Topics of Discussion:
- Pre-Show Update: Woodward Tapes
- Breaking Down the Law – Right Wing Court Packing
- Carroll v. Donald Trump Part 1 (Case Background)
- Carroll v. Trump Part 2 (Legal Analysis)
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 420. [Laughs] Nice.
Andrew: Is that supposed to be a funny thing? I’m a precious little cinnamon bun so I wouldn’t-
Thomas: Oh sure!
Thomas: Last episode I seem to recall a certain cinnamon making plenty of jokes.
Andrew: That’s true, that is true.
Thomas: No, how’s it going, Andrew?
Andrew: I’m doing fantastic, Thomas, how are you?
Thomas: Oh, you know, just went back on fire again. I felt like we had a day where the air was better and I assumed that meant that fires were better. It’s just fires all the way down.
Andrew: My sister in law sent me a picture of the Giants game, the San Francisco Giants game and it looks like it’s being played on the surface of Mars.
Andrew: It was just-
Thomas: Well it kinda goes with their colors, actually.
Andrew: [Laughs] Bright red?
Thomas: The orange, yeah.
Andrew: A little bit of a clashing with the orange and black, but yeah, I dunno how you do it man.
Thomas: We don’t get to go outside.
Thomas: But it’s okay because there’s also a pandemic, so can’t go outside and do anything.
Andrew: Maybe it’ll burn off all the COVID.
Thomas: [Laughs] Can’t go inside to anyone else’s place or anything, so we just sit perfectly still right where we are and don’t talk to loudly or do anything. That’s how we deal with it. That’s how I am!
Andrew: [Laughs] You know, there’s absolutely no cause for insanity from that.
Thomas: [Sighs] But it’s good because the houses out here, you can only afford about a closet space as well in California. So, it all works out. You know, you just sit in your closet sized $4 million dollar home, and yeah, it’s good.
Andrew: Opening Arguments has been brought to you by the Northern California Bureau of Tourism!
Pre-Show Update: Woodward Tapes
Thomas: [Laughs] Well we’ve got way too much to get to as usual. You had a couple quick updates before we get going?
Andrew: Oh yeah. So yesterday the DOJ filed two cert petitions and one cert answer, they did it all on the same day, they all have to do with the emolument’s cases. We’re gonna break that down next week, not that – if you saw it you know we’ve been covering the emoluments cases, it just requires time and there’s never enough time for everything.
Thomas: We don’t have that, yeah. [Laughs]
Thomas: Even today we have Wild Card Segment. [Laughs]
Thomas: I love Andrew. Andrew typed up a wild card agenda about the Woodward stuff and then put “HA HA, JUST KIDDING, THERE’S NO CHANCE WE’LL GET TO THIS” in all caps! [Laughs]
Thomas: So, I appreciate the dedication to the bit, Andrew. Since we’re not gonna have time to get to the Woodward stuff we’re declaring the wild card dead already. A lot of people are asking you about this, Bob Woodward has a tape of Donald Trump talking about how he knew the coronavirus was serious and all that and he wanted to downplay it from February, I believe?
Thomas: Yeah. So, he sat on that in order to sell a book, which I don’t – I really, really don’t understand and it frustrates me to no end. How do you feel about that?
Andrew: I agree with that 100%. It is, I think, kind of one of the enduring corruptions of norms that have happened under the Trump administration, and look, from Woodward’s perspective – a couple of things here. [Laughing] Number one, kind of ironic that Woodward and Bernstein got famous writing articles for the Washington Post as they were unfolding in real time to bring down Richard Nixon, they did not hoard those accusations and then put them out in a book some time in late 1976 after Richard Nixon was already finishing up his second term. On the one hand, this is as much steel manning as I can do – you do get the sense of, that you’ve expressed on the show of well, here’s another legal violation that nothing matters and nothing will ever happen out of it.
Thomas: Then why does it matter now? Why would it be good for his book, then? Either it matters or it doesn’t.
Andrew: Well, sorry. Matters in the sense of people will pay and feed and continue to consume outrage, but it doesn’t matter in a governmental sense. It doesn’t seem to do anything. And rather than that being a defense of Bob Woodward, that that’s an illustration of what our mission here at OA is. And I get it, we have folks on our side, we have folks who are sort of in the middle who will say things to me. I’ve had family members and friends, back when I interacted with a larger circle of friends, who would say “okay, but who really cares about the Hatch Act,” or “who really cares about emoluments clause violations?” This is an illustration of what happens when everybody gets used to the fact-
Andrew: Everything’s made up and the law doesn’t matter. I don’t think it was ever a deliberate thought by Bob Woodward to say “okay, rather than save lives I’ll just make money.” I think it was just the feeling of oh, what do I do? Why? Why should I run out, I’ll just get swallowed in another news story that will then pass over in a couple of days and nothing will change and nothing will happen. I don’t agree. Obviously, all criticism directed at Bob Woodward is valid. [Laughs] Not all, but your criticism of Woodward on this matter is valid. I agree with it. I think it’s a symptom of the structural cause which is this is why the rule of law matters, this is why you should care whether it’s your guy or a different guy. You should care that we have a presidency that establishes when you violate the law it-
Thomas: You keep saying violate the law. So, are you kinda telling us that there’s something in this that violated the law?
Andrew: Again, two answers to that. There’s nothing that you would be able to prove violated a specific legal duty the President owed to somebody else. I saw a certain lawyer that I will not repeat-
Andrew: Yeah, he’s on the Avenatti bandwagon. He’s been right about a couple of narrow things-
Thomas: How’s Avenattii’s presidential bid going? Is he, uh-
Andrew: Yeah, I don’t-
Thomas: How’d that end up?
Andrew: I haven’t checked in on his SuperPAC but I’m sure he’s got money squirreled away somewhere. This lawyer is claiming that this is gonna invalidate all of the waivers that Trump made attendees sign at his rallies. [Sighs] That argument isn’t crazy.
Andrew: Like if you conceal material facts from someone then that can invalidate contracts and waivers based on the intentional concealment of those facts but [Sighs] connecting up those dots is very, very difficult. Is practically speaking, as a lawyer, if you brought those facts to me and eliminated the President and you said, you know, here is the president of a corporation, Thomas Smith, I’ve got him on tape saying X and here are the liability waivers he made his employees sign I would say yeah, this is not gonna rise to the standard of being a provable fraud. That’s without it being the President. It isn’t so much that there is a legal, clearly defined and enforceable, legal duty, it’s much more – this is the kind of thing that used to be a scandal that would bring down the presidency before Trump and it should be again. When the President lies to the American people about matters of consequence, our system assumes that that will have consequences and when it doesn’t this is what you get.
Thomas: I wanna say a couple things. First, as the resident Negatron on the show, I take what you’re saying to heart here and I’ll try to do better. It’s true that we need to not defeat ourselves before Trumpism defeats us.
Andrew: [Laughs] This was not intended as a criticism of one actual Thomas Smith.
Thomas: Please, everything is a criticism of me in some way, that’s just how the world works! [Laughs]
Thomas: No, but really, I think you’re right that we should make them – or maybe I’m putting words in your mouth, but I think we should make them do the work of defeating us.
Thomas: I think it’s something that we’ve talked about before, especially with impeachment. You still – I think they still should be impeaching him and I’m alone in that. They shouldn’t be devoting a lot of time to it, but it should just be like – and I think you’ve agreed with that before.
Andrew: Yeah, we’re together alone on that.
Thomas: The standing committee of all the impeachable bullshit that Trump has done, and it should just be a laundry list and don’t make a big production about it, but keep track and make them be the ones who say no, we don’t care that he lied to these people and got hundreds of thousands of extra people killed that wouldn’t have been-
Thomas: -under any competent administration. If not eventually millions, by the way, we’ll see. So, I take that to heart, but I also wanna say this. I wasn’t thinking of it in terms of oh, this would’ve been the thing that would’ve impeached him or blah blah blah. I really think that had Woodward released this back in February it’s possible that either through hearing it or through Trump just kinda pretending it didn’t happen, which often happens, you know?
Thomas: He might’ve just changed his rhetoric and started taking it seriously and started telling his followers to take it more seriously. You know, I think there’s a good chance that might’ve been true, it might have made a difference, could’ve saved lives. Could’ve saved a lot of lives, potentially.
Andrew: I agree 100% with that and I was sort of taking that as a given.
Thomas: But no, Woodward has to sell his 14th book, he’s gotta make sure that 14th one really zings, really soars up the charts or whatever. I dunno. I don’t understand it. Well this was way more time than I wanted to spend, but thanks for briefly – we kinda did the wild card in advance to get to it because a lot of people had questions about that.
Breaking Down the Law – Right Wing Court Packing
Thomas: So, Andrew, should you congratulate your buddy? Your classmate?
Andrew: [Sighs] Yeah, yeah.
Thomas: Ted Cruz on potentially being- hey, you always say you shouldn’t be on the Supreme Court, and I always say yes you should. Do you think the evidence for my position has gotten a little better?
Andrew: No, I think [Laughs]
Andrew: To me – alright, so obviously what we’re talking about, a couple of judicial nomination stories here, the first is Donald Trump released his list of 20 new potential second term appointees to the Supreme Court. Immediately what I thought of was, I thought of the Simpson’s episode where Bart and Lisa are about to play rock, paper, scissors?
Thomas: [Laughs] Yeah.
Andrew: And Lisa says “poor predictable Bart, always throws rock.”
Andrew: And Bart says “good old rock, nothing beats that!”
Thomas: Yup! [Laughs]
Andrew: What it shows is when the other side is completely predictable you only need one play in your playbook.
Andrew: The Republicans, they know what this is and yet for some reason Democrats are afraid to throw paper. So, let’s be explicit about this: The reason this is a story right now is this is a deliberately crafted campaign event to shore up wavering Republicans. That’s it. The thing is, every four years we allow this to work. For some reason it is perfectly fine for wavering Republicans, and parenthetically I should add notwithstanding the public never-Trumpers and The Lincoln Project, every poll that I’ve looked at when you get to the crosstabs shows that Donald Trump has about the same level of support from registered Republicans that every Republican President gets. It’s not like there’s this huge chunk of intellectual Republicans that are withholding support from their nominee. We have a shirts and skins system and they’re lining up-
Thomas: Yeah, probably fewer people identifying as Republican nowadays by a little bit.
Andrew: Yes, that is true. On a macro, on a systemic level there are not a tremendous amount of holdup. Now, there should be, and you should – if you have family members that are gonna go in and reluctantly vote Trump, “I really care about reducing the capital gains tax,” you should be calling these people out. But look, the Republicans run this playbook every four years and it works. “We’ll cook the judiciary.” For some reason Democrats are afraid to say – judicial nominees were not mentioned at the Democrat National Convention.
Andrew: We are afraid in response to say – I would have liked, particularly on Wednesday, which had a ton of women speakers at the DNC, for somebody to say “hey, if you care about reproductive freedom and reproductive health in this country, maybe you don’t want Donald Trump picking Ruth Bader Ginsburg’s replacement.”
Thomas: Yeah, I thought you were gonna say just hold up “I have here RBG’s medical file, this is the speech.”
Andrew: Look, look-
Thomas: Look at it!
Andrew: I get it, I mean you don’t wanna weaponize the health of someone-
Thomas: Oh no, I’m very much serious about this. [Laughs]
Andrew: I agree, but you know, from a political calculus you do not wanna weaponize RBG’s health, but you do wanna remind Democrats in the same way that Trump successfully reminds Republicans. Anyway, his list has Ted Cruz and Tom Cotton, but it also has Josh Hawley on it? The recently elected senator from Missouri, who is 40.
Thomas: What was my rule, no Tucker’s? No Josh?
Andrew: Yeah, that gets into the Justin’s and Corey’s.
Thomas: Yeah. Justin’s, Corey’s and we gotta add Josh’s to it apparently.
Andrew: And that transitions nicely to the Senate Judiciary Committee, as we are recording this, is about to rubberstamp Trump’s latest nominee, Kathryn Kimball Mizelle, to be lifetime article 3 judge to the United States District Court for the middle district of Florida. So federal district court judge. This falls under your prohibitions on Justin’s and Corey’s. I do not need to tell you that a substantial majority of the American Bar Association rated her as not qualified.
Andrew: Remember the ABA gives you three ratings: well qualified, qualified – and by the way “well qualified,” this is like when you get your performance reviews and you get either “exceeds,” “meets,” or “fails to meet.”
Andrew: If you have a whole bunch of “meets,” that’s not good either.
Andrew: You’re expected to get exceeds. You’re expected to get well qualified. Mizelle was rated not qualified – and I’ve never seen them use this language before [Laughing] a substantial majority of the standing committee. That means there were perhaps one or two people who rated her qualified? They did not publish a minority report, which usually they do. So, they found her minimally qualified but refused to put that in writing. Thomas, we’re gonna play a little bit of a quiz.
Andrew: I just said Josh Hawley is 40, we’ve talked about Justin Walker. How old do you think Kathryn Kimball Mizelle is?
Thomas: I’m gonna say 38 just for fun.
Thomas: Woah! Hey, can I get on the list?!
Andrew: I wanna do more than that, because 33 you’re like okay, maybe child prodigy whatever.
Thomas: [Laughing] Child prodigy. Child conservative ghoul prodigy, has all the best answers to the [Laughs] how to ruin people’s lives and take away women’s rights and all that stuff?
Thomas: They’re just, they’re a prodigy at it, Andrew!
Andrew: Yeah, was admitted to the bar eight years ago but, you know, as you know there’s a difference between the date you become admitted to the bar and when you start actually practicing. What do you think her current position is?
Thomas: Like just in life?
Andrew: What do you think she does?
Thomas: Oh, I don’t – uh, real estate! [Laughs]
Thomas: I dunno.
Andrew: So, no. She is – I’ll give you the good part first.
Thomas: That’s a tough open-ended question.
Andrew: I know, I know.
Thomas: Not a lawyer! How about that? She is not currently an attorney.
Andrew: You’re almost right.
Andrew: Here’s why you’re almost right. So, she is an associate at Jones Day, which is a Covington & Burling style mega law firm, it’s a perfectly fine qualification. She has been at Jones Day – you wanna take a swing?
Thomas: Oh, here we go.
Andrew: Knowing that she was admitted to the bar in 2012, wanna guess how long she’s been at Jones Day?
Thomas: Let’s see if I can go 0 for 3 here.
Andrew: You will not get this right.
Thomas: Yeah, uh, 7 months.
Andrew: Well 10 months, yeah.
Andrew: By my insisting you will not get this right I got you to guess a preposterously low number.
Thomas: No, that was what I was already gonna guess.
Andrew: She’s been an associate for ten months!
Andrew: This is literally fewer qualifications than Morgan Stringer has to be a federal judge.
Thomas: Get Morgan on the bench!
Andrew: Get Morgan on the court, absolutely! I’m gonna now quote from the ABA letter, so again, 33, associate for ten months: “Since her admission to the bar, Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel, of her four distinguished federal clerkships,” one was in the trial court, “that year plus her ten months at a law firm, and approximately three years in government practice.” By the way, non-trial government practice. She was assisting the U.S. Attorney’s office and basically processing plea bargains. So, when taken all into account that translates into five years of experience in trial courts. Now that is exceptionally generous. The ABA then notes, rather dryly, “this represents a rather marked departure from the 12-year minimum we expect from judicial candidates.”
Andrew: They then add, “We have taken into account the nominee’s experience in federal grand jury proceedings, which are non-adversarial and do not take place before a judge. In each instance those proceedings resulted in the defendant’s agreement to a plea of guilty with no trial,” that’s to what I was just alluding. Then she submitted this on her application, and I just want to illustrate how embarrassing this is.
Andrew: “We are also aware that as a law school student the nominee participated as co-counsel with her supervising law professor in two one-day state court trials as part of her curriculum.” If you have to put stuff you did in law school on your resume-
Andrew: [Angrily] You’re not qualified to be a judge! That’s ridiculous. We did our fantasy football league last night; we were talking with one of the participants who is a current law student who’s going to do a practicum. That’s a great thing, this is a tremendous experience. We were talking about how’s that gonna work out?
Thomas: Yeah, fantastic for your entry level job. I remember having to do that. It’s all you have at first.
Thomas: You’ve gotta put down the stuff you did in college that really doesn’t matter.
Andrew: In law school when you’re 23 years old and you’re walking with your professor to, you know, hand over a couple – well the judge looks and says wow, we’re really pleased to see you here to have bright young minds who are gonna be the future of our legal practice. This is a joke. The idea that you would put that on your application to be a federal judge is the kind of disqualifying level of embarrassing that-
Andrew: Ought to shame the Senate Judiciary Committee and will not.
Thomas: Oh my god.
Andrew: So, should also add, her husband is Chad Mizelle, acting general counsel for the Department of Homeland Security, who graduated law school in 2013 and (quote) “had virtually no legal experience” before the two of them volunteered with the Trump campaign in 2016. This is the plan, to put these kinds of idiots into power and then roughshod over- and run roughshod over them. Look. [Sighs] You can be a lawyer in your late 20s and early 30s and be a lovely and delightful human being. I know many, [Laughing] I have one who works for me. You shouldn’t be acting general counsel for a major executive branch agency. You should not be on the bench for the next six decades. This is terrifying. And again, you’ve got anybody who’s leaning anywhere other than enthusiastically voting for Biden as many times as the law will allow, which is one-
Andrew: Then you know, maybe point out this makes a real difference.
Thomas: Speaking of deep dives we can’t even get to! Yeah, the President asking his supporters to vote illegally. Gosh, wow.
Thomas: There’s too much, too much news. So, this is horrible and I hate it, thank you.
Andrew: Yeah, you’re welcome.
Thomas: Yeah, great. Well if there’s anyway you guys can think of in the next couple of months to get a new President. If there’s any way you can think of, do that.
Thomas: I’d strongly recommend.
Andrew: Yeah, agreed.
Carroll v. Donald Trump Part 1 (Case Background)
Thomas: Alright Andrew, well you’ve kind of hidden our main deep dive at the end here.
Thomas: Interesting. I guess because I did the wild card first [Laughs] kinda threw us off. I saw this E. Jean Carroll news flash on the New York Times and the Washington Post, all this and I don’t know what to make of it. I’ve also heard some other coverage of it, I’m very confused. How in the world is the DOJ taking over Trump’s defense in this E. Jean Carroll, which, by the way, I supposed it’s a defamation case, right? It’s not specifically for the criminal sexual assault that he’s alleged to have done, it was more for his denial of it. Then she sued for defamation because of the denial, is that correct? Do I have that part right?
Andrew: Yeah, you [Laughs] already you know more than most media outlets have been reporting.
Andrew: No, that’s not a joke, that’s true. So, before we talk about this segment, Thomas, you and I discussed this and it’s really important that we deliver a content warning to our listeners. We are going to discuss E. Jean Carroll’s defamation lawsuit against the President and we’re gonna discuss – not in graphic detail, but we are going to discuss the nature of that which is his denials of an alleged sexual assault, an alleged rape. So, you need to know that we’re gonna have that discussion and if for your sake of self care you don’t wanna listen to that segment don’t listen to this segment. Let’s break this down, we’ll do this our usually OA sanctioned way of reading a complaint backwards. Let’s begin with that.
In November of 2019, E. Jean Carroll, who I hadn’t heard of before but she’s a minor celebrity. She is a celebrated relationship advice columnist, and she filed this lawsuit November of 2019. It is a defamation lawsuit. Again, same trick, read it backwards. Go to the very end, she is represented by Kaplan Hecker & Fink, and that is – we’ve talked about law firms like Jones Day, Covington & Burling, mega firms with hundreds or thousands of lawyers that are topnotch full-service big law firms.
Thomas: It’s when Mr. Burns pushes the button-
Thomas: And the warehouse door opens and it’s all a team of attorneys.
Andrew: Yeah, that’s exactly what it is. But look, you would also know that you’re not getting a crankery when you’ve – it’s not to suggest they’re always right, it’s not to suggest [Laughing] believe me, it is not to suggest they’re not allied with the forces of evil, which they are sometimes.
Andrew: It is to say it passes a minimum threshold of legal responsibility.
Andrew: You don’t see crazy stuff coming out of mega firms. I haven’t talked much about firms like Kaplan Hecker & Fink, which fall into the category of what we call boutique firms.
Andrew: A boutique firm is basically what happens when – there are a bunch of different ways, but oftentimes one of the ways in which these firms get started is that practice heads at big law firms who have a substantial stable of clients and a well-recognized pedigree and, you know, awards in the year, will leave and take some lawyers with them and start a firm that has all of the hallmarks of, you know, a Covington, of top notch, but they say “hey look, the firm will specialize in a very narrow, particular area.” Like, say, white collar criminal defense or plaintiff’s lawsuits against the government, things like that.
So, Kaplan Hecker falls into one of those categories. They are a boutique litigation firm that specializes in liberal litigation that is adjacent to the government. They do some white-collar criminal defense, they also represent individuals in title 9 discrimination lawsuits, stuff like that. Quality, credible firm. Robbie Kaplan is just an unimpeachably well credentialed lawyer. So, you start with that.
As you point out, this alleges a single count of defamation.
Thomas: Because I have to assume a statute of limitations on whatever the original offense, right?
Andrew: Exactly, that’s right. So, here’s how that gets unpacked. You start off at paragraph 22, and this is the underlying event. Between the fall of 1995 and the spring of 1996, Carroll was shopping at a New York luxury department store called Bergdorf Goodman. I’ve never heard of the store, apparently, you know, it exists and it’s a place that wealthy New York socialites like to go and shop. She met Trump, she flirted with him, they went inside and then he allegedly raped her inside one of the dressing rooms. She then stayed silent, and again I add this detail, these are her allegations but this really stands out. Celibate for the next two decades.
Andrew: To date. She alleges in her complaint that she has not had sex since, which again I want to point out as a plaintiff when you make that allegation in your complaint, you are affirmatively putting that fact into evidence and you are inviting the defendant to introduce evidence to dispute that fact.
Thomas: Right. Wow.
Andrew: Typically, in a case like this you would have strong arguments related to your sexual history, that’s not relevant to whether you were raped on that particular occasion. To affirmatively introduce that into evidence by competent counsel-
Andrew: I draw some very strong inferences.
Thomas: Yeah, so that signals – that’s a serious thing, that’s not something you would casually do, this isn’t a made-up thing.
Andrew: If you are – I would say two things with respect to – I’m gonna say three things with respect to is this a made-up thing? Number one, the timing does not suggest this.
Andrew: This was brought November of 2019; this was not brought last week.
Thomas: I wanna make very clear, I listened to a bunch of interviews with her when this happened. I very much believe her, I wasn’t suggesting I didn’t or anything, I’m just saying for perhaps people who are doubting it or something this is good evidence.
Andrew: Look, you have to tread carefully here because the underlying principle of because something is an allegation in a complaint doesn’t make it true.
Andrew: And we’ve said that. You have to evaluate – we do this all the time – the credibility of the complaint. I would say point one has to do with timing. Point two, maybe I should have made this point one, yeah, you do not need this complaint to say “boy is our allegation of sexual assault against Donald Trump credible?” We have his own words. So, you know, you don’t need any of that. The third point, we’re not gonna get into the details here, but if you go into paragraph 22 and you read the details you can form an opinion based on reading those details.
Andrew: That’s what I’ll say with respect to that. So, okay, that’s kinda the first set of facts, the description of the alleged event. Then there is a section about staying silent for two decades, why she did that. Then beginning in 2017 she began working on a book called “What Do We Need Men For? A Modest Proposal.” It was about the 21 worst men that she’d encountered in her life. That contained stories of two accounts of sexual assault. One sexual abuse was alleged rape from a camp counselor when she was 12 and the other was the Donald Trump story. An excerpt of that was published in the New York magazine on June 21st, the book was not published until July 2nd. Very standard to publish a blurb from the book before the whole book comes out.
So, the June 21 article comes out, and then the President is asked about it. He makes three statements about that story, and I’m gonna read some of his statements to you because these are the three statements that are alleged to be defamatory. The first was on June 21st.
Here’s Trump saying “Regarding the (quote) ‘story’ by E. Jean Carroll, claiming she once encountered me at Bergdorf Goodman 23 years ago. I’ve never met this person in my life. She is trying to sell a book. It should be sold in the fiction section … If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible. The world should know what’s going on. It is a disgrace and people should pay dearly for such false accusations.” I omitted some internal stuff there.
Thomas: [Laughs] Yeah.
Andrew: Because it’s a Trump statement so you have to.
Thomas: Yeah, exactly.
Andrew: Right. So key response there, “I’ve never met this person in my life.”
Thomas: Yeah that seems disprovable.
Andrew: Yeah, so next day a picture surfaces of Trump with Carol. We might wanna use this as the cover for the show notes, I’m certainly gonna upload it.
Thomas: On a scale from one to Jeffrey Epstein, how many times has he met E. Jean Carroll? [Laughs]
Andrew: Yeah, I mean at least once.
Andrew: This picture shows – it is taken from over Trump’s right shoulder and it shows him engaged in conversation with her. He’s looking straight at her, they’re at a party together. So, as you might imagine, he gets asked again and here’s his response on June 22nd: “Oh yeah, standing with coat on a line -give me a break – with my back to the camera. I have no idea who she is. What she did – it’s terrible, what’s going on. Sot it’s a total false accusation and I don’t know anything about her. And she’s made this charge against others.”
Andrew: “And, you know, people have to be careful” blah blah blah blah blah, “But this was about many men, and I was one of the many men that she wrote about. It’s a totally false accusation.” You know, so on. “You know, there were cases that the mainstream media didn’t pick up … they were put on Fox. But there were numerous cases where women were paid money to say bad things about me. You can’t do that. You can’t do that. And those women did wrong things—that women were actually paid money to say bad things about me.”
Andrew: Okay, so we’ve talked about the factual allegations, that doesn’t really seem to match up. Then finally, June 24th, interview in Politico in which Trump, and apparently last time he ever gets asked about it: “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?”
Thomas: Great respect, there.
Andrew: Yeah. You always know. That is the – whenever Donald Trump begins “I’ll say it with great respect,” he’s about to say, you know, the equivalent of “I wouldn’t even rape you.” That’s our President, those are the three statements that are alleged to be false and therefore defamatory. Again, the lawsuit hinges on whether they were false.
Carroll v. Trump Part 2 (Legal Analysis)
Andrew: So that lawsuit was filed, as I said, in November of 2019 in state court in New York. Put a pin in that. You may have seen that two days ago it was removed to federal court, and it was moved to federal court under the federal tort claims act, specifically under 28 U.S.C. § 2679, so that’s kinda where we’re gonna start our deep dive on the facts, because as folks noticed this was a motion that was filed by the United States Department of Justice. This lawsuit is against Donald Trump individually, as a person, for defaming her, it is not against the U.S. government. A lot of people were asking why on earth is Bill Barr involved?
Andrew: And look, it fits directly. You sent it to me and my initial responses was well, this fits perfectly within Donald Trump’s personal takeover of the Department of Justice to be his own personal fiefdom. Turns out the story is actually a little more complicated than that.
Andrew: Has to do with the federal tort claims act. What is that? How is it involved here? We’ve talked about the concept of sovereign immunity before. Sovereign immunity is one of those delightful old timey 13th Century things that is neither delightful – it basically says the king can do no wrong.
Andrew: There’s a Latin phrase for that that I can’t pronounce. But basically, you didn’t get to sue the king for civil torts. He’s the king, he was a sovereign, he was immune. That principle applies to governments. Governments are sovereign, they’re immune, they can commit torts against you, they can trespass, they can be negligent. They can do all the things, private people can sue each other, and you can’t sue them unless they say you can sue them. If they say you can sue them then you can sue them for the stuff that they authorize you to sue them over. That is what the federal tort claims act did, it said you can sue the United States for various kinds of torts-
Thomas: Right. When we tell you you can.
Andrew: Yeah, but look, that’s a real thing.
Andrew: You know, it opened up the possibility of people recovering from actions by the government. But remember, the government isn’t a thing, the government is staffed by people. Those people are federal employees, so then the question became if a federal employee does something to you is your lawsuit against that person or is it against the federal government? For a long time, the answer to that was it’s kinda up to the courts to decide.
Andrew: That really hit a head in a case called Westfall v. Erwin from 1988. Just super briefly what happened was there was an employee who was working in a government warehouse and he said “hey man, you’ve got all this toxic stuff lying around,” it’s called soda ash? I have no idea what that [Laughs] I don’t know how a soda even has ash?
Thomas: That sounds great.
Andrew: Yeah, it doesn’t sound great, it’s toxic, and he said this is leaking out of the containers, stop making me work around the containers that are leaking this crap. His supervisor said no, you still have to stock up the leaking containers, the guy got super sick and he sued the supervisors. The Supreme Court said that when it comes to suing a government employee, they don’t automatically get immunity under the federal tort claims act, they instead get absolute immunity only if the challenged conduct is (quote) “within the outer parameter of an official’s duties and is discretionary in nature” (end of quote).
Here’s what that means in a practical sense. It means, after this case, that courts could decide that you could sue government employees personally for stuff they did at work if what they were doing was not within the outer parameter of their duties and if it was discretionary – if they had the opportunity not to do it. You could see how that happened out of the Westfall case. You’d wanna say yeah, if your supervisor, if you’re doing something because the government makes you do it then you sue the government, but if the harm is because your supervisor is being a jerk than maybe the lawsuit should be against the supervisor-
Andrew: -and not against the government. Well, that immediately was met with bipartisan legislation. [Laughs]
Andrew: With what is now called the Westfall Act. And look, the underlying argument here makes sense. The argument is you don’t wanna deter people like our friend AG from going to work for the VA. You don’t wanna deter people from entering government service, there are already a lot of deterrents to that, namely by and large in the supervisory positions you’re paid a lot less than you would be paid in the public sector. Let’s not say [Laughing] Oh by the way, one of the additional downsides of working for the federal government is you might get sued. You know, people are like let’s protect federal employees against being sued in tort for activities undertaken within the scope of their employment.
What happened was they passed the Westfall Act, and that phrase, “torts against federal employees during the scope of their employment” are now transformed into suits against the U.S. government. And that is 28 U.S.C. § 2679. Here’s what happens: When you sue a federal employee for acts committed during the course of employment, they A) notify the Attorney General, then B) the Attorney General makes a determination as to whether those acts are within the scope of your employment or not. Then if the Attorney General decides that it is, the Attorney General can then move to remove the case under 28 U.S.C. § 2679 and substitute the United States as the party for that federal employee. That determination, by the way, is subject to judicial review, but the Attorney General’s consideration is considered prima facia evidence.
So now the question becomes was the president of the United States acting within the scope of his employment when he issued blanket denials of having raped E. Jean Carroll.
Thomas: A citizen would think no.
Thomas: But are you here to tell us otherwise?
Andrew: The answer is we don’t know.
Andrew: Obviously there are no cases directly on point. The cases – there are not a lot of cases about the Westfall Act general.
Thomas: So, Clinton?
Andrew: Because Clinton’s, the allegations against Bill Clinton – all of them were alleged to have occurred while he was not in office. Here the allegations are specifically about-
Thomas: Oh, yeah.
Andrew: -the statements given to the press while he was the President.
Thomas: Also, Bill Clinton, a lot smarter than Donald Trump, probably kept from outright slander.
Andrew: Certainly the case. So, there are not a lot of cases about the Westfall Act at all, and there are only a handful that are about what counts as being within the scope of your employment. They’re the kinds of things you would expect. So, a postal employee driving the mail truck to lunch – you can see how you might say alright, they’re in the Post Office’s truck when they hit somebody, but they were going to lunch they were not delivering the mail, so was that within the scope of their employment? Yes. IRS agents testifying against people, okay again, they took some time off and went to testify, but they were testifying in a fraud lawsuit about fraud uncovered by the IRS.
But I will tell you, the general scope of what constitutes “within the scope of his employment” seems to be broad. The closest case I can find that’s on point is a trial case called Saleh v. Bush and it was a class action on behalf of Iraqi civilians with respect to the invasion of Iraq against Bush, Cheney, Rumsfeld, Condoleezza Rice, Colin Powell, and Paul Wolfowitz for war crimes. That was removed under the Federal Tort Claims Act and the United States was substituted as a party. This is the only case I can find that analyzes the President. And it says conducting the Iraq war is within the scope of the President’s employment. The standards that are used are super not helpful here. [Laughs]
They use, I think we’ve talked about what the restatements are, don’t have time. If not, we can do it in another deep dive, but they’re quoting from the restatement of agency which says is this the kind of act that you are employed to perform?
Thomas: Yeah. Well in this country, yeah, bombing the Middle East? Probably-
Thomas: -considered to be what you’re expected to do as President.
Andrew: Did it occur substantially within the authorized time and space limits? I.e. while you were the President? Was it actuated at least in part (I love this language) by a purpose to serve the master? [Laughs]
Andrew: Right? So, for the President, the President has no master. Again, remember, these are left over from feudalism so-
Andrew: They really do have that, like, manorial quality. The D point was has to do with if you use physical force against somebody, and it says “if force is intentionally used by one servant against another the use of force is not unexpectable by the master.” Again, remember, this is the defamation lawsuit.
Andrew: It isn’t about underlying activity, so that doesn’t matter. So really the two questions are when the President of the United States denies rape allegations on national television is that the kind of thing we expect the President to do? And is it articulated, actuated, was it done at least in part by a desire to serve the master, which would be in the public interest. And look, [Sighs] I don’t think my anti-Trump credentials need any burnishing here, but there is a totally reasonable argument on both of these. The reasonable argument is, yeah. I was asked this question in public because I’m the President.
Andrew: So, we expect our Presidents to talk to the press.
Andrew: And my denying criminal activity-
Thomas: I have been employed to be a liar.
Thomas: I was voted in as a liar at all times, everyone knows I lie with everything I say.
Andrew: That is true. But here the Dershowitz argument from impeachment is, I think, actually salient. Which is yes, I am denying these allegations in order to get reelected. Why am I doing that? Because I would personally like to be reelected but also because I think it would be better for the country if I was reelected.
Thomas: Yeah, not enough people died yet, I have more work to do.
Andrew: I have no doubt in my mind that Donald Trump honestly believes that it will be better for the United States if he is reelected.
Thomas: Actually, I do doubt that? But I don’t think he cares. But anyway, sure, we’ll legally speaking-
Andrew: I agree. So okay, now put all that together. There are reasonable grounds to at least argue that giving interviews is within the scope of the presidency and is motivated by a desire to get reelected, which can be spun as having the interests of the public at heart. Is it case closed? Oh, and add, remember the Attorney General’s determination is given prima facia weight.
Andrew: In other words, you have to have a strong reason to overturn that. Again, it’s not an insurmountable burden, but if you just have “eh well maybe not,” the prima facia case goes to the Attorney General’s determination.
Thomas: Oh, well, you could’ve cut to the chase there. I didn’t realize that our Mr. Evil rubberstamp Attorney General gets to ultimately decide.
Andrew: Well again, the court can review that.
Andrew: There’s no deference owed to that. The court can say that determination was erroneous because of X fact, and this is a trial court.
Andrew: They’re free to look at the case. It just means if there are no facts to the contrary, ties go to the Attorney General.
Andrew: So okay, is this gonna end on an unhappy note? DOJ is gonna take over the defense here? I don’t think so.
Andrew: I want you to pull back out that pin I told you to put in, you know, twenty minutes ago or so.
Thomas: I lost it. Sorry. [Laughs]
Andrew: I know. That is, this lawsuit was filed November 4th of 2019. You might be asking why are we just now – I know the wheels of justice churn slowly and all that.
Thomas: Yeah, I was gonna say that, but yeah.
Andrew: Right, but it’s eleven months later! [Laughs] That seems like an awfully long time to wait to do something, and in fact it is an awfully long time. I will include the state court docket which has, as of today, 111 entries on it. And a docket entry, right, as those of you who are following along with our amicus brief, a docket entry is every time either a party or the court does something in the case. So, every time there’s a motion or every time there’s a ruling. The court’s done 111 things in this case, including resolve substantively a motion, by the President, made by and through his inept counsel Marc Kasowitz that we’ve talked about (he’s the person who represents Trump in the Summer Zervos case) to stay the case. That order was decided August 6th and entered on the docket August 8th. But look, that motion was made in February. [Laughs] February of 2020.
Go beyond that, the President has filed an answer and affirmative defenses in this case. In other words, this case was litigated in state court for more than ten months before the President discovered oh hey look, maybe I can remove this under the Federal Tort Claims Act and the Westfall Act. When I look at the timing under removal, which is 28 U.S.C. § 1446(b), I could quote this by heart because I have to remove cases to federal court all the time. It says the notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the summons.
In other words, you have a hard deadline of 30 days to remove a case to federal court. If you don’t, that’s waived. And it’s waived for precisely the reasons we see here. We don’t want litigants to say okay, well, I’m gonna litigate this out in state court then lose and say “[Laughing] Oh no no no, did I say state court? I meant federal court” and start all over again. That’s exactly what would happen if this removal is approved. I anticipate that this case will get remanded back down to the state court, that this is not gonna work.
Andrew: So we’ve got to the same result. Everybody is focusing on the Department of Justice intervening, but there’s no explanation of the failure to timely abide by the statute. Maybe I’m missing something, I mean [Laughs] I told you this before the show. I’m always afraid when I’m like way out on a limb that no one else is out on? But this seems super-duper clear to me.
Andrew: You don’t get to litigate-
Thomas: You don’t get to try once, fail, and then be like do-overs! I declare federal taksies backsies!
Andrew: [Laughs] Correct! And this is not just – there’s some level of questions about, you know, let me give you an example to the contrary. You file a lawsuit against me in federal court, I first move to dismiss, it takes a year before the court rules on it, the court denies my motion to dismiss, well then I get to answer. In other words, filing the motion to dismiss was not consent to the court’s jurisdiction over the case. But that’s not what happened in this case. In this case, Donald Trump in his individual capacity, by and through his personal lawyer, buffoon Marc Kasowitz-
Andrew: Absolutely 100% conceded to the jurisdiction of the state court, which is confusingly called the New York County Supreme Court. I – a bunch of states will do that, they’ll have their trial courts be called supreme courts? I don’t get it at all but [Laughs] I’m sure there’s a 13th Century Saxony reason. In any event, they moved for relief from that court. It’s way, way, way too late. I don’t get why anybody else isn’t talking about that.
Thomas: Wow! You heard it here first, folks!
Andrew: Yeah, tell me I’m wrong but-
Thomas: So you think a judge will just say “no.”
Andrew: I think absolutely. Again, unless there’s some exception that I don’t know about, I think the judge is gonna look at this and say this notice of removal was not timely and therefore we’re remanding back. You’ve waived your rights, if any, under the FTC Act and the Westfall Act. You failed to comply procedurally with 1446(b). And let me give you just a little bit of a sidenote on that because it’s really important. I had a case that I had to remove – again, removing to federal court is a totally ministerial action. You file a one-page document that says “hey, this is the grounds for our removal,” usually because there is diversity jurisdiction, and you attach the state complaint and the state docket and you say “here’s the case, we’re removing it.” It does not require any legal analysis.
I had a case on behalf of a client that I needed to do that, and as it turns out I went to login to my CM/ECF, my online filing, and because there was a glitch in the system I couldn’t, it wouldn’t let me log in and this was the day it was due. I tried a bunch of times, then I called up the court and I said “hey, I have a filing today,” and they were like oh yeah, yeah, we can get that fixed in a couple of days. They did, but I had to go out and get a friend of mine to serve as co-counsel and file the case under his name because if I’d failed to file on that day my client would have lost their rights to remove.
Some deadlines are, you know, oh well you missed this by a day or two, no big deal. This is one of those deadlines that absolutely is a big deal. Every lawyer knows it. Maybe I’m missing something but-
Andrew: I think it gets kicked out.
Thomas: Well there you have it. So, I guess the topline summary here is probably this seemed outrageous at first, like I thought this was another Bill Barr having taxpayers pay for Trump to sexually assault people. It’s not quite fair to say that it’s that, sounds like, but sounds like they tried to play a little legal game here and get a taksies backsies and that shouldn’t, hopefully, fly? Is that a good accurate summary?
Andrew: I think that’s right and I would add one more thing. Their arguments, analytically, are not implausible, but they are overly aggressive.
Andrew: That’s why I think it didn’t occur – it’s clear what happened here. This never occurred to Kasowitz to submit this under the Westfall Act.
Thomas: Oh, until he saw how corrupt Bill Barr was and he was like “Oh! My gosh!” [Laughs]
Thomas: My ticket outta jail!
Andrew: And again, November 2019, all the rest of us had nine months of notice of oh, yeah, Bill Barr is super corrupt. But like I said, Kasowitz is kinda a moron. Oh man, I would love it if he sues us for defamation! Marc Kasowitz, Opening Arguments Media, LLC, [Laughing] a Maryland Limited Liability Company! Anyway, it’s very, very clear that they thought of this when they lost.
Andrew: So as I pointed out, it’s within 30 days of the date of the entry of the order denying the motion to stay, that’s certainly gonna be their argument, but that’s not the way removal works! When you move a court to stay, you’re not saying “I don’t think you have appropriate jurisdiction over this case.” You’re saying to the court, well you do unless this other thing happened. Basically, they wanted to stay pending the outcome of the Summer Zervos lawsuit, as we’ve discussed on the show, in which the President is, through Marc Kasowitz, arguing very stupidly that the President is immune to everything and the judge in New York was like yeah, no, that’s a dumb argument and we’re not letting you stay the case because of that. They had set a scheduling conference for September 20th, and that’s when somebody, either Trump or Bill Barr or somebody in between was like “hey, maybe we could get this removed to federal court and let the DOJ take over?” So there you go.
Thomas: Alright, well there you have it! Wow, what a good Torrez signature breakdown!
Thomas: That’s counterintuitive but also a prediction. I can’t wait, when do we find out, by the way, whether or not your prediction holds up here?
Andrew: The opposition to the notice of remand will be filed within three weeks, so yeah, we’ll know soon.
[Patron Shout Outs]
Thomas: Well now it’s time for T3BE, I’m coming off a victory! I’m coming off a Chariots of Fire, so, you know, I’d better string together two in a row, here!
Andrew: I love that it’s Chariots of Fire! [Laughs] That’s so good! You have picked two excellent ones.
Thomas: It inspires me even more. You know, I’m studying I would say twice as hard as I was before. Nay, 100 times as hard!
Thomas: ‘Cuz any number times zero is … zero.
Andrew: An actor-
Andrew: – straight out of drama school –
Thomas: Here we go!
Andrew: and an agent entered into a one-year written contract that described the services the agent would provide. Because he was eager for work, the actor agreed, in the contract, to pay the agent 15% of his yearly earnings. At the end of the year, the actor was so pleased with his many roles-
Andrew: that he gave the agent 20% of his earnings. After the first contract had expired, the actor and the agent decided to continue working together. They photocopied their old contract, changed the date, and signed it. At the end of the year a dispute arose as to what percentage of earning s the actor owed. It is a trade practice in the acting profession for actors to pay their agents 10% of their yearly earnings, payable at the end of the year.
Andrew: By the way, that’s not true but that is just for the purposes of the question.
Andrew: Okay, so What percentage of the actor’s earnings is a court most likely to award the agent?
Thomas: Oh wow.
Andrew: I love this question.
Andrew: This is a super typical bar question. So, A) 20%, because course of dealing is given greater weight than trade usage.
Andrew: B) 15%, because it was an express term of the contract.
Andrew: C) 10%, because trade usage is the applicable default rule.
Andrew: Or D) Nothing, because the contract is too indefinite.
Thomas: Okay well I don’t think it’s D.
Thomas: Yeah, this is a great question. Okay. One-year written contract. Okay, I mean the contract seems good to me. Like D seems terrible, I don’t, that can’t be right. They photocopy the old contract, change the date, I mean yeah, that’s whatever. People do that, there’s nothing that says you can’t do that. Signed it and the contract says 15%. So the end of the first year he gave him 20%. I don’t – okay, here’s what I think. Right off the bat I do not think 10% is it and I do not think nothing is it. That’s just, like, I don’t know why you would go to 10%. It really feels like you’d either have 15, which you signed, both people signed it, they signed 15%, that’s the agreement. Maybe I can see an argument that like, you did 20%. Sometimes, you know, in these legal matters sometimes that takes effect. I’m pretty strongly eliminating C and D. So C was 10% and D was nothing? I’m pretty pos- as positive as I can get on these questions which is, you know, not very.
Thomas: But I was positive as a lawyer can get.
Andrew: I’m as mad as I’ve ever been! Which is not at al.
Thomas: That it’s either A or B. So A is 20% because course of dealing is given greater weight than trade usage. Okay, that’s interesting, so that has the trade usage language in there, so that might be a reason away from that answer. B, 15% because it was an express term of the contract. You know, I hate to go with the boring answer, I mean it really feels like B to me? We’re already over time so I don’t need to kill any time or anything, but like, I could see an argument for 20% but here’s the thing, if I were gonna say 20% my reasoning would be 20% because course of dealing, you know, why is trade usage even part of it? I dunno. Oooh, I could be wrong here, but I feel like if you have a signed contract, you both agreed, and in the first year the guy said well, you know, you’ve been good to me, I’m essentially giving you a bonus, I’m gonna pay you a little more than we agreed. I do not see how that could possibly result in 10%. Like okay, we’re gonna go to what’s normal here? I don’t [Sighs] it doesn’t seem out of the ordinary or that unreasonable to have a contract that’s 5%, 5 percentage points higher than the trade. That’s not like I’m paying you 90% so it’s so unfair that we’re gonna have to whatever. I don’t … yeah, I kinda lean toward B because A, 20% because course of dealing is given greater weight than trade usage. If it were A 20% because course of dealing, you know, somehow supersedes the written stated terms of the contract or something, like if that was the reasoning I think I may lean toward that a little bit, or at least consider it more, but gosh, I think I must be really missing something here or this’ll be a surprise one, otherwise I think it’s just B, 15% because it was an express term of the contract. Seems that simple to me. So B, final answer.
Andrew: And if it seems that simple to you or maybe not, feel free to play along, 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: Thanks so much for listening, thanks so much for our signature Andrew Torrez breakdown, really interesting. I definitely feel more informed than perhaps consumers of other news sources on that story, because I didn’t hear that from anyone else. But thanks, Andrew, for that, and we will see you folks on Tuesday.