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Topics of Discussion:
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 428. I’m Thomas, and that over there is the birthday boy!
Andrew: [Laughs]
Thomas: Mr. Torrez, how’re you doing, sir?
Andrew: I am doing fantastic! Well, you know, a fly has settled in on me and is gonna live on my head for the balance of our recording, but other than that I’m doing great.
Thomas: You’re the picture of vitality.
Andrew: [Laughs]
Thomas: You’re not a rotting corpse like some people I could name.
Andrew: Oh, yeah.
Thomas: It’s already played out.
Andrew: I know.
Thomas: It’s been 12 hours, every fly joke and meme and Twitter account has been made, but still it’s funny. I’m with you, it’s still funny.
Andrew: Yeah.
Thomas: But happy birthday!
Andrew: Well thank you!
Thomas: I know it was yesterday.
Andrew: It was.
Thomas: Yeah, we celebrated by actually talking baseball for like a half hour before the show.
Andrew: I know!
Thomas: Good times.
Andrew: It was great! I appreciate, I know what a gift that was from you to me.
Thomas: [Laughs] No!
Andrew: And on your birthday I will make up for it, we will talk hockey for the pre-show.
Thomas: I had genuine baseball questions. I like watching the playoffs.
Andrew: Yeah!
Thomas: There is way too much to talk about, oh my god I can’t even believe the news.
Andrew: [Laughs]
Thomas: I wake up and some Trumpers are trying to kidnap Gretchen Whitmer and [Sighs] What is? [Sighs]
Andrew: Yeah.
Announcements
Thomas: Let’s get to our announcements before we can even get to the show.
Andrew: Yes, the FBI just released the supporting information and affidavit from FBI agent Richard Trask, which I think that’s an Avengers name too.
Thomas: Hmm.
Andrew: [Laughs] Anyway, involving a plot of right wing lunatics to kidnap Michigan governor Gretchen Whitmer, and it is – it’s clear, we’ve got the document linked in the show notes so you can go read this affidavit for yourself. It is 100% certain that this is directly as a result of our President saying, you know-
Thomas: Liberate Michigan. Yeah, he tweeted out liberate a lot of states.
Andrew: So, as you read the affidavit the good stuff gets about 7- or 8-pages in. So, paragraph 18, in an encrypted group chat the ringleader says “OK, well how’s everyone feel about kidnapping?”
Thomas: Well that’s what you call a bad document. [Laughs]
Andrew: Yeah, that’s not great to have on the record. Then he talked to somebody else on the phone and narrowed down his attack targets to the vacation home and Whitmer’s summer residence and posted on a [Laughing] private Facebook page, (quote) “We about to be busy, ladies and gentleman, this is where the patriot shows up, sacrifices his time, money, blood, sweat, and tears, it starts now so get effin’ prepared.” They talk through … it’s comical.
There’s no legal analysis that I can give other than we have a President of the United States such that right wing terrorists are hanging on his every word and conspiring to commit crimes thanks to his encouragement. You know, maybe if you think that’s a bad thing [Clenched Teeth] maybe that will extra motivate you to go vote for Joe Biden.
Thomas: Yeah, yeah. I don’t think anyone’s committing any crime on Joe Biden’s behalf! [Laughs]
Andrew: No! Right! That’s exactly right. I’m gonna make a yard sign that says that.
Thomas: Yeah, what are they-
Andrew: Joe Biden, Kamala Harris, nobody’s gonna commit a crime because they told them to!
Thomas: No, they’re just gonna take a nap or put on some aviators.
Andrew: Yeah!
Thomas: I dunno I’m trying to think what else he might inspire. This is all fun and games when you spoil an idiot plot to do something like this, but jeez, what if there’s a group of people that does something like this and pulls it off and isn’t, you know? Isn’t stopped. This is dangerous times we live in, Andrew. This is crazy stuff.
Andrew: It is, and I read – I feel like I should sort of counterbalance. I read paragraphs 18 and 19 which are funny. Let me read paragraphs 34 and 35 and sort of kill the mood here.
Thomas: That’s what we like to do!
Andrew: There you go! Paragraph 34, ring leader says “She effing loves the power she has right now. She has no checks and balances at all. She has uncontrolled power right now. All good things must come to an end. I can see several states taking their effing tyrants. Everybody takes their tyrants.” “The group all discussed how many people should be involved in the kidnapping operation.”
Then paragraph 35, more conversations. “We’re doin’ all the reconnaissance work, so it should go smooth. Everybody down with what’s going on? If you’re not down with the thought of kidnapping, don’t sit here.” One of them replies back “oh no, we’re not kidnapping, that’s not what we’re doing,” “which sparked general laughter. Amidst the laughter another voice said, ‘No children!’ and a voice said, ‘we’re adult napping.’” “Franks stated, ‘kidnapping, arson, death. I don’t care.’ The group then started discussing destroying the vacation home.”
Again, we’re having a chuckle as you point out because these people are buffoons and got stopped by an elaborate FBI operation, but because they are so radicalized by right wing rhetoric they sat around and said “this is a tyrant, we have not choice but to kill, engage in kidnapping, arson, death, I don’t care.” That should be terrifying to you.
Thomas: Yeah.
Andrew: It is terrifying to me.
Thomas: I imagine they were getting Fox News pumped directly into their veins all the time.
Andrew: Yeah.
Thomas: Probably One America News or something. That’s a real Brutus there.
Andrew: Yeah.
Thomas: That would rewrite Julius Caesar a bit, I think Shakespeare if he had to write it: “Ah, he’s got too much effin’ power!” [Laughs]
Andrew: [Laughs]
Thomas: Definitely wouldn’t be quite as elegant, but-
Andrew: “Crassus I beseech thee, she has too much effing power.”
Thomas: [Laughs] Oh boy, this is horrifying!
Andrew: It is, there we go.
Thomas: Okay, more announcements!
Andrew: So, we’re gonna have a brief interview next week, but I wanted to give everyone a heads up that I’m doing a TED-style talk at the Access For All, Plain Language is a Civil Right. This is a judicial conference, so it’s a three day, super interesting, I’m really, really excited about it. We’ve talked about, I mean part of the theme of Opening Arguments is lawyer stuff doesn’t have to be in scary Latin words. I think the idea of expanding and arguing for plain language, particularly on behalf of marginalized individuals, is really crucial.
I’m not talking about this in my talk, but we’ve talked about how the court denied the criminal defendant who said “yo, I want a lawyer, dog.”
Thomas: Yeah.
Andrew: As a request to lawyer up. That’s because of this artificial distinction between legal language and plain language.
Thomas: Plus a healthy dose of racism.
Andrew: Yeah well obviously. So, we’re gonna flag that. I also wanna say prior to that, I’m gonna include the link in the show notes, if you want to attend the conference, this is one of these three-day judicial conferences, it’s typically $350 bucks. You can go for $75 bucks as an OA listener.
Thomas: Are we talking digital thingy?
Andrew: Yeah.
Thomas: Because I can only assume that if this was a real conference you would have me in like a glass display case. “Observe what plain language can do for this normal man as he tries to answer law questions!” It would be like a King Kong situation.
Andrew: I don’t wanna spoil my talk.
Thomas: [Laughs]
Andrew: But I talk about you, I talk about T3BE in my talk, because as you well know one of the things that I always bring up when I discuss the show with lawyers is T3BE. I always ask them, “hey, so how do you think Thomas is doing?” And they go “well, a bar exam is multiple choice, you have a one in four chance of getting it right, so that would say 25% by chance, so I’m gonna guess 20%.” I’m not kidding, I get that answer all the time from lawyers. So yes, you do feature in the presentation.
Thomas: [Laughs]
Andrew: No, it’s all Zoom obviously, we’re not being idiotically unsafe.
Thomas: No, I know. For next time! [Laughs]
Andrew: But yeah, you can register for the conference, you go over to accessforallconference.com, type in openargs, select the “speakers’ ticket,” even though it’s a secret little backdoor, and that code will put in a $200 ticket then give you $125 dollars off. So, you’ll get the show for basically one quarter of the price of what everybody else is paying. Less than that, actually. So super cool discount, that way you can see my talk and see three days’ worth of various legal talks that you’ll probably enjoy if you like this show. We’re gonna talk a little bit more about it right on the morning of, but I definitely wanted to promote it a little bit. It’s next Tuesday, Wednesday, Thursday, and I’m excited!
Thomas: Alrighty, I think we’re down to our last announcement.
Andrew: [Laughs]
Thomas: Here we go!
Andrew: Yeah, five seconds. This week we had the only concurrence to a denial of certiorari that is going to be its own main deep dive segment next Tuesday, that is Davis v. Ermold, which is the Kim Davis case and the-
Thomas: Oh, right.
Andrew: -truly horrifying dissent penned by Clarence Thomas, joined by Samuel Alito, that really, I think, I will tell you how this forms the structure of our opposition to Amy Coney Barrett, and again, I’m not gonna have you go back and edit it out. I called it a dissent; it is not even a dissent! It is a concurrence in the denial of cert.
Thomas: Yeah.
Andrew: So, it’s Clarence Thomas going, yeah, no, this case is terrible, but by the way I would like to overrule Obergefell v. Hodges.
Thomas: By the way, I hate gay people, basically.
Andrew: Yeah. It really is.
Thomas: Just thought I’d take this opportunity to write about how much I don’t like that.
Andrew: Exactly right. So, we’re gonna break down why it’s even worse than you probably think.
Thomas: Huh.
Andrew: And what all of that has to do with Judge Amy Coney Barrett next Tuesday.
Thomas: And yet we’re still fantastic here. Ah.
Andrew: Yeah!
Thomas: That’s our job. Okay, let’s get to our show.
Yodel Mountain: Flynn Update
[Segment Intro]
Thomas: So, a Flynn update.
Andrew: Yeah! A lot of things going on in the Michael Flynn case. I was going to give you an interim update last Tuesday and then we ran out of time.
Thomas: Eeh.
Andrew: I knew that my birthday, October 7th, was going to be the deadline that Judge Sullivan had set for all final pleadings in this case. That was yesterday, I have now had a chance to read and digest them. It’s pretty crazy.
So first, everyone wants to know this, it looks as though Judge Sullivan is not going to individually either grant or deny the motions to accept the various amicus briefs.
Thomas: Dang.
Andrew: No no no no! It is clear to me that those briefs have been downloaded and read by the parties.
Thomas: They’ve just been – we’ve been left on “read?”
Andrew: No no no no no! We have been read; we just have not been replied to.
Thomas: Sorry, it’s been left “on read,” like when you send someone on a message and it just says “read” then they never respond. Is that?
Andrew: Yes. We have been left on-
Thomas: Gotcha.
Andrew: That is exactly right.
Thomas: Judge Sullivan left us on “read.”
Andrew: Yes, exactly right. But it’s not just the, you know, when you’re like “oh come on! I sent that a day ago!”
Thomas: [Laughs] Yeah.
Andrew: You’ve read it by now.
Thomas: Yeah, Judge Sullivan responded “k” or something. [Laughs]
Andrew: [Laughs] New phone, who dis? Yeah. No, so we’ve done everything that we can do. It has gotten crazier, because of course it has. So first, last week Peter Strzok’s lawyer, Aitan Goelman, who again full disclosure is presently a Zuckerman Spaeder lawyer, was my former partner at Zuckerman Spaeder, and is, if I can say this, kind of my exact opposite in terms of temperament. A very evenhanded, cool under pressure, not at all alarmist, ordinary, exceptionally competent lawyer.
Thomas: Oh, that’s how I think of you, so…
Andrew: [Laughs]
Thomas: That’s you.
Andrew: Not the kind of person who would come on this show and accuse the Trump administration of issuing instructions to the DOJ to doctor various documents in order to support a conspiracy theory. And that is, in fact, exactly what he filed with respect to – in Judge Sullivan’s court. He filed a letter, I will attach it in the show notes, dated September 28th that says “um, Mr. Strzok’s notes have been altered by the government.”
Thomas: Wow.
Andrew: There are handwritten additions on the government’s production in this case that include fictitious dates that do not correspond to former FBI agent Peter Strzok’s actual notes. Let me say, this is truly worrisome. They are designed to – they appear to be designed to correspond to crazy Q-Anon level conspiracy theories. In other words, those dates are months earlier than these actual notes were written down. They have found at least two occasions on which that happened.
And then [Sighs] a couple of days later at Steptoe & Johnson, another world class white shoe law firm, the lawyers on behalf of former FBI Deputy Director Andrew McCabe filed the same letter with similar documents of McCabe’s notes that have erroneous dates affixed to them. Again, these are the same erroneous dates, May 10th, 2017. They are designed to correspond with oddball conspiracy theories. They are added to these documents, and that was brought before the court.
You would think okay, what’s the government gonna say to that? The government has said – and I am not making this up – that these were added on by, it was a post-it that was stuck on? [Laughs] And we photocopied it and the post-it didn’t come off and it just accidentally kind of looks like we left the post-it on there. There’s only a couple of problems with the “post-it note” theory here, and that is each of these documents, multiple documents, have directly next to the supposed “post-it note” a giant redaction box where they have redacted sensitive information.
In other words, even in a very, very small document production, the government’s argument is “oh sorry, we didn’t notice there were these post-it notes on there. We did, however, review and notice that one millimeter next to this post-it note was classified material that needed to be redacted. So, we redacted that classified material but forgot to take off the post-it note.” If that seems implausible, it seems implausible to me too.
Thomas: [Laughs]
Andrew: But that is the explanation. Sorry, sticky notes are bad. If you want additional proof of bad faith, again remember – and I know our listeners know this already, but the posture of this case now is all of the line prosecutors, beginning with Brandon VanGrack who shepherded this case all the way to sentencing that then didn’t happen, have resigned and have been replaced with flacks appointed by the U.S. Department of Justice. Those flacks are now pretending that they are prosecutors when they are, in fact, coordinating with defense counsel, Sidney Powell.
This came out during oral argument, that Sidney Powell was in the White House discussing whether or not she wanted Donald Trump to pardon Michael Flynn at the same time she was in court preparing these arguments with respect to the government’s, now all of a sudden I’m sure totally above board position that no, it just has to move to dismiss this case under Rule 48, “there isn’t any evidence.”
Here’s how they’re manipulating that system. We’ve talked about this on the show, and this gives us an opportunity to give a shout out to our buddy Ben Young and his fantastic Opening Arguments fantasy football team named “Brady Violations.”
Thomas: [Laughs]
Andrew: Which is super clever. But the government has an obligation under Brady v. Maryland to produce potentially exculpatory documents, and produce them to defense counsel. That is an affirmative obligation, when you discover it you’ve got to turn it over whether they’ve asked for it or not. The reason we do this is because usually the government is trying to prosecute your client, not working with defense-
Thomas: Ah.
Andrew: -in order to stop the prosecution of somebody who has confessed multiple times to committing the crime in open court. But, you know, in this crazy world we live in that’s upside down that’s where we are. So, the government is continuing to produce documents that are not Brady material, that it is not required to produce, and it keeps feeding them piecemeal to Sidney Powell in order to fuel her conspiracy theory nonsense. This example, and again, this is linked in the show notes, is truly awful.
Here’s what the government produced to Sidney Powell a couple of days ago and then disclosed they were producing as part of their Brady obligations in Court. It is the note of an associate working in the Department of Justice on Peter Strzok’s team and it is their notes from getting together at a prosecutorial team meeting. Again, super early in the process, January 25th, 2017. Basically, right as Lt. General Flynn has spoken to the Mueller team. They’re then getting together to talk about what this means.
First off, these are internal lawyer notes. You do not have to produce them. Even if I write in my notes “defendant might be innocent (question mark)?”
Thomas: [Laughs] Yeah.
Andrew: I am entitled to my thoughts as an attorney working the case. That is not Brady material. But nevertheless, that’s what they’ve produced. They’ve produced a lawyer’s contemporaneous notes as their working through this case at an incredibly early phase, and they’ve done it in a way there is, without a doubt, a 100% consistent way of understanding this document. This is designed to muddy the waters.
So, this one-page set of notes says the following. It starts off with, other than listing everyone in the room, then it says “tolls – did he talk to admin first,” that’s an open question and that is the lawyer taking the notes of going oh, we need to look at, in charging this person with a crime, did – again, in charging Flynn with a crime – is the statute of limitations tolled because of Michael Flynn’s activities with respect to the presidential administration. They leave that as an open question.
Then it says “Logan Act – (quote) ‘no reasonable prosecutor’” (end quote).
Thomas: [Laughs]
Andrew: Now, again, that is something that was discussed in the meeting. It’s something we’ve said on the show, which is the standard is would a reasonable prosecutor bring a case under the Logan Act? You might say yeah, nobody ever gets prosecuted under the Logan Act and I am 100% certain, because the reason I could be – I say 100% certain a lot – but you can say that in this case because the government did not charge [Laughing] Michael Flynn with a violation of the Logan Act, because they decided yeah, no reasonable prosecutor would charge him under the Logan Act in these circumstances.
Then under that are a couple of small bullets, these are lines that say “- uphill battle; – other transition teams; – first time to use it.”
Thomas: “Total witch hunt! Why are we doing this?”
Andrew: [Laughs] Yeah.
Thomas: So, they’re just trying to feed in a bunch of crap that they don’t need to, to make it look like he shouldn’t be prosecuted or sentenced?
Andrew: Yeah. It is clear that what happened was there was an internal debate that said “maybe we should charge this guy under the Logan Act,” and the prosecutors were like [Sighs] you know what? We could. Put a pin in that. But if we charge him with the Logan Act you need to know that’s gonna be an uphill battle. We would get into, they would muddy the water by talking about what other presidential transition teams have done, because the Logan Act prevents you from having contact with a foreign government on behalf of the U.S. government when you were not authorized to do so, and when you are on the presidential transition team and you’re talking to Sergey Kislyak, the Russian ambassador, in December, all things that Michael Flynn did, you’re not speaking on behalf of the U.S. government, you are speaking on behalf of the President-elect who does not get to be President until January.
So, there is a fair argument here that says yeah, if we were to charge him under the Logan Act then they would muddy up the waters by talking about what other presidential transition teams have done and they would argue look, there was no intent, they thought they were gonna be the President, it was December. Clearly all of these arguments got kicked around.
Thomas: Mm-hmm.
Andrew: This is what lawyers do! You sit down and again, I know this from civil cases when you try and figure out what you’re going to sue somebody over, but the process I assume is the same – I know is the same from talking to my prosecutor friends. You know, if we’re gonna sue somebody, I call up Morgan and I say “alright, let’s talk about all the different things that we might sue this person for.” Morgan might say, well, let’s sue them for tortious interference, and I would say well… we’re not gonna sue for tortious interference because there’s no specific contract, third party contract, that got violated. So, Morgan’s notes would look like this. It would say “tortious interference (question mark)?” and there’d be a dash that says “no third-party contract.”
Thomas: “A-hole boss shuts down my idea again.”
Andrew: [Laughs] I am 100% certain her notes say that.
Thomas: “Need to find new job.” [Laughs]
Andrew: [Laughing] Those two things are in all capital letters, I’m confident on. But no, if we turn around and then later decide to include it, suppose she wins the argument, that certainly happens, it would not be relevant in any way whatsoever to come back and say oh, well, you know, at an early stage you kicked around the idea of suing for tortious interference and then Morgan says right here you decided not to! I’d be like no no no no, that just means I won that first argument, but she won the second one, so who care? I could go through, but you get the idea.
Now [Laughs] characterized by a pleading from Sidney Powell as (quote) “today the government produced a single page of FBI notes from January 25th, 2020 taken by a lawyer in the FBI’s Office of General Counsel. In that meeting it was clear, the day after the FBI’s interview of General Flynn, that (quote) ‘no reasonable prosecutor’ would bring a Logan Act charge regarding the December 29, 2016 phone call with Ambassador Kislyak, which was similar to communications by (quote) ‘other transition teams’ (end of quote).” That’s not what that document says. We just went through it first, and this is the prosecution and the defense colluding to muddy up the waters.
[Sighs] So you have all that with respect to Brady material, and then you have two more things that are delightful that I’m gonna pass over very, very quickly as the show is moving along at a brisk pace. You have amicus former Judge Gleason’s supplemental brief which is a page and a half that says “yes, this court can take judicial notice of what’s in a Trump tweet.” That should be completely obvious, but Sidney Powell argued at oral argument “oh no, you can’t, because Judge Gleason’s brief refers to Donald Trump tweets, well that’s not part of the record.” So, the court said, okay, you wanna brief me on that? And Judge Gleason briefed them on that.
As it turns out, of course the court can consider Trump’s tweets. Federal Rule of Evidence 201(b)(2) says “any third-party source that (quote) ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned’ (end of quote) can be considered by the court upon which the court can take judicial notice.” Let me say, you haven’t asked this question but I think some of our listeners might.
Thomas: You mean when I have been able to ask a question? [Laughs]
Andrew: [Laughs] What it means “to take judicial notice” of something is to admit a fact into evidence that does not come from witness or documentary testimony. So, you’ll sometimes see this in movies, TV shows, Matlock, that sort of thing.
Thomas: Well we’ve seen the example of like just a definition or bringing in – is that part of it?
Andrew: Yup.
Thomas: In like Miracle on 34th Street where he brings in the postal code, is it that kind of thing?
Andrew: So, citations to legal authority are not evidence.
Thomas: Okay.
Andrew: What would be evidence is something like suppose you have video camera, surveillance camera footage and as the camera is running in real time you see the picture getting darker and darker, and then instead of putting an expert on to say oh yeah, this video camera is facing, what, East? And the sun, this was taken, you can see the timestamp at 5:00, so this is taken as the sun is setting and that’s why the light source is diminishing and that’s why it’s getting darker and darker. So, the other side says this video could be altered, it’s getting darker and darker and we don’t know why. The opposing counsel might say “Your Honor, we move that the court take judicial notice, the timestamp on this videotape is 5:13 pm and the sun set in Los Angeles at 5:14 pm on whatever day.” For 5:14 pm it would have to be-
Thomas: Winter.
Andrew: -in December, right?
Thomas: Yeah.
Andrew: You know, you would then say, it’s kind of a way of saying I didn’t anticipate that they would put an obvious fact in dispute in this case, I don’t have-
Thomas: So, it’s trying to sidestep disputes over something stupid, maybe?
Andrew: Over something stupid, that’s exactly right. [Laughs] So that’s exactly what this brief says. Yeah, yeah, yeah, I quoted from Trump in his tweets. I didn’t expect Sidney Powell, whom Trump retweets all the time, to come into court and argue you can’t use that. Yes, you can use that.
[Commercial]
Thomas: I just was gonna ask just in case, it wouldn’t matter if you could say well you don’t know specifically who tweeted that? If it was just somebody using Trump’s account or something, that doesn’t matter?
Andrew: Well and that’s why the standard that he cites is the 201(b)(2). Yeah, if Twitter did not have the little blue checkmark-
Thomas: No, but other people tweet for Trump.
Andrew: That’s right, but you can take judicial notice of the fact that it was tweeted out by the President’s official twitter account.
Thomas: Okay.
Andrew: So yes, that’s right. Then, by the way, there are a bunch of cases that talk about the case we’ve discussed on the air, the 2nd Circuit Knight First Amendment Institute v. Trump, which says that Trump has acted in an official capacity when he tweets, and that the Presidential Records Act would apply to Trump’s tweets. Your point is a good one, it would not be something upon which you could take judicial admission in a personal capacity.
Thomas: Okay.
Andrew: If we looked right now and you know, who knows? It could happen and @realdonaldtrump says “just strangled a man with my bare hands,” it would be a valid defense in the charge of manslaughter for Donald Trump to say “no, that could have been somebody else with access to my Twitter account. So yes, you could make that argument, but you would not be able to dispute the fact that the Trump Twitter account said “just strangled a man with my bare hands.” Make sense?
Thomas: [Laughing] Yeah.
Andrew: Look, tell me that that is any less plausible than anything else that’s happened in 2020?
Thomas: [Laughs] That’s why I’m chuckling, yeah, it does make sense. I’m waiting for that when we have to cover that.
Andrew: Yeah, we would. I would love to be able to discuss all of this. [Laughs] We can’t, and that makes me super sad, but Sidney Powell has once again filed her motion, it is 40 pages long, to disqualify Judge Sullivan on the grounds that he’s a meanie and he is biased and he’s partial and he shouldn’t be a part of it, despite the fact that they raised this argument multiple times and have always lost on this argument. Again, let me be clear about this. This argument was raised in the first mandamus petition that went before Judges Rao and Henderson in which they won. So, the first panel opinion of the D.C. Circuit said, that was that crazy Neomi Rao opinion that we said would be reviewed and reversed en banc and it was.
In that opinion they argued oh and by the way you also have to order Judge Sullivan to recuse himself and the panel said no… the kinds of things you’re arguing do not rise to the level of requiring a judge to recuse himself from the case. Then that opinion was reversed by the entire D.C. Circuit and they made the argument again! “You need to order Judge Sullivan to recuse himself,” and they added a new argument which you may recall they had a chance of winning on, that said because Judge Sullivan is the party that has sought en banc review he has now become a party to this action and if you’re a party that means you get recused under the recusal statute, 28 U.S.C. § 455(b)(5)(1).
The full en banc D.C. Circuit rejected that argument, too, and they said there is no basis for disqualifying the district judge under that statute because the district judge has not become a party to the proceeding below. Proceeding indicates pretrial, trial, appellate review, or other stages of litigation, but not filing a separate petition for a writ of mandamus. Then they say “nor does participating in a mandamus proceeding create an appearance of partiality warranting recusal from the separate underlying action. If that were the case then every mandamus petitioner seeking a district judge’s recusal would, [Laughing] if responded to by the district judge, obtain the sought-after recusal.”
Thomas: Right.
Andrew: “A result that would not only swallow up the statute but would run up against case law to the contrary.” And in fact you’re saying right, because we talked about this result when we described the D.C. Circuit’s opinion. So maybe it’s slightly surprising(?) that they’ve raised the exact same argument again on the exact same grounds despite the fact that it has been resolved with finality that it is law of the case by an en banc panel of the D.C. Circuit. I will tell you this, I tweeted this out, I don’t think he will do this because [Laughs] Judge Sullivan is not the hysterical lunatic that the right wing wants to paint him as. He is a very sober and respected and serious judge.
But he has inherent sanctions powers. He could sanction Sidney Powell for filing this motion. There are two specific grounds. There is Rule 11, which requires that when a lawyer signs a pleading that they either know that the law they cite is correct or they have a good faith basis for changing the law. Then there is the inherent powers of the court to award sanctions whenever one party is acting contrary to the interests of justice. He could do that, he could absolutely 100% order Sidney Powell taken away in handcuffs. I would love for him to do that? Judge Sullivan is not gonna do that. [Laughs]
Thomas: Yeah, that’d be nice. Why not? [Laughs]
Andrew: Because we don’t play hardball the way their side does. And I will tell you, I’m not gonna go through it, it is just nonsense. This is classic Sidney Powell litigation. The (quote) “fact section,” right, the scurrilous allegations cobbled together from Q-Anon and her fevered brain are 23 pages and the arguments section is less than 8. The remainder of the brief are the, you know, Table of Contents and Authorities and stuff like that. Literally more than three quarters of this brief is just Sidney Powell saying how mean Judge Sullivan is, and these are –
I wanna also add, this is just not how you plead a case. There are five separate arguments that say these are five independent grounds for relief and those five together do not add up to eight and a half pages. [Laughs] So argument number one, “Judge Sullivan’s disqualifying conduct escalated and compounded the appearance of bias from 2018 to 2020” is less than a page long. Argument number two, “A court that is taking its marching orders from extrajudicial sources undermines public confidence in the judicial system” is less than a page long. The argument that “appointing Judge Gleason is evidence of antagonism and bias” which, again, has been rejected by every court that’s ever heard this argument, is three pages long.
Thomas: Sorry, when does this end? Do they get to just write stupid thing after stupid thing for the rest of time?
Andrew: This is – consideration of this is the end. Judge Sullivan set October 7th as the deadline for “hey, if you have anything else you wanna bring before this court while I then contemplate the pending Rule 48(a) motion, file them now.” Now was October 7.
Thomas: Oh.
Andrew: They’ve been filed, it’s done, it’s over. All of these things will be addressed by the Court and if you’re asking does this mean now [Laughs] that by filing an extra separate 32-page motion for the judge to recuse himself, has Sidney Powell basically guaranteed that the court will not rule on judge Flynn and the 48(a) motioning? Certainly until after the election but maybe not until after the next administration takes place? Yes, yes. They have now done that. It is possible, I mean look, I think what’s gonna happen is when Trump loses, and Trump’ll lose because you all will go out and vote for Joe Biden, when Trump loses, I think he may spend the entirety of the lame duck session doing nothing but issuing pardons for months.
Thomas: Yeah.
Andrew: We may have to – and again, there are, it is valid, I have researched this, we may have to do a lame duck deep dive on this. It is possible, contemplated, and I would argue possibly necessary, to impeach a President during the lame duck period. So, if he is committing high crimes and misdemeanors by abusing the pardon power, which falls within the category of high crimes and misdemeanors, we might need to impeach him again. I have not begun to think about what Trump will do in the lame duck session.
Thomas: Yeah, imagining what the incentives would be for Republicans, I’m actually not sure. Like after the election, assuming Trump has lost, lame duck kind of thing, I wonder what the Republican Senate –
Andrew: Yeah.
Thomas: Yeah, I still can’t imagine them doing anything. I dunno, what do you think they would do?
Andrew: If they get crushed–
Thomas: Yeah.
Andrew: And again, I wanted to talk about this at the start of the show.
Thomas: I could imagine them pretending like “oh, this is too, we have our limits!” Trying to regain their moral whatever by doing a last-minute pointless effort to impeach Trump.
Andrew: Let’s do a little sidebar on that. We all know that there was systematic errors in the polling in 2016, particularly in the old Midwest, Mid-Atlantic, Pennsylvania, Michigan, Wisconsin, Minnesota. So, the numbers look good for Biden right now? But do not ease up. I think all of our listeners know that, and I would add the worst-case scenario [Laughing] of oh, well the numbers look great so do I really need to go out for Biden anyway? The worst-case scenario of that is actually the best-case scenario, which is you are able – I would love nothing more than Joe Biden and Kamala Harris on November the 4th to be able to look out and say yeah, the United States, turns out we were better than this. It turns out we conclusively came together as a country and said we’re rejecting Trumpism. 60/40. It’s not gonna be 60/40, but could you imagine how great that would be? If that were the case then Republicans will be scrambling like rats off a sinking ship to say “oh, well I was” [Laughs] I was in for the tax cuts and Judge Corey, but I was never a Trumper, are you kidding me?
Thomas: Yeah, maybe. I think you’d have to look at a breakdown of which seats would be like, you know, which Republicans would have won their election versus if they lost and they’re sitting there as Senators in the lame duck having lost? What’s their motivation, you know? I dunno, could be.
Andrew: Yup, and look, in my view that is the ability to flip Republican seats in deep red areas. Jamie Harrison is tied, statistically, with Lindsey Graham right now. If Lindsey Graham loses-
Thomas: Ah! [Chef’s Kiss]
Andrew: Obviously we would be pleased, but it would be a clear, it’s what we talked about with Yodel Mountain. You would say “you guys made the calculation that you were more vulnerable in a primary than in a general election and you lost.” That would be a really, really good argument going forward. Anyway, I’ll go back on the main road off of this rabbit trail.
Thomas: Well, and another reason to never ease up is that they’re going to try to cheat and prevent people from voting and everything. Polling’s one thing but they’re trying to steal the election so don’t let them do that, please.
Andrew: Exactly right. Exactly right. So that’s our update in the Flynn case, and Judge Sullivan has no incentive to rule quickly. We’ll see what he does. Obviously, we’re continuing to follow this. Again, remember, at the end of the day if Judge Sullivan does not grant the motion to dismiss, he could still order zero months in prison for Michael Flynn.
Thomas: Yeah.
Andrew: He could still order probation. This is not about “lock him up,” this is about the rule of law. That continues to be-
Thomas: And if we went by the rule of law, we would lock him up, but yeah. Sure.
Andrew: [Laughs] Well, fair and fair.
Thomas: [Laughs]
Andrew Was Right – Trump Tax
[Segment Intro]
Thomas: Okay Andrew, a little bit of time for an Andrew Was Right. I saw the Trump tax news and my recollection was that you predicted this correctly. What’s going on with Mazars?
Andrew: Yeah! So, this is – remember my prediction when the Supreme Court handed down the results in Trump v. Mazars and Trump v. Vance, all the commentators on MSNBC were uniform of okay, well, you know, they said that but we’re not gonna get Trump’s taxes before the election and I said don’t be so sure about that. This is “don’t be so sure about that.”
What happened? In particular I said with respect to the 2nd Circuit with respect to the State of New York and Cyrus Vance’s investigation into Donald Trump’s financial dealings that it is entirely possible that those grand jury subpoenas might come in before the election. I sketched out a timetable even with the remands and everything else, and that timetable has unfolded pretty much exactly the way I told you it would.
Here’s where we are: The Supreme Court in Trump v. Vance held two things. First, they said we do look at subpoenas in light of separation of powers issues, and we are mindful of things that would intrude upon the unique character of a sitting President of the United States. But that being said, we’re controlled by the Clinton v. Jones precedent in which the President of the United States had to sit for a civil deposition in the Paula Jones case while he was the sitting President of the United States and the Supreme Court was like yeah, we get it, you’re the President, you’re busy, but you know what? You’re not busy all the time, you can sit for a deposition if it is in the interest of justice.
That argument is obviously considerably stronger when you’re not talking about restoring justice to a private litigant but committing crimes.
Thomas: Oh, I thought you were gonna say it was stronger when you have a President who does nothing but watch TV all day anyway.
Andrew: [Laughs]
Thomas: So, it’d be easier to be like “what are you even doing, dude?” Golfing, TV?
Andrew: [Laughs] Very, very true. So, the Supreme Court said you can raise those kinds of arguments that are particularized to the presidency. Let me give you a real obvious example. If – typically in civil litigation when you schedule a deposition the parties will negotiate, but if the other side is being ridiculous you can just notice up a deposition and give them the statutory appropriate period of time, it’s usually 30 days, and then say alright, we tried to negotiate this out but you were being obstructionist, your guy’s gonna appear on October 13th and that’s just the way it is.
You could imagine the presidency, if they’re stonewalling you, you just serve a deposition notice and you’re like that’s it, fine, bring Donny over here on October 13th. It would be a real good argument on a motion to quash to say well, October 12th through 14th is the G7 summit and the President will be in Stockholm.
Thomas: Yeah.
Andrew: That’s a fair argument. The court would say that doesn’t get you out of having to sit for the depo, it just means you gotta take into account the fact that he’s the President. The golf playing, Fox News watching, tweeting, President as you point out. Spoiler, Donald Trump raises zero of these arguments against the grand jury subpoena.
The second category of arguments they said he’s free to raise are the arguments that are available to any ordinary litigant in opposing compliance with a subpoena. Those arguments are breadth and bad faith. You could imagine each of those providing a plausible means of objecting to a third party to comply with a subpoena, and let me – I gave this example on Mueller She Wrote but I’ll repeat it here because I conceptualize this in terms of civil litigation so it’s really straightforward to me.
Let me give you this case that comes up, I’ve actually had come up a couple different times for a couple different clients. I represent a medical practice, my client is Dr. A. His patient is patient B. Dr. A treats patient B in 2005. In 2019 patient B is in an auto accident and patient B sues the driver of the car who is represented by an insurance company that then takes over the litigation, and what the insurance company does is they send out tons of subpoenas, to every doctor patient B has ever had that says, in some cases, we want every record of everything that ever relates to patient B.
Now, you might imagine, my client gets this and is like oh man, I treated patient B 15 years ago, we’ve changed our computer system twice since then. I don’t have any of these records anymore. So, in that situation if the insurance company is being unreasonable, and I have had to litigate this several times so that tells you that, I would draft a motion to quash. I would go into court and I would say yes, there is potentially relevant medical information here, but the relevance of that information is more than overwhelmed by the overbreadth of the subpoena inquiry. The burden is just way too high and the benefit is way too small. That’s kind of the baseline for how you raise these objections.
It will not surprise you that Donald Trump’s objections did not remotely fall into that kind of fact pattern. Instead, Trump made an argument [Laughing] so bizarre that the 2nd Circuit had a hard time parsing it out. Because unlike the “all records back fifteen years ago to my pediatrist” example this was a grand jury subpoena to the Trump organization and then also to Mazars, seeking documents from 2015 to 2018 relating to payments related to Michael Cohen’s work, and then subsequent requests to Mazars directly for tax returns, schedules, financial statements, that again went back to 2011 and then there was one that said “regardless of time period any and all engagement agreements or contracts related to the preparation, compilation, review, or auditing of those tax returns and financial statements.”
In other words, the investigation seemed to be about hiding financial documents through Michael Cohen, the Stormy Daniels stuff and others, then they went to Mazars and said we want a picture of the financial operations of the Trump organization and Donald Trump personally.
Donald Trump argued no no no no, you can’t, that’s overly broad. You can’t request that kind of information from a third party when all you really care about is Michael Cohen. The court was like – again, I wanna emphasize, this is a near direct quote – “what the hell are you talking about?”
Thomas: [Laughs]
Andrew: [Laughs] The court said, number one, grand juries are secret. You don’t get to be there; you have no idea what they’re interested in. They are entitled to wide latitude in the stuff that they want, and by the way case law has been clear for as long as we can remember that their subpoenas enjoy a presumption of validity in terms of the subject matter.
They cite to [Laughs] a delightful case called R. Enterprises and United States v. R. Enterprises, a Supreme Court case, 498 U.S. 292 from 1991 involving pornography.
Thomas: Hmm.
Andrew: You might vaguely recall-
Thomas: I might be familiar with pornography. Oh no, that’s not …
Andrew: [Laughs] I would assume! The Reagan administration was obsessed with instructing the Department of Justice to prosecute pornography cases and they did and it was ridiculous. What would happen would be you would entrap various pornography stores to mail you videotapes or magazines because once they-
Thomas: God what a waste of time and resources!
Andrew: Yeah. 100%. So that’s what happened in this R. Enterprises case. So, R. Enterprises was – and there were a couple of others – was a pornography business run by a guy named Martin Rothstein who not only – who distributed pornographic materials. What they did was they got him to ship these pornographic materials – and again, this is 1980s pornography. I am sure this would not rise to the level of a tab on Pornhub today.
Thomas: [Laughs]
Andrew: It’s 1980s, believe me. I grew up with the scrambled in my household. You know, porn was tame back then. What they did was they got R. Enterprises to ship videotapes and magazines across state lines from New York into Virginia where the sting was set up. Then the Department of Justice went back, they empaneled a grand jury, and the grand jury issued subpoenas to a New York distributor, arguably not relevant to the interstate crime, and said “look, we want the business records as to R. Enterprises in connection with this crime.”
Again, short circuiting all of that, the Supreme Court was like yeah, of course you can do that. That’s basically what the case says. It says grand juries are entitled to a presumption from looking at the evidence, and in fact Section III(B) of the opinion actually provides for the mechanism that was raised in that case, of which I have some sympathy, which says look, if the grand jury is secret how am I going to make an affirmative showing that this is unreasonable and unduly burdensome? Because I don’t know what they’re looking for. And the Supreme Court says yeah, actually.
“It seems unlikely, of course, that a challenging party who does not know the general subject matter of the grand jury’s investigation, no matter how valid that party’s claim, will be able to make the necessary showing that compliance would be unreasonable.” So, they took that argument under advisement and they said the process in that is to ask the court for an in camera inspection. Say okay, grand jury, those materials are confidential. We want the judge, at least, to look at what the grand jury is interested in in order to figure out whether this subpoena fits into the 15-year-old subpoena to the pediatrist category or whether it doesn’t, whether it’s just an ordinary garden variety subpoena.
The point on all of that is business records don’t rise to that level. Business records are the kind of thing that grand juries want all the time in financial crimes and it’s ridiculous to argue in open court that requests for 9 years’ worth of business records and tax returns are unduly burdensome and overly broad.
Thomas: So, we’re way out of time here. My only question was gonna be does the New York Times scoop impact this sort of court thingies at all? [Laughs]
Andrew: It is a fantastic question. I searched the opinion for that myself and no, not at all.
Thomas: Hmm.
Andrew: If you think about it-
Thomas: Yeah, it’s ‘cuz we still didn’t get to see it, I guess, right?
Andrew: And more so, that argument would potentially undercut the irreparable harm claim.
Thomas: Hmm.
Andrew: But this is on the merits. This is not-
Thomas: Oh, okay.
Andrew: This is just dismissing out the lawsuit in its entirety, saying no, you don’t have any ground to stand on here. But put a pin in that, I’m really, really glad you raise that because the question is okay, this is from the 2nd Circuit, what happens now? Can’t the President just turn around and petition the Supreme Court and run out the clock?
Thomas: Yeah.
Andrew: The answer to that is the briefing schedule agreed to between Cy Vance and the President’s attorneys prior to their filing of this appeal to the 2nd Circuit. You might recall there was a little bit of a flap in some of the leftie circles that continue to cast, in my view, wholly unwarranted aspersions at Cy Vance. When he agreed to an administrative state, an interim stay, of enforcing the subpoena while the President appealed to the 2nd Circuit, they said “look, the fix is gonna be in and Cy Vance is a deep cover blah blah blah.”
Thomas: Mm-hm.
Andrew: And I said no, that’s not what’s going on. Again, this is another “Andrew Was Right.” As part of the agreement that they would not seek enforcement of the subpoena from Mazars during the time it took the President to brief his appeal to the 2nd Circuit, the President also agreed that if he lost in the 2nd Circuit, he would agree to an expedited briefing schedule to the Supreme Court.
Thomas: Huh.
Andrew: I’ve linked that letter in the show notes, it’s now up on our – I had to download it from the court’s website, but is now up on the Openargs page. That agreement requires the President to file his cert petition on or before Monday, October 12th. Within five days of the ruling coming out, even though he would ordinarily have 150 days under the Supreme Court’s new COVID rules. It means that the opposition by Cy Vance hast to be filed 5 days after that, Saturday, October the 17th. And yes, it includes Saturdays. And it means that their reply brief is due two days after that, Monday, October the 19th.
One week from this coming Monday is when all briefing must be completed to the Supreme Court seeking any kind of future relief on this. There are two things that must happen here: Number one, the Supreme Court has to agree to grant cert and number two, the Supreme Court would have to stay the effect of the mandate of the 2nd dismissing out this lawsuit. If they do not do those two things then there is no longer any legal barrier and Mazars will turn around and turn over those materials to the District Attorney of New York as soon as it’s clear, which could be October 20th.
Again, same thing I said before. I’m not saying we definitely will get Trump’s tax records before the election. I am saying people saying we definitely won’t are wrong.
Thomas: Alright.
Andrew: This is consistent with that.
[Patron Shout Outs]
T3BE Question
Thomas: Well, way outta time but we will still try to sneak in a T3BE, here we go!
Andrew: [Laughs] Alright Thomas: A plaintiff, who had been injured in an automobile collision, sued for damages. The defendant denied negligence and denied that the plaintiff’s injuries were severe. At trial, the plaintiff has offered in evidence a color photograph of himself made from a videotape taken by a television news crew at the scene of the collision. The plaintiff has demonstrated that the videotape has since been routinely reused by the television station and that the footage of the plaintiff was erased.
Thomas: Oh!
Andrew: The photograph shows the plaintiff moments after the collusion, with his bloodied head protruding at a grotesque angle through the broken windshield of his car.
Thomas: Wow.
Andrew: Should the photograph be admitted over the defendant’s objection? Love this question!
Thomas: Huh.
Andrew: Standard, classic evidence question. A) No, because the plaintiff has failed to establish that a duplicate could not be found. B) No, because the plaintiff has failed to produce the original videotape or a duplicate. C) Yes, because it tends to prove a controverted fact. Or D) Yes, because a photograph that establishes a disputed fact cannot be excluded as prejudicial.
Thomas: Wow! Okay. [Laughs] Um. This is a weird one. So, it’s a photograph from a videotape, kind of a dated question, I guess.
Andrew: [Laughs]
Thomas: Hopefully the law has stayed the same. The only – I guess I don’t entirely know what the issue is? I guess the problem is that they can’t back the photograph up with video? But … if this were just a photo why would that be any different? I’m not really sure. So, it’s a color photograph made from a videotape. Like if somebody was just there taking a picture it would be the same, wouldn’t it? I don’t really see why it’s different, and it feels like a picture that someone took would easily be evidence. Yeah, I don’t really – I’m not sure what the issue is here. So, should the photograph be admitted over the defendant’s objection?
The no answers are no because the plaintiff has failed to establish that a duplicate could not be found. I don’t know what that even means. So, the answer is you wouldn’t admit the photograph because the plaintiff has failed to establish that a duplicate could not be found. What? You need to find a duplicate? If that’s it, maybe, I dunno, it doesn’t make any sense to me.
B, no because the plaintiff has failed to produce the original videotape or a duplicate. That’s a more plausible answer. If for some reason you need to actually produce the original then maybe B? But I think I’m really leaning toward a yes answer, I guess.
C, yes because it tends to prove a controverted fact. Okay. D, yes because a photograph that establishes a disputed fact cannot be excluded as prejudicial. So, I don’t know where prejudicial would come into this at all. This is a weird question. I think I’m going to narrow it to B and C because I think B is maybe a plausible “no” answer? But I think the answer is just C, yes because it tends to prove a controverted fact. It’s kinda going with the obvious answer but in some of these evidence questions or whatever, hearsay kinda things, usually the correct answer is just yeah, ‘cuz it’s evidence. [Laughing] You know? Unless it’s not allowed for some reason but I don’t really know why this wouldn’t be allowed and I’m not seeing a satisfying answer beyond B that would be like well you can’t produce the original, but if it’s a photograph… I guess I don’t know how they’re counting a photograph made from a videotape.
Andrew: [Laughs]
Thomas: Is it literally like you got a frame of the tape? How did you make a photograph of the – I don’t know. Well, I don’t know, it could be B but I’m going with C. I think this is fine. I think this is like taking a picture, essentially.
Andrew: Alright, well that foray into ancient technology and also legal questioning, if you would like 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: And that’s our show, thanks so much for listening. We will see you on Tuesday for even more law stuff. [Laughs] As always!
Andrew: [Laughs] Always a safe bet.
[Show Outro]