: We – I certainly would have taken credit for it had I been right.
Thomas: [Laughs] Okay.
Andrew: So I’m happy to take blame where I’m wrong.
Andrew: The D.C. Circuit says “we decline to mandate the reassignment of this case to a different district judge. Our precedent is clear that because the injury suffered by a party required to complete judicial proceedings overseen by a disqualified judicial officer is, by its nature, irreparable. Mandamus is an appropriate avenue for seeking compelled recusal, (quote) ‘where the party seeking the writ demonstrates a clear and indisputable right of relief’ (end of quote). But this court will reassign a case only in the exceedingly rare circumstance that a district judge’s conduct is so extreme as to display clear inability to render fair judgment.”
Then it goes through and says “petitioner points to the district judge” doing this and doing that and all the stupid Sidney Powell arguments and then the D.C. Circuit en banc says look, you didn’t even persuade Neomi Rao of that. [Laughs] We agree with the panel majority that none of the statements to which petitioner points establishes that reassignment is warranted. This was an argument so bad even Neomi Rao thought “eh, alright.”
Thomas: [Laughs] Wow!
Andrew: Then they go through the additional recusal standings and add “nor does participating in mandamus proceeding create an appearance of partiality warranting recusal from the separate underlying action. If that were the case than every mandamus petitioner seeking a district judge’s recusal would, if responded to by the district judge, obtain the sought-after recusal. A result that would not only swallow the dictates of the statute” (28 U.S.C. § 455) “but run up against case law to the contrary.” That’s a pretty clever response. It wasn’t one that I had thought about, but-
Andrew: But essentially what they’re saying is yeah, you think Judge Sullivan became a party because he opposed recusal, he opposed your mandamus. But if that was the case, if just opposing mandamus meant that we had to recuse somebody, then any time I wanted to get a district judge recused what I would do is petition for mandamus!
Andrew: Then the judge would say “alright, I oppose that” and then you would say “well, see?”
Andrew: They’ve now responded to our petition for mandamus so you have to recuse them, and you would get your result. Pretty clever, I didn’t think about it, this is why I’m not on the D.C. Circuit and it’s clearly correct.
Thomas: Neomi Rao’s on the D.C. Circuit.
Andrew: [Laughs] Justin Walker-
Thomas: Oh god.
Andrew: -just started as of September 1st, a couple days ago.
Thomas: But don’t sell yourself short, Andrew Torrez! I want you on the-
Andrew: Slightly better than Cory is not exactly the banner I wanna live and die under, but no, again this illustrates – this is really, really important as we transition over to the next segment. It is very easy for us to think about the political implications of opinions by circuit courts of appeal, and I have no doubt that the judges on those courts are aware of their political implications. You can’t not be.
This is an example of where it might have been a more clever political outcome to do what I thought they might do, and instead the judges just tried to apply the law as fairly as possible, and that’s the right thing to do. It’s a thing that we’ve largely lost in the era of Trump and that kind of faith in the rule of law – that’s how I felt about courts coming out of law school, it’s how I’d like to feel about courts again. So I was wrong, and I was wrong for an exceptionally good reason and I’m proud of being wrong.
Andrew: I thought this would be a clever way of sticking it to Sidney Powell, and it might have been, but the D.C. Circuit was much more interested in applying the appropriate legal precedent and good on them.
Thomas: Okay! So no recusal coming. Good, I like Judge Sullivan. I feel like we’ve gotten close over these past-
Andrew: [Laughs] We’re friends now, yeah.
Thomas: -few months. You know? He may not have read my brief but in my mind he did, so.
Breaking Down the Law – Don McGahn Subpoena
Thomas: Alright, and now for our main segment, how do I even intro this? I’m really confused with what’s going on here. Don McGahn, does a subpoena have any value anymore? What’s happening, do we have rule of law? Go!
Andrew: [Laughs] That’s a hard question. Look, this is the reverse of our A segment.
Andrew: This is an area where the Trump administration is going to successfully run out the clock and it sucks. If you’re not sold on Joe Biden and my saying “hmm, maybe you don’t want Donald Trump appointing Justin Walker to fill Ruth Bader Ginsburg’s seat” isn’t sufficient persuasion for you, maybe this will also persuade you. Here’s what’s going on, and all of this – I think it’s really important to remember – has its roots in the Mueller report. So what happened? Soon after Donald Trump took office Rod Rosenstein appointed Robert Mueller to conduct an independent investigation into the contacts between the Trump transition team and Russia in connection with the 2016 U.S. Presidential elections.
As part of that investigation Mueller interviewed McGahn. McGahn agreed to talk to Robert Mueller. In March of 2019 Mueller completed the report and copies were sent to the House Judiciary Committee before they were released to the public. In the Mueller – and when I say “in the Mueller report” I mean volume II page 1. Volume II, page 1 on obstruction of justice says hey Congress, I’m Robert Mueller and I am abiding by an opinion from the White House Office of Legal Counsel – again, sternly worded crunch wrap – that says you cannot indict or criminally prosecute a sitting President because that would violate the separation of powers. So, the only mechanism, if you think you are about to read 250 pages of descriptions of crimes committed by the President, and (spoiler alert) you sure as hell are!
Andrew: The only mechanism is to impeach him. That is what the Mueller report says. I’ve obviously spicied up the language a little bit.
Andrew: But seriously, go to volume II, read page 1. It is pretty damn clear that Robert Mueller is saying “you guys might want to impeach this guy over this.” Unsurprisingly, the House Judiciary Committee looked at this, said well this seems to be a record of repeated criminal activity by the President of the United States, let’s startup an impeachment inquiry regarding this. That is delegated to the House of Representatives, article 1, section 2, clause 5. Pursuant to that they said okay, our committee is going to issue a subpoena to Don McGahn to turn over documents and testify before us in connection with the Trump administration team’s contacts, and campaign contacts with Russia in the 2016 election. Don McGahn, by this time, had left the White House because of course he had. Despite having left he said “I’m not going to comply with these requests.”
We do not know exactly the reasons for this, what we do know is the White House instructed McGahn not to testify. McGahn’s successor, Pat Cipollone, informed the House Judiciary Committee that the White House had (quote) “directed Mr. McGahn not to appear at the committee’s schedule hearing on the grounds that the President is” and again, I wanna read this directly, (quote) “absolutely immune from compelled congressional testimony” (end of quote).
As we have talked about, there are a dozen – there are now a half dozen, I do not wanna be hyperbolic. There are now a half dozen Supreme Court decisions that say “the President is not absolutely immune from compelled congressional testimony.”
Andrew: These claims of absolute immunity are nonsense, they’re garbage, they have been consistently rejected by every court to consider them since the Nixon administration, and by the way, Republicans were super happy about that when it meant that Bill Clinton had to sit for a deposition in the Paula Jones case. That led to them impeaching Bill Clinton. So, you know, these newfound claims of absolute immunity? Uh, Bill Clinton is sitting in his home in Chappaqua, New York, going “hey, where was this 20 years ago?” Again, it shouldn’t have been available to Bill Clinton, it wasn’t available to Bill Clinton. It shouldn’t be available to Donald Trump and why courts are permitting this rigamarole is beyond me.
So that happened. Then you had a stalemate. Congress issued a subpoena, Don McGahn said “meh, why don’t you go clownhorn yourself?” That’s not the end of it. A guy doesn’t just get to tell Congress where to stick it. So, the House Judiciary Committee introduced a resolution, it’s H.R. 430. It was then approved by the entire Congress and since it’s a resolution that affects only the House of Representatives, it doesn’t have to be signed into law by the President, it just has to be approved by the entire House. That hey, we’re gonna go to court to enforce our subpoena. That was August 17th, 2019. They went to court to get a declaratory judgment that says “McGahn, you gotta testify.”
Why does he have to testify? Because we’re Congress, we have the power to subpoena you, we issued a subpoena, and your legal arguments are nonsense. That subpoena sought a declaratory judgment that McGahn had to appear and testify (quote) “as to matters and information discussed in the special counsel’s report and any other matters and information over which executive privilege has been waived or is not asserted. So, in other words you recognize that White House counsel does indeed have valid executive privilege, but you know what you don’t have privilege to do? Commit crimes.
Andrew: So you’ve gotta come in and testify about that. And the district court said yeah, this is a valid subpoena, you have standing as the House of Representatives because you have a thing that only you can do, that is initiate proceedings to impeach the President. You therefore have a cause of action to say “we wanna get the information we need to impeach the President,” and this court has subject/matter jurisdiction over the lawsuit because that’s where you go. Courts are where you go to enforce subpoenas when a party decides not to comply with them. That I thought was the easiest, simplest district court opinion that you could possibly have. The district court also recognized, by the way, that McGahn could be compelled testify but then could assert privilege during his hearing.
Andrew: The subpoena just means you gotta show up, you gotta bring whatever non-privileged documents there are, but if they ask you “what did the President tell you on X day” you can say-
Andrew: Yeah, no, that’s attorney/client privilege, not gonna tell you that. So nothing in the district court’s opinion said that you have to answer any specific question, just that you can’t go to the beach.
Andrew: You gotta be there! That was then appealed to the D.C. Circuit and I said this is gonna be a slam dunk at the D.C. Circuit to affirm. I discussed that in episode 290 of OA. Unfortunately, yet again, the luck of the draw was super bad and McGahn drew a panel that had on it Karen Henderson, whom we’ve just talked about.
Thomas: Hmm. We got a Karen, you’re saying.
Andrew: [Laughs] Yes. Whom we just talked about in connection with Michael Flynn’s case, has been, I believe, radicalized. Judge Griffith, a George W. Bush appointee. That’s the person who just stepped down in favor of Justin Walker-
Andrew: Who filed a concurrence but a very, very narrow concurrence in the Flynn case. So, you know, not as far right as Henderson and Rao but definitely a conservative judge, and the panel ruled 2-1 in literally one of the most baffling judicial opinions that I have ever read, that as a court, that the court lacked subject/matter jurisdiction to adjudicate the validity of a subpoena. Again, I wanna point out, I can’t take credit for this. A very, very good friend of mine who wishes to remain anonymous texted me the day this came out and said “should I go ahead and email Judges Henderson and Griffith with the Latin definition of ‘subpoena?’”
Andrew: Because that means sub-poena.
Thomas: Wait, that’s the definition? Sub-poena?
Andrew: [Laughs] The Latin roots of subpoena, right? Meaning “under penalty of law.” The idea that you would say “we don’t have any ability to enforce penalties for failing to comply with the subpoena-
Andrew: The reasoning was bonkers. It was “well, suppose we do, he’s just gonna not show up and then we’re gonna have to be-
Thomas: That’d be a whole thing, we’ve gotta do paperwork. Nobody wants that.
Andrew: Why would we have to do that!
Thomas: We give up.
Andrew: Or suppose he does show up, he’s then going to plead immunity and we’re gonna be right back here having to adjudicate the claims of immunity, and you’re like yeah. You’re a court! That’s what you do!
Thomas: [Laughs] Yeah.
Andrew: It was bonkers. On the basis of that completely bonkers opinion which came out February 28th of 2020, we discussed it in episode 366 of the show. Just to contextualize 2020, that episode 366 was called “Your Guide to the Coronavirus,” so you know, it was right when this whole “what is this whole COVID thing happening?” Yeah. We took a tiny break from telling you about this crazy new worldwide pandemic to tell you that the D.C. Circuit issued and inexplicable opinion and unsurprisingly a week after that, on March 12th, the entire D.C. Circuit granted en banc reconsideration of this bonkers opinion.
They took from March 12th until August 7th to rule, which again, it’s not a long time by en banc decisions of the D.C. Circuit, it’s in fact pretty quick by those standards, but you know, for a case where it kinda would be nice to have a result before the election that was a long time. Probably because they were waiting for the Supreme Court to issue its guidance in the Mazars and Vance cases. In fact, on pages 22-23 of the opinion that they released on August 7th, that is what happened.
They do quote and analyze the Mazars opinion as being instructive. I think the full panel of the D.C. Circuit was like “look, we’re not gonna jump out in front of the Supreme Court and issue something that could be mooted by what the Supreme Court says regarding compelling subpoenas.” That’s pretty smart, that’s pretty consistent with how appellate courts behave, and the fact that the Supreme Court took forever to rule in those cases I think delayed the D.C. Circuit.
But in any event, August 7th we got the same thing that we got in Michael Flynn’s case. So you might be thinking, “boy Andrew, you’ve sounded pretty negative about this the whole way, how is this the capper?” It isn’t quite. [Laughs] But yeah, on August 7th we were jubilant, we tweeted it out, exact same thing. Panel was 2-1 saying that the D.C. Circuit can’t enforce Congressional subpoenas. The en banc review was 7-2 the other way.
Thomas: Hey, there you go!
Thomas: What’s with all these bad draws?
Andrew: Yeah. That’s because the two Trump appointed justices, Rao and Katsas, had recused themselves from consideration in this case. So 2-1 one way, it becomes 7-2 the other way, and I have this. You will see from my show notes, Thomas, I summarized the entirety of the en banc opinion as “duh.” [Laughs]
Andrew: ‘Cuz it kinda is! (Quote) “The House has a long recognized right based in the constitution to have McGahn appear to testify and produce documents because each House of Congress delegates its power of inquiry to its committees, which are endowed with the full power of Congress to compel testimony, the committee exercised the House’s subpoena power when it issued a subpoena to McGahn. By refusing to testify, McGahn has denied the committee something to which it alleges it is entitled by law, and because the committee has alleged that the deprivation of testimony to which it is legally entitled, its asserted injury is concrete. So we as the court have jurisdiction, subject/matter jurisdiction to decide this claim.” Duh!
Thomas: Case closed!
Andrew: Case closed! What the en banc – but look, again, the entire D.C. Circuit sitting en banc was not gonna adjudicate facts, so here’s what they did and stop me if you see where this is going. They say alright, we’ve decided the committee has standing to seek enforcement in federal court of a duly issued subpoena in the performance of constitutional responsibility. (Quote) “Therefore we affirm the judgment of the district court in part. Consideration of McGahn’s other contentions, including threshold premerits objections that there is no subject/matter jurisdiction and no applicable cause of action remain to be decided and are remanded to the panel to address in the first instance.” So they said okay-
Andrew: Panel, you guys screwed this one up real good, smacks ‘em down a little bit and says we’re gonna send you the case again, this time understand, in light of what we’ve told you, duh, you have jurisdiction. Will you please address these threshold objections that okay, you have jurisdiction but there’s no valid cause of action here.
Thomas: Sorry, pausing here. They’re handing it back to the panel-
Andrew: To the panel, yes. This is weird-
Thomas: Yeah, why would you do that? I thought the whole thing was you do the panel and when that is [Laughs]
Thomas: In my legal experience that’s a total nonsense BS ruling that doesn’t even understand how the law works and hasn’t read a book, so then the whole court en banc is like “No, you troublemakers!” and then end of story. But now you’re saying they sent it back to the uneducated people who don’t know anything? The panel?
Andrew: They did and here’s why. This is a really weird kind of-
Thomas: Because if we keep having to rule for you, you’re never gonna learn the law!
Thomas: Get it right!
Andrew: Kind of! Usually what happens is that an en banc decision will reverse a prior decision and will then remand back to the district court level-
Andrew: To the trial court level for more fact finding. But here they say look, there’s no fact finding to do. We’re not reversing the trial court on any facts, so all of that has been done, so we are effectively treating this as if we’ve affirmed the district court on the facts and now it’s appealed back up to the D.C. Circuit which would go back to the panel that you drew in the first place unless there were reasons to reassign the judges, and as we just talked about in the A segment those reasons are incredibly rare.
So, them screwing up the law is not a sufficient reason to deny the original three judge panel the ability to hear and decide on the exclusively legal claims that were raised by McGahn. That’s why it went back to that original panel, it’s a super weird procedural quirk and, foreshadowing your question, this panel yesterday got it wrong again.
Thomas: So then are we gonna go back to the en banc? [Laughs]
Andrew: We are absolutely going back to the en banc.
Thomas: Assemble the en banc again, they keep getting it wrong.
Andrew: We’re gonna have to do this. So, the panel, 2-1, ruled that the House of Representatives did not have a valid cause of action. In other words, they say look, yeah yeah yeah, we are the right court to adjudicate this, but you haven’t come to us with a thing that we can resolve.
I wanna do a tiny little sidebar because we do not have the time for me to address the question of whether seeking a declaratory judgment is an independent cause of action in and of itself. It’s an interesting argument back and forth and I think the majority probably gets this one wrong too, but it doesn’t even matter! [Laughs] Because there is a straightforward implicit cause of action under Article 1 of the constitution, and that is whenever Congress has a thing that it needs to do for which it needs a subpoena – and that is carry out investigations, pass legislation, or conduct impeachments, then it has a cause of action to enforce it.
The reason we know this is a 1927 case called McGrain v. Daugherty. I dunno, have you ever watched – I found this out in researching this case, I haven’t seen it. Have you ever seen the HBO series Boardwalk Empire?
Thomas: No, I haven’t actually.
Andrew: I haven’t either.
Thomas: I hear it’s really good.
Andrew: I heard it’s really good, too, so I thought you might have an opinion, neither of us have seen it, doesn’t matter. As it turns out, the brother of the Daugherty in McGrain v. Daugherty is Harry Daugherty, a 19th century Republican who was Warren G. Harding’s Attorney General.
Andrew: That guy is a recurring character in Boardwalk Empire, which is set in the 20s.
Thomas: Wow. Well now we have to watch it! [Laughs]
Andrew: Yeah, now we do. We clearly do. So, Harry Daugherty, like I said, we would probably agree with a lot of his politics. 19th century Republican. But he was also kinda the Bill Barr of his time. He was a powerful political boss; he was Warren G. Harding’s campaign manager in 1920 and when Harding won Harding payed back Daugherty by making him Attorney General. If you remember anything about Warren G. Harding from High School, AP U.S. history, you probably remember him for one of two or both of dying in office and being the dude behind the teapot dome scandal.
Andrew: The teapot dome scandal was a very Trumpian scandal. It was broken by the Wall Street Journal about a secret bribery scheme by oil companies who sent a half million dollars, which is about $7 million dollars in today’s money, to government officials in exchange for single bid non-contested oil extraction leases that were then worth many multiples of their bribes. And so, to be clear, assigning the oil leases was perfectly legal. Bribing the government officials were not. The guy who was Attorney General at the time of the teapot dome scandal was Harry Daugherty. Then the other fact that you’re likely to know about Warren G. Harding is that he died of a heart attack in 1923-
Thomas: I think it was in San Francisco. He was in California, I think.
Andrew: Yeah, in San Francisco! That’s right, that’s exactly right.
Thomas: It’s our claim to fame. We’re not known for anything else.
Andrew: [Laughs] We killed Warren G. Harding. Well, good for you.
Thomas: [Laughs] Yeah, the statute of limitations is up, we can admit it now.
Andrew: Calvin Coolidge became President and Coolidge forced out Daugherty in 1924. Daugherty would go on to be tried twice for corruption, fraud, misconduct in office. The jury would hang both times. So, he, again, sort of presaging a lot of these Trump drain the swamp guys, never had to serve any time in prison or pay in any way for what was very clearly corruption on his watch.
So Congress, not happy about this, passed a resolution authorizing and directing a select committee of five senators to (quote) “investigate circumstances and facts and report the same back to the House concerning the alleged failure of Attorney General Daugherty to prosecute properly violators of the Sherman Antitrust Act,” to arrest and prosecute the various government officials who were involved in the teapot dome scandal, and a whole bunch of other stuff. Pursuant to that committee they issued a subpoena for Daugherty’s brother, a guy named – and I love 19th century names – Mally S. Daugherty.
Andrew: Mally, M-A-L-L-Y, bring back. If you have another kid, Thomas, may I suggest Mally as a name.
Andrew: So, Daugherty’s brother Mally was subpoenaed by the House, he did the same thing Don McGahn did. He said nope and declined to show up, but the House of Representatives was a lot more badass back in 1926.
Andrew: They made a report to the Senate, they sent their sternly worded crunch wrap, and again there’s nothing wrong with sternly worded crunch wraps, the question is what do you do when they don’t go anywhere. They made a report to the Senate and the Senate was like “wait, you subpoenaed a guy and he didn’t show up?” They passed a resolution that said “resolved that the President of the Senate pro tem issue his warrant commanding the Sergeant at Arms or his deputy-
Andrew: to take into custody the body-
Thomas: They’re like “this is the 1920’s not the 2020’s, subpoenas mean something!
Andrew: Yeah, that’s exactly right!
Thomas: This is an outrage!
Andrew: Yeah! And so they said, uh yeah, you’ve got a sergeant, man! Like, get that guy or his deputy, go out with a gun and frog march that guy back in here!
Thomas: Yeah, they probably put him in the stocks or something.
Andrew: Yeah, the Deputy Sergeant at Arms was John Jay McGrain. This is McGrain v. Daugherty, so McGrain goes out, goes to Cincinnati, drags Daugherty out of Cincinnati and brings him back via train to Washington D.C. in handcuffs. While this is happening, Daugherty’s brother is the, you now, early 20th Century Bill Barr, right? So, he files a habeas petition. He says look, habeas, you have habeas corpus, you have the body. It’s my body and I wanna be released! And the district court said yeah, no, that’s true, you just abducted a guy. The Supreme Court smacked the District Court down.
Thomas: Yeah, he had it coming.
Andrew: Yeah! They said “are ya nuts? This guy disobeyed a subpoena and the constitution very clearly implies a right of action on behalf of congress to enforce its subpoenas. “The power of inquiry with the process to enforce it” – here I am quoting from the Supreme Court – “is an essential and appropriate auxiliary to the legislative function.” Article 1 give congress not only the power to demand testimony and information but also (quote) “a process to enforce” (end of quote) “such a demand, namely a subpoena enforcement lawsuit.” Then that was upheld in a subsequent case in 1955. So, case closed, right? A hundred years ago, the Supreme Court said yeah, congress gets to enforce its subpoenas, that’s a real thing, don’t be stupid.
Thomas: Yeah, well we oughtta send a Mandalorian after this guy now, or something.
Thomas: It’s 2020, so we can update it a little bit.
Thomas: You get a bounty hunter, you go out there, you capture the guy and then he has to testify.
Andrew: I would love to do that. This is – I’m gonna read to you the entirety of the panel’s decision responding, because this was, again, 2-1 with the same ridiculous panel saying – now saying “oh yeah now, you asked us to determine jurisdiction we said yes but now we’ve determined that there isn’t a valid cause of action” and the dissent says “uh, you idiots” and just point to McGrain. Literally it almost says that. In responding to the dissent, it says (quote) “The dissent quotes McGrain v. Daugherty, which held that the power of inquiry with process to enforcement is an essential and appropriate auxiliary to the legislative function.
But the Supreme Court has also explained that authority to exert the powers of the” (brackets) “House of Representatives to compel production of evidence differs widely from authority to invoke judicial power to that purpose,” and then quotes another case, you may realize that as just dicta, then it says – and literally this is the entirety of their effort to distinguish it, “and neither of the cases that the dissent cites says that Article 1 gives the committee power to file a civil suit to enforce tis subpoenas. McGrain arose out of a habeas corpus suit filed after the Senate exercised it’s” (italicized) “inherent contempt power to arrest the Attorney General’s brother.”
If that seems like what lawyers call a distinction without a difference, it’s because it is. The issue in McGrain was does the House of Representatives possess a valid cause of action to go to the courts to seek vindication of its power to issue subpoenas, and the fact that it was executed by the Sergeant at Arms as opposed to being executed in the courts is – it was not an issue, is not, there’s no reason to think that it would be an issue, it is preposterous and ridiculous. It further emphasizes that the only thing remaining in the era post-Trump is to revitalize the practice of sending out the Mandalorian.
Thomas: Yeah! [Laughs]
Andrew: So that’s our ruling, what happens next is we’re gonna get another petition for rehearing en banc. I’m gonna upload the order because the order recognizes this. [Laughs] The panel decision says “It is ordered, on the court’s own motion, that the Clerk withhold issuance of the mandate … until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.” Because they know that they’re not giving the final words, the only thing they’re trying to do here is ensure that Don McGahn does not have to testify before November of 2020.
Thomas: Gosh, what a nakedly political thing.
Andrew: It is.
Thomas: Thingy. Court thingy.
Andrew: And he won’t. We will not get McGahn’s testimony before the election.
Thomas: Andrew, this is a bad court thingy!
Andrew: It is a very bad court thingy. These subpoenas were issued in March of 2019. It has been a year and a half, and thanks to two complicit Trump-supporting activists on the D.C. Circuit we will not hear testimony from Don McGahn that would be instrumental to the voters of this country in determining whether the President colluded and conspired with a hostile foreign power to steal the election in 2016. You’d think people might want to know that.
Thomas: This is not the way.
Thomas: Sorry, just more Mandalorian.
Andrew: No no no! That’s 100% correct. Again, you know, we’re flogging the “vote for Joe Biden” bandwagon pretty heavily here, but if Trump wins reelection this will – it will be proof that these tactics work. So, don’t be complicit in that, vote for Joe Biden, support Joe Biden, give money to Joe Biden, be enthusiastic about Joe Biden. I get it, but this is what happens if you’re not.
Thomas: You had me until the last part, but I’ll do all the other stuff.
Andrew: [Laughs] Fake enthusiasm until you get enthusiastic.
Thomas: We just need to end this.
Thomas: I don’t even care if you’re a fan of Joe Biden, vote Trump out. That’s all that matters.
Thomas: And it really does matter. It’s so weird how people keep doing the “oh, tell me one reason to vote for Joe Biden that doesn’t use the word ‘Trump’” or whatever, and it’s like …
Andrew: He’s the incumbent!
Thomas: Yeah, why?
Andrew: By definition! [Laughs]
Andrew: That’s like “tell me one reason to vote for Joe Biden that doesn’t use the words United States of America.” You’re running to replace Donald Trump! Ugh, what a stupid thing to say.
Thomas: Yeah, it matters that we have the most corrupt President in history. For a lot of people out there, probably Andrew, probably a lot of listeners, you’re like “yeah, no, we love Biden, he’s great” and all that. Maybe some of you are more like me, are like not a huge fan, not excited about voting for Biden, but it still very much matters who he’s replacing and the fact that the Democratic party as an institution is, while you know, very imperfect, much better than the horrible fascist evil, corrupt, Republican administration. By the way, the party didn’t even bother to put out a platform this year.
Thomas: They just said whatever the head honcho says goes. It’s a joke, we need to end this madness.
Andrew: As I said on Skepticrat and maybe even on this show, Donald Trump managed to do what the Civil War could not.
Thomas: Yeah! Well they had a lot more time for rioting back then.
Andrew: [Laughs] Yeah, but they had to do it with a quill and-
Thomas: Dearest American People.
Andrew: S’s that looked like F’s.
Thomas: [Laughs] On that note, everybody go vote, support the Democrats. You’re voting on the Supreme Court; you’re voting on all this stuff. Make things matter again, 2020.
[Patron Shout Outs]
Thomas: It is time for T3BE. I am on a bad streak. You know, Andrew, I keep playing The Big Lebowski, you eat the bar and sometimes the bar eats you when I get it wrong. I keep thinking to myself, I’m gonna need to come up with something to play when I get one right, but yeah, it hasn’t happened in a month or so. Eventually I’m gonna have to think of something to play when I get one right, I don’t know what that would be.
Andrew: I can’t wait to hear what that is, because I’m feeling good about this one.
Thomas: I’m open to suggestions, and actually right now, before anybody including me or you knows what happened, I keep wanting to ask the listeners and then I don’t wanna tip off, you know, what happened in T3BE. Before – I don’t know anything – if you’re still listening send a suggestion my way-
Thomas: -of what audio I should play if I ever get one right. Which, admittedly, this may not be relevant for another month, we’ll see.
Andrew: I like the “if you’re still listening,” [Laughs] as if all of our listeners are like no I never stick around for T3BE. I’m sure some of them are still listening, Thomas.
Thomas: They come for the panel en banc distinctions, the drama-
Andrew: Then they cheese out? Alright, fair enough.
Thomas: That’s all anyone listens to on this, panels and en banc and injunctive relief, that’s the main – no, let me know if you have anything in mind for a victory thing. There, I’ve said it, I’m not hinting at anything that happened. Let’s get a question wrong here.
Andrew: Now let’s ace this real property question!
Andrew: So here you go. Thomas – but it’s a woke real property question, at least.
Andrew: A businesswoman owned two adjoining tracts of land, one that was improved with a commercial rental building and another that was vacant and abutted a river.
Twenty years ago, the businesswoman conveyed the vacant tract to a grantee by a warranty deed that the businesswoman signed but the grantee did not.
Andrew: The deed contained a covenant by the grantee as owner of the vacant tract that neither he nor his heirs or assigns would (quote) “erect any building” (end of quote) on the vacant tract, in order to preserve the view of the river from the commercial building on the improved tract. Kay? The grantee intended to use the vacant tract as a nature preserve.
Andrew: The grantee promptly and properly recorded the deed.
Last year, the businesswoman conveyed the improved tract to a businessman. A month later, the grantee died, devising all of this property, including the vacant land, to his cousin.
Thomas: Ah, let me guess, the cousin wants to build something?
Andrew: Six weeks ago, the cousin began construction of a building on the vacant tract.
Thomas: Wouldn’t you know it.
Andrew: The businessman objected and sued to enjoin construction of the building. Who is likely to prevail?
Thomas: Well, shoot. Okay. [Laughs]
Thomas: So anyway, within two weeks get me the clip you want me to play if I get one right.
Andrew: [Laughs] A) The businessman, because the commercial building was constructed before the cousin began his construction project.
Andrew: B) The businessman, because the cousin is bound by the covenant made by the grantee.
Andrew: C) The cousin, because an equitable servitude does not survive the death of the promisor; or D) The cousin, because the grantee did not sign the deed.
Thomas: Yeah, I was … [Sighs] it felt to me like the signature thing was at least gonna be part of it. Okay, well, I don’t know. I don’t think I’m gonna get this right, but I at least feel like I understand what’s happening better than I used to. So a businesswoman conveys thing, it says – I think this is the important part here – vacant tract to a grantee by a warranty deed. Oh shoot, what’s a warranty deed? Maybe that’ll be something, I dunno. That the businesswoman signed but the grantee did not. The deed conveyed a covenant, contained a covenant by the grantee as owner of the vacant tract that neither he nor his heirs or assigns would erect any building. The deed contained, okay.
Just to try to sum up in English for anybody who couldn’t follow or something [Laughing] I don’t know who that is. Businesswoman gave land, you know, or whatever, or sold it. I guess it doesn’t say, it just says conveyed, I think? And said here, you can have this, but no buildings. It says in the question that the grantee, the person who was granted the land, didn’t sign the deed, but it does say that the deed contained a covenant by the grantee as owner that neither he nor his heirs would erect any building.
Okay. Then it says grantee intended to use the vacant tract as a nature preserve, the grantee promptly and properly recorded the deed. So it’s like the grantee didn’t sign it, but they did record it. And promptly, I’m not sure if that matters. I think that’s maybe where the question comes in but maybe that’s all, you know, red herring or something, maybe that has nothing to do with anything, we’ll see.
So then obviously the grantee dies, leaves all the property to the cousin, the cousin’s like “oh, this is a great place for a building, I’m gonna build a giant tall view obstructing building right here,” and then wouldn’t you know it, that’s where the legal drama begins. Okay, so will the businessman – and that’s the person who owns the commercial part that doesn’t want a building built on the nature part. The businessman objects and sues, who’s gonna prevail?
A says the businessman, because the commercial building was constructed before the cousin began his construction project. That sounds like the stupidest answer ever, and it’s possible that that’ll be the right one. We’ve talked about this, some time it’s gonna be true that that answer, the one that sounds like nonsense, will be the right answer. I hope it’s not today, but you never know. I’ll take that risk. Because that doesn’t make any sense. Because the commercial building was constructed before the cousin began his construction project then therefore? There’s no way that could be it, so I’m eliminating A, if I’m wrong, whatever. Who cares?
B, the businessman, because the cousin is bound by the covenant made by the grantee. Okay, that sounds very straightforward. Seems like that would be true, the cousin should still be – as an heir of the grantee, the cousin should still be bound. The only reason they wouldn’t be maybe would be the signature thingy? So, we’ll see.
Then C and D are both the other way. So, A and B are the businessman, C and D are the cousin. C the cousin because an equitable servitude does not survive the death of the promisor. Okay. What does that mean? Come back to that in a second.
D the cousin because the grantee did not sign the deed. So there’s the signature one in D. You know, I’m gonna go ahead and say signatures aren’t magic, you know. Sometimes they are but I think in this case they didn’t sign it but they recorded it and you know; it says the deed contains the covenant. So if they record the deed and the deed contains the covenant that says you can’t build stuff here, I dunno, that feels – so I’m eliminating D. I’m gonna go between B and C. B which sounds straightforward and C which sounds like nonsense magical language that I don’t get.
Let’s examine C and see if I wanna go that way. The cousin because an equitable servitude does not survive the death of the promisor. I dunno. [Sighs] I don’t know what that means exactly. It sounds like it was more of a promise thing, like okay, we’ll just kind of agree to this, you and I. Equitable servitude, like it’ll be fair? I dunno, I’m not sure, I’m trying to puzzle out what that would mean, and it’s implying that once the person who promised it died it wouldn’t matter, even though the deed says your heirs can’t do this either. It’s possible, that could be it.
The only reason I sort of lean towards C is because I wonder if this would mean – if the logic of this question would mean that like no one can ever build a building on this thing of land ever for the rest of human history. What would it take for someone to be able to build a building there? It almost in a weird way kinda makes sense that this sort of thing would not survive the death of the promisor. Like you couldn’t make them promise to not do this forever no matter who owns it? But the fact that the covenant or the deed – yeah, the covenant says neither he nor his heirs or assigns – I dunno what that, some other saxony word there – would erect any building. It seems like they could sell it, maybe.
Here’s the thing, it could be C. C is a strong contender. I think I’m gonna go with B because, I dunno, it feels like this could survive. Because it says the businessman because the cousin is bound by the covenant made by the grantee. I’m gonna go ahead and go with B, it really could be C, I could see an argument for C but I think I’m gonna just kinda play the numbers game and go with the straightforward answer and hope that around 55% of the time it’s correct? [Laughs]
Thomas: So B, final answer, there you go.
Andrew: Alright and if you’d like to play along with Thomas, you know how to do that by now, guys. All you’ve gotta do is 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: Okay well that’s our show, Andrew. You know, mixed bag there but the common theme seems to be really bad panels and then en banc clearing it up but not in time in some cases.
Thomas: That fair?
Andrew: That’s a fair summary.
Thomas: Alright, well. Okay. Thanks for the breakdown, thanks for listening everybody. We’ll see you next time.