Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 437. I am Thomas, that is Andrew. How are you doing?
Andrew: I am fantastic, Thomas, how are you?
Thomas: Well … I don’t know.
Thomas: This is a weird one to record ahead of time.
Andrew: [Laughing] That’s right.
Thomas: Look, this is what we do. The cat’s out of the bag, you all know the magic behind the show, we record on Thursdays, we record the rapid response and then we record the Tuesday episode. This one is a weird one to record early because we don’t know what’s gonna happen between Thursday and when you’re hearing this but this stuff, the stuff we’re talking about, still needs to be covered and I assume if anything absolutely crazy has happened we’ll do an emergency episode. There you go, we’ve got a lot to talk about still and it’s time to play some hardball with … not Chris Matthews.
Thomas: Hardball with Joe Biden, or us.
Breakin’ Down the Law: Counting Votes in North Carolina
Thomas: Alright Andrew. First, the potential good news-
Thomas: As much as we covered last time as we left it, it’s looking like 48-50 in the Senate but with the two Georgia races outstanding. But tell us why there’s still reason for optimism.
Andrew: Yeah, look this is, like you said, the main of this episode is gonna be it’s time to play some hardball. That is, what does Joe Biden do if he has 49 Senate seats? 48?
Andrew: What if Mitch McConnell remains majority leader? That’s gonna be really, really bad in ways that you haven’t thought about and we’re gonna talk about how to play hardball against Mitch McConnell. I’m gonna start circulating those ideas right away. Look, that’s a real possibility. We’re counting on 49.997% of the vote [Laughs] sending Purdue to a runoff, that’s an error of like ten guys. We wanna make sure we cover that, and people will appreciate, I think, getting that out there. I wanna start with how can we wind up with 51 votes?
Let me first give you, kind of, what seems like a mathematical impossibility. That mathematical impossibility is, right now, Tom Tillis, the Republican leads Cal Cunningham, the Democratic candidate for Senate in North Carolina, by 97,000 votes and as far as we can tell there are about 120,000 votes outstanding in North Carolina. We understand, okay, North Carolina hasn’t been called on the Presidential level because the margin is smaller and, you know, of those 120,000 they’re gonna be pretty heavily democratic, but you’re probably looking at that going “it’s not gonna be 110,000 to 10.”
Andrew: Maybe 92% Democratic. Andrew, I know you’re Optimist Prime but you’re kidding yourself. The answer is I’m not kidding myself.
Andrew: Here’s why. It has to do with what happened at the Supreme Court last week. In fact, two weeks ago now by the time you’re hearing this. It involved a case that we gave a one sentence summary to and now [Laughs] you’re gonna get five or ten minutes on!
Andrew: It’s a case called Wise v. Circosta, and it went up to the entire en banc 4th Circuit and the 4th Circuit, 12-3 – So, 4th Circuit is a left leaning circuit but that is bipartisan across the 4th Circuit, ruled 12-3 that in North Carolina all ballots postmarked by election day can be counted, can be received, up to nine days later.
Andrew: That is up until November the 12th. That is this coming Thursday, so two days later than you’re listening to this. There will be no final results in North Carolina until Thursday the 12th. Now that also then went up to the Supreme Court, because Republican party challenging everything-
Thomas: That was gonna be my question.
Andrew: Yeah. Supreme Court already denied relief.
Andrew: 5-3, so 5 to 3, Kavanaugh voted to deny the request for relief and Amy Coney Barrett did not take place in any of the decisions. The reason we know that it was 5-3 is that there was no written opinion issued, but there was a little note on the minute order that said “Justices Alito, Thomas, and Gorsuch would have voted to grant relief in this case.”
Thomas: Because of course they would.
Andrew: [Laughs] Literally, it might as well just say “because of course they would.”
Andrew: That’s been decided. That is the procedure in North Carolina, cannot be challenged, there is no lawsuit trying to challenge it. North Carolina’s gonna count until this Thursday. You might be saying okay, but how? Right, I get it, a couple ballots are gonna trickle in, is it gonna be enough to cover a 97,000-vote lead? Probably not?
Andrew: But that gets us to the confluence of the second lawsuit that potentially makes this possible and that has to do with our friend Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia; the same court that is currently handling the Michael Flynn case, the same court before which our Opening Arguments, Opening Arguments branded, amicus brief, is pending before Judge Sullivan. He has read it! Okay. I’m a little giddy about Judge Sullivan.
In light of the shenanigans going on and being reported in the popular press about the post office – we covered that in Opening Arguments episode 415 – you remember all of those news reports, right? That DeJoy was ordering the end of overtime, changes to scheduling, destroying ballot sorting machines, all sorts of stuff like that. A bunch of different citizens activist groups led by a group called Vote Forward, but there are others that are involved as well, some individual plaintiffs, Voces Unidas de las Montañas, I apologize for my high school Spanish accent there. A bunch of citizen groups at the end of August filed a lawsuit in the U.S. District Court for the District of Columbia, assigned to Judge Sullivan, seeking declaratory and injunctive relief against DeJoy and the post office requiring them not to slow down ballots.
[Laughing] That suit’s still going, Thomas!
Andrew: Not only is that suit still going, that suit – this kind of got lost. I think we talked about it for like a minute or two? It got lost on election night because of course it did, but this was an example of where, on election day itself, the plaintiffs brought before Judge Sullivan evidence that the post office was sitting on ballots. Sitting, specifically, on two different kinds of ballots. I want you to know the names of this because this may be front and center by the time you’re hearing this episode.
Thomas: Will this be the new hanging chads and butterfly ballots of this era?
Andrew: [Laughs] It could be. They were sitting on – one category were outbound ballots. That is, when you ordered, when you instructed the state elections office to send you a mail in ballot and they were sending it to you, whether the post office, once they received that ballot, whether they sent it out to you. Those outbound ballot scores … uhh? Are not great for a couple of days before the election. They’re in the 90s for the last week of October, but then on October 31st it drops down to 80%.
Andrew: You can imagine, that is hey, a week and a half before the election I say I’d like a mail in ballot, the election site says yeah, great, we’re gonna send you a ballot, and then the post office is like “yeeeah, but we’re not gonna deliver that to you.” It drops from 80% to 77%-
Andrew: -on the Monday before the election, and to 5% on election day itself.
Andrew: Now again, why does that matter? Because as we went through on Tuesday’s episode – on that election day episode – in many states when you requested a mail in ballot and you did not vote by mail you could still vote in person, but in many many states whether you would be allowed to vote regular and be counted that night or whether you would be issued a preliminary ballot would hinge upon whether you could bring that uncast mail ballot with you.
Andrew: So not getting the ballot meant that you got put into the provisional buckets and provisional buckets get counted last. That’s all bad on outgoing ballots, but what you really wanna look at, and what Judge Sullivan really, really looked at was what we call “incoming ballots.” What they mean by incoming ballots are “I have filled out my mail in ballot, I have dropped it in the mail, it has been received at the post office but not stamped and not processed.” It has what they label it as no outgoing destination.
Andrew: Those ballots – here are the numbers. Now mind you, some of these may be sequential and overcounted. There were hundreds of thousands of ballots that were sat on by the post office in the days leading up to the election.
Thomas: Is this like we do the election, we discover that Louis DeJoy is like Smaug in the Hobbit?
Thomas: There’s just ballots and ballots that he’s hoarding?
Andrew: We know. These are from court pleadings. Two days before the election there were 322,000 incoming ballots across the country that were not postmarked, that were not delivered to election officials, and I posted this up on our social media account, if you look at the distribution of where ballots were not delivered? They were overwhelmingly not delivered in the swing states.
Andrew: In other words, when you look for the states that had more than 10,000 ballots not delivered, that were sent on time but just kinda mysteriously dropped on the floor and not processed, it is the I-5 corridor in Florida where Joe Biden drastically underperformed his poll numbers. That is not Miami but the corridor of Orlando and Tampa Bay. A big blue stripe, kinda dark blue stripe down the middle of Florida. It was in New Mexico and Arizona and parts of Southern California, which I think just has to do with what areas the post office covers.
Then between 2500 and 10,000 undelivered ballots in the West Coast, in Ohio, in Pennsylvania, in Maryland, and in North Carolina. With a gerrymandered little tail that goes down into Northern Georgia – yes, Atlanta.
Put all of that together. We saw, for example, in Wisconsin, that Wisconsin just had a hard deadline. If the ballot didn’t arrive, even if it was postmarked on time, even if it was sent in good faith, even if you sent it in a week early. If they delayed your ballot in Wisconsin and it didn’t get there by election day it didn’t count.
Andrew: It got thrown out. If that makes you mad and you’re a Wisconsin voter then make sure you vote against Republicans ‘cuz that’s who did this to you. Other states, Pennsylvania, has the three-day grace period but the Supreme Court ordered those segregated so they could steal them if they wanted to. North Carolina has a nine-day grace period that’s been upheld. I do not know – here’s the bottom line, I am not telling you that Cal Cunningham is going to win the Senate seat in North Carolina, the numbers do not favor him. I would not wager on it, I would rather be Tom Tillis if I wanted a – I mean, I wouldn’t wanna be Tom Tillis, but I wouldn’t wanna be Cal Cunningham either, in fairness. [Laughs]
Andrew: I’m not saying that he is a favorite. I am saying that there is a reason why nobody has called this race as of the time that we record this and that I think no one will call this race even after we record it. That is because this lawsuit is ongoing.
So, what happened? On election day itself – I almost didn’t tell the story! On election day itself Judge Sullivan ordered the U.S. Postal Service to comply with an election day order that says “you will send” – I’m gonna read you from this minute order:
“You will send postal inspectors or their designees to processing facilities in the following districts and order a sweep of the facilities to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery.” That was ordered in Central Pennsylvania, Philadelphia, Detroit, Colorado, Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland, and Arizona.
Louis DeJoy, for the first time of any Trump administration official, told the judge “no.” Filed a report that said no, I’m not gonna do that. As you might imagine, this did not make Judge Sullivan very happy and Judge Sullivan has ordered subsequent orders over the next couple of days. They are continuing as we record this. There is an order out right now directing the parties to inform the court as of literally the time that we record this [Laughing] (quote) “whether they agree with the court’s order that USPS employees shall be directed to undertake a sweep of the facility on the morning and then again in the afternoon of November 6,” that is Friday, November 6, “to identify all inbound ballots.”
Then as of the time that we recorded this they order that all of the USPS processing facilities that serve a state with an extended ballot receipt deadline shall “until that deadline passes, perform a morning ballot sweet no later than 10 am local time and a mid to late afternoon ballot sweep that is timed to ensure that any identified local ballots can be delivered that day.
Upon completing the sweep each facility shall report to USPS headquarters the total number of ballots identified and confirm that those ballots had been expedited for delivery to meet applicable extended state deadlines.” Beginning today, the time that we record this on November 5th, and “until further order of the court shall promptly submit a single report with the total number of ballots identified through daily sweeps” with one exception for “facilities that are located in states whose ballot deadline is that day. Defendants shall submit the result of those sweeps to plaintiffs immediately following the receipt of the results of the second sweep of those facilities.” That order was entered today.
Thomas: Ah, I need like an Andrew Torrez to tell me what all of that meant.
Andrew: [Laughs] It means that because of the shenanigans two things are gonna happen. The first is I don’t know how badly Louis DeJoy and the post office screwed this election.
Andrew: I can’t tell you. I can tell you it wasn’t millions of votes, it doesn’t appear to be millions of votes, but it does appear to be hundreds of thousands of votes. Is that enough to have shifted the vote in Texas or Florida? I don’t know.
Thomas: Probably not.
Andrew: Probably not. I can’t tell ya. I can tell you it will not change – there’s nothing we’re gonna be able to do to uncall Texas and Florida even if it did. If it did we will find out in December, it’ll be too late but Biden will already be President and we’ll find out “oh, by the way, he shoulda won two or three more states,” who knows? All of that is kind of on the side as you’re thinking about what does this election mean? What it means is that one of the many tactics that the administration used was to instruct the post office to slow down the delivery of completed mail in ballots knowing that those ballots would disproportionately favor his opponent.
And it means, because of their cavalier disregard – look, they got away with it on election day. They were ordered by the court to sweep for missing ballots and they didn’t do it. They told a sitting judge to go clownhorn himself.
Andrew: But because of that the judge has now – the good news is the judge has said okay, but to the extent that it matters, and it matters in North Carolina, you have to do a sweep. You have to do a sweep twice a day until next Thursday, until November the 12th, until it is past the deadline for counting votes and in every other state that allows those ballots to come in late, which includes Pennsylvania tomorrow (which will have been last Friday by the time this comes out.) You have to go through, fill out a sweep, and then sign under penalty of perjury – and that was specified in the first order – how many ballots were found, that they were delivered, that they were expedited out, and that the sweep took place. That will continue and we will get daily updates from the U.S. Postal Service until the close of ballots being received in North Carolina and in any other state.
I dunno, I can’t tell you what’s gonna happen. I can tell you; you know, the numbers strongly favor Tillis but there you go.
Thomas: Alright well I’m not counting on that because I’m Negatron, but who knows? Would be a nice surprise if it works out.
How to Handle a Senate Minority
Thomas: Okay Andrew, now it’s time to I guess prepare ourselves for the worst-case scenario which is unfortunately still very probably. Who knows? Who knows how it’s going to end up? What are we looking at if, in fact, we get a Biden victory and come up just short, 48 or 49 in the Senate?
Andrew: We’re looking at – I wanted to cover this not just to give a healthy Negatron dose to the show after going through that A segment, but to start laying the groundwork. Here’s what’s gonna happen: Joe Biden will be able to accomplish far less than anything Obama did in his last two years or that Trump did in his entirety of his term. I think people think, there’s this sort of baseline of “oh, okay, it’s gonna be divided but it was divided for Trump-
Andrew: Biden’ll get executive orders and appointments so you know, at least we’ll have that. That will not be the case. Joe Biden will be able to do very, very little and I suspect that if they are looking at a Republican Senate, they’ve got two different game plays. The game plan for what to do with a Republican Senate probably looks like this, looks like we’re gonna be able to pass laws that should be no brainers. That are not no brainers because, you know, we have a criminally insane gameshow host as President right now, but can we pass COVID relief where everybody agrees? We can probably do something with that.
Thomas: I don’t know about that.
Andrew: Well, Negatron is alive and well and that’s fair.
Thomas: I believe the McConnell point of view will be never, ever give a Democratic administration a win of any kind. They don’t care.
Andrew: I think that’s plausible. Let’s talk about that scenario. We can’t pass any laws because McConnell says the same thing he said in the last two years of the Obama administration. What can we do? We can undo Trump executive orders, that can be done with the stroke of a pen. That is the one, and the only, thing that Joe Biden can definitely do is undo previous executive orders and issue new ones.
We can rebuild executive agencies from the inside, that is begin to hire competent people to staff up positions that have been gutted and filled with Trump loyalists and 24-year-old graduates from Liberty University and crap like that.
We can – not doing anything else – your DOJ could certainly investigate the Trump administration-
Andrew: -and his cronies for crimes.
Thomas: Yeah, that is one good thing. [Laughs]
Thomas: It gives me a little bit of happiness even though this is overall very devastating if we don’t take the Senate. It really is very devastating, but maybe punishing Trump a little bit for stealing from the – just every – how do I even summarize? For everything he did, you know.
Andrew: Look, if I were advising President Biden, and I kind of am in this.
Andrew: That would be part of my carrot and stick approach. [Laughs]
Andrew: When I went to Mitch McConnell I’d be like look, if we can’t do anything, if what you’re saying is don’t bother because you can’t do anything, then okay. I have an awful lot of time to carry out an awful lot of investigations-
Thomas: Ah, he won’t care. What loyalty will McConnell have to Trump?
Andrew: Oh I don’t think that he’ll have any loyalty to Trump but I think it will reveal an awful lot of the, you know, corruption that took place. Again, does some of that trace back to McConnell, to Elaine Chao? It kinda looks like it does.
Andrew: I don’t know right now, not claiming that it does.
Andrew: I am claiming we have some time to take a look and figure it out if there’s nothing you can do. But, I wanna stress this, what I wanted to do in this segment is talk about… [Chuckles] is first scare you a little bit with Mitch McConnell doing to Joe Biden what he did to Barrack Obama’s judicial appointees. That is not just saying hey, you don’t get to fill any judges, which I believe he will do. I think, if we don’t take the Senate-
Andrew: -there is zero chance of any judge getting appointed so our already drastically, critically overworked courts will go into the red, deeper into the red for two years. I think that also means, by the way, that when we take back the Senate in 2022 there will be a nationwide – it’ll be a no brainer to pass what will then be the Judiciary Act of 2023 and expand the courts. But look, we’ll get no judge.
The other thing, and I want to start introducing you to this term and I wanna get this out here early because if we’ve lost the Senate, we need to develop the battle plan. There are about 100 executive branch appointees that are what we call “PAS Offices.” That is, they’re presidentially appointed but with the advice and consent of the U.S. Senate.
Andrew: People like Secretary of State, and the principle deputies, the Attorney General and the Assistant Attorney General are confirmed by the Senate, and Mitch McConnell absolutely could decide to take the same tacit he took with respect to Merrick Garland and say “yeah, you send me somebody I don’t like I’m not even gonna hold a hearing on it. I’m not gonna give Susan Collins and Lisa Merkowski and Mitt Romney a chance to defect, I’m just not gonna stick it on the calendar.” There is nothing we can do about that.
But there is something we can do in response to that, and it has to do with the Federal Vacancies Reform Act, 5 U.S.C. § 3345. Under 5 U.S.C. § 3345 the President can appoint an acting official; we’ve seen Donald Trump do this.
Andrew: You’ve seen Donald Trump be incompetent at this. [Laughs] Because what Trump was able to do, was able to sneak through, was he got a bunch of people confirmed for the jobs that they were doing then once you have been confirmed by the Senate then under the FVRA it’s sort of easier to shuffle you around to other jobs. The idea is that advice and consent of the Senate is meant to serve a gatekeeping function so if you pick somebody – again, example for Donald Trump, you pick someone like a Ken Cuccinelli that even other Republicans are like “man, this guy is sleezy and incompetent-
Andrew: -and extreme and stupid and we’re not gonna work with him. So, Ken Cuccinelli, never been confirmed by the U.S. Senate, even the Republican U.S. Senate. What you do is you move a bunch of different Senate-confirmed guys around, but let’s assume that Mitch McConnell says no, we’re just not gonna hold a hearing on anybody, what you can do?
Here’s what you can do: § 3345(a) says, and subsection (3), says that the President may direct a person to perform acting duties if that person served in a senior position in the relevant agency for at least 90 days in the year proceeding the vacancy.
Andrew: They do not have to be confirmed by the Senate, they do not have to be an acting deputy somewhere else, so you can do – and by the way, this is what they did with Ken Cuccinelli – slight sidebar, Ken Cuccinelli was [Laughing] illegally appointed, but the thing they screwed up was not creating the job but they – so let me first explain what they did. They created a brand-new position at the Department of Homeland Security called the “Principal Deputy Director.”
Andrew: Then they appointed Ken Cuccinelli to that position, then immediately transferred him to make him the Acting Director, but the problem was he wasn’t there for 90 days and he’d never been confirmed by the Senate.
Thomas: Oh. [Laughs]
Andrew: So then they made him the Acting Senior Official for –
Andrew: I’m 100% serious about this, they would have gotten away with it if they had just waited three months.
Thomas: The 90 days? Yeah. [Laughs]
Andrew: Because what they tried to say was well the Principal Deputy Director is the first assistant so therefore once we make him the first assistant then he can become the Acting blah blah blah, and again the overriding theme of the Trump administration was unrestrained evil checked only by incompetence.
Andrew: You’re Joe Biden, here’s what you do for every executive department. You fire everyone down to the level of the people you can trust who were already working in your agency. In some agencies that may be nobody, in things like the Department of Justice there are many many many many many good senior career prosecutors chaffing under Donald Trump who would love to be Acting Attorney General. There’s a complex system we’ve talked about before in our G. Zachary Terwilliger episode-
Andrew: -to figure out who gets to be Acting when there’s no Attorney General, there’s no Assistant Attorney General, there’s no Deputy Attorney General, there’s no Principal Acting Senior Attorney General.
Thomas: Yeah. Have we seen the last of G. Zachary Terwilliger?
Andrew: We may have seen the last of G. Zachary Terwilliger.
Andrew: So you fire everybody-
Thomas: Which, by the way, I just wanna point out thought that’s not something that normally you’d happily wanna do.
Thomas: You know, I imagine in 2008 this wasn’t what Obama had to do.
Thomas: Because this is the kind of thing that’s mainly necessary because of the extremism of this last administration.
Andrew: Yes, exactly right. So fire everybody who’s a Trump loyalist. You pick who you want to be your Secretary of State, your Attorney General, your Secretary of Transportation. You create a whole bunch of Principal, Deputy, Secretary of State-
Thomas: Assistants to the Regional Manager?
Andrew: Yeah! I will tell you, I know that that’s a joke from The Office, and the reason I know that is because that joke is cited in the footnote of the Cuccinelli decision.
Thomas: No way, awesome!
Andrew: I was going to quote it on the air but I realized I didn’t know the context so-
Andrew: I waited for you to make it, but yes. You create Principal Assistant to the Regional Manager-
Thomas: Yeah, and that’s one of The Office jokes that’s in both the British series and the American one, so we can all laugh at that.
Andrew: There you go, yeah! Across the pond we’ll all share a chuckle.
Andrew: They must be a GS 15, which is the highest level of government employees, but it’s 4.3% of the federal workforce. There’s 75,000 GS 15s out there right now. You’ve got a large pool to choose from, and nothing to stop you from creating a whole bunch of new ones. You stick your would-be Attorney General at the new position, they gotta stay there for 90 days, but then at the conclusion of the 90-days you can appoint them and- so you may see that under the Federal Vacancies Reform Act that they can serve for a year, that’s kind of true. Except that there are additional benefits to Joe Biden in this situation baked into the FVRA and I’m going to read those to you now.
Typically, you get the person you make your Acting whatever – we talked about this with Chad Wolf, can only serve for 210 days. Chad Wolf has exceeded his 210 days and that incompetence, as we’ve talked about, the FVRA provides relief where ordinary citizens have standing to sue to render void ab initio any actions that an acting director takes that are not authorized by law. A big chunk of stuff that Chad Wolf has done is going to get invalidated. That’s super-duper clear.
We don’t want a big chunk of stuff that Joe Biden’s acting Attorney General and acting Secretary of State are all gonna have to do, we don’t want all of that invalidated so we gotta play by the rules, but it’s not hard to play by the rules here because there are two bonus points on timing that will thwart Mitch McConnell. It is this – first let’s start with § 3349a. That is when you have a new President coming in you get 60 “transitional inauguration days,” so if the vacancy occurs at any time during the transitional inauguration day you then get 90 extra days to fill that vacancy before the 210 days kick in.
Andrew: 210 plus 90 plus 60 is a whole year. You gotta start teeing up the process again, this time at the end of 2021, beginning of 2022, but-
Thomas: So does that mean we just have to have a different appointee each year?
Andrew: Yeah! You just have to have a second. You’d like your Secretary of State to serve for more than a year-
Andrew: But I’d much rather have two Secretaries of State than have Mitch McConnell-
Thomas: How two?
Thomas: Do they alternate? Is that what it is?
Andrew: Well I’m saying the first one would serve until the time runs out.
Andrew: Then you’d have to elevate another person, that’s a quick transition but it’s better than letting Mitch McConnell dictate who your Secretary of State needs to be.
Thomas: Apologies, I’m trying to figure out how the full four years is covered, because you’ve said there’s a year limit.
Thomas: Do we have four different Secretaries of State?
Andrew: Assuming we take back the Senate in 2022.
Thomas: No, I’m not assuming that, but okay.
Andrew: By the way, the map is amazing for Democrats in 2022.
Thomas: Why is the map amazing for Democrats? In 2016 we lost.
Andrew: Because Republicans – right, for precisely that reason, because Republicans won in a bunch of blue states in 2016. We don’t have time to go through it.
Andrew: The map’s super good for us in 2022.
Thomas: Okay, alright.
Andrew: We can do that on a later episode, just trust me on that.
Andrew: It gets better than that, because – okay, that’s the you get 360 days and then 210 for the next one, but § 3346 goes beyond that and says because the Acting Secretary of State or whomever serves only insofar as the Senate does not act on a nomination submitted to it! So, what you do is you say hey, I really really want Elizabeth Warren to be Secretary of the Treasury. By the way, I’m gonna have – it’s gonna take me three months to get them out there, but this person, Elizabeth Warren’s Deputy is presently toiling away at the Treasury Department as the Principal Acting Subdirector to the Regional Manager-
Andrew: -and 90 days from today I’m gonna name that person Secretary of the Treasury if you don’t confirm Elizabeth Warren. Then what happens? Subsection (b)(1): “If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President … the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.” Okay, so you get a whole ‘nother three quarters of a year added on to your sentence.
Subsection (2) is that you try again. You say alright, you didn’t like Elizabeth Warren? Okay, Bernie Sanders is gonna be Secretary of the Treasury-
Andrew: Then Mitch McConnell says well we’re just never gonna hold a hearing on Bernie Sanders.
Andrew: Then § 3346(b)(2) kicks in, nobody else has noticed this!
Andrew: (b)(2) says, I’m gonna read it to you here on the air, I have researched the cases on this, I am 100% correct: “Notwithstanding paragraph (1),” (the stuff I just read you about how you get an extra 7 months) “if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve until the second nomination is confirmed;”
Andrew: Or “for no more than 210 days after the second nomination is rejected, withdrawn, or returned.” In other words, FVRA will allow us to force Mitch McConnell to have a hearing because if he just sits on it, if he just does nothing, then our Deputy Assistants can sit around and occupy the job forever. Until the end of Biden’s first term.
Andrew: There’s not a damn thing that Mitch McConnell can do about it.
Thomas: Andrew, I love this. I love that you’ve gone to the detail, I love the one weird trick, I love that nobody’s checked (F) subheading (b)(c)(12) sub-dash whatever, it’s great, it’s fantastic that you did this, I love everything about this. I just wanna point out, this is all so we can *checks notes* staff the government. [Laughs]
Thomas: [Groans] Ugh, I hate to be the Negatron!
Andrew: No no no! No, look-
Thomas: But it’s all so we can have a person in a position that should be a no brainer. Every single President before this gets to – even Republicans say the President gets to staff their cabinet. Just keeping in perspective how outrageous this will be when McConnell inevitably tries to keep us from even staffing these high-level positions that should be a no brainer.
Andrew: Correct. And let me say I am saying this in response to the reports coming out today as we record this show that Mitch McConnell, if he retains control of the Senate – and again, this is an indication, given that we recorded the show last Thursday, that Republicans knew they’d lost.
Andrew: Mitch McConnell was openly talking about how this election was a mandate for divided government and he was going to force Joe Biden to submit centrists as candidates for his cabinet positions. Mitch McConnell is already eying this, has already thrown down his marker, and I’m telling you, Joe Biden does not have to give in to the thuggery of Mitch McConnell. The “one weird trick” that McConnell got to hold in his back pocket that worked for judicial nominees – and it will work again. Look, we are not getting judge- you wanna talk about, you know-
Andrew: How much should we pack the court? We will not get a single sitting judge no matter how conservative, no matter how competent, under Joe Biden until Mitch McConnell is out as Majority Leader of the Senate. It will not happen, our courts will slow to a crawl, it will be especially bad on civil litigants because you have the constitutional right to a speedy trial so underfunded and understaffed courts with judicial vacancies will just drop civil cases to the bottom of their buckets. They’ll just be like yeah man, I’m sorry, I can’t deal with this billion-dollar patent infringement lawsuit right now, I’ve got a guy who was arrested for jaywalking I gotta schedule for a hearing.
If you think that typical Republican constituencies are gonna be super happy about the fact that they cannot go into court and get speedy relief on their civil claims you’ve never worked in big law, and I have. [Laughs] That’s gonna create pressures, but look, that’s gonna happen. McConnell already did that for the last two years of Obama’s presidency, he’s going to do it for the first two years of the Biden presidency, but he cannot do it with respect to cabinet level appointees unless Joe Biden rolls over. It is our job to make sure to get it out now and to stay strong. If we’ve lost the Senate Biden needs to know and he needs to be working on this now.
Andrew: He needs to be out there identifying-
Thomas: He’s gotta get people into those Assistant Regional Manager positions! Ahead of time.
Andrew: Yeah! He’s gotta be figuring out, who are the GS 15’s in all of these departments that he can count on that would make quality Acting Assistant Associate Directors and he’s gotta act on it. And he’s gotta be prepared, by the way, in cases where there may be a vacancy for three months, to be able to work without his best team of rivals around him, because that’s what Democrats do! That was the Obama model. Democrats try and staff these positions with the most competent, the best voices, to help them make decisions as opposed to Donald Trump who staffs them with the sycophants who will help him commit crimes.
We’re gonna be stymied on that, but ultimately Joe Biden has the better hand. Gonna require some hardball, I’m thinking’ Joe’s up for it and we’re gonna help him get there.
Thomas: Let’s do it! We have to. I actually have some confidence. [Sighs] As much as people, you know, justifiably so, do get mad at Obama for not realizing sooner that Republicans were – you know, we handed Republicans a bunch of border crap and immigration crap that they wanted thinking it would help us make deals and it didn’t. I think, hopefully, Joe Biden remembers he was there for that and remembers what happened and we will not make the same mistake twice.
Andrew: Let’s amplify that a little bit. If you ask Joe Biden not only “what was your biggest legislative screw up,” what did you most get wrong in your term in the U.S. Senate? And also, coincidentally, what hurt you the most as a presidential candidate he would tell you the Crime Bill of 1996,
Andrew: That absolutely turned out to be a disaster for the country and a disaster for him politically, and that was the result of Clintonian, you know, “okay, you give us midnight basketball and we’ll give you locking up black people forever.”
Thomas: Yes, and also consensus was just different back then about what was good for fighting crime.
Andrew: Yeah, we’ve litigated this out.
Andrew: Look, again, I’m deliberately portraying it in the worst possible light. When I have defended that crime bill – and I said ’96, I meant ’94. I have defended that crime bill because it got a nation- we got Republicans to vote for nationwide gun control banning assault weapons. I do not mean to suggest that it was indefensible at the time and you and I have both said it was kind of an unfair set of attacks on Biden.
All of that being said, that would be the opening argument I would use. I would say, if I’m a Biden advisor and he says well, should I got to Mitch and try and craft? That’s what I’d say, I’d be like yeah man, if you wan another Crime Bill of ’94 around your neck go for it. This is what they’re gonna do to us. Why don’t we stop playing by the Bill Clinton rules and start playing by the Mitch McConnell rules? That’d be my argument. Biden, you know, the areas where he seemed passionate certainly seemed to dovetail with the grotesque abuse of the system that took place behind the scenes.
Again, Joe Biden was in the Senate for 200 years.
Andrew: He knows exactly what Mitch McConnell did and is doing, and I-
Thomas: He was in the Senate so long, Andrew, I don’t know why he didn’t fix COVID. I don’t understand!
Andrew: [Laughs] Exactly.
Thomas: He was there for 47 years; how do you not fix these problems that happened under Trump? You know, that’s what made the difference for Trump in the election, that attack, I’m sure.
Andrew: You know, we’re laughing? But Donald Trump got 48% of the vote.
Thomas: I know, I know! I know. Andrew, you know what I hear when I hear you going through all this? You know what I hear? I hear so many future OA deep dives.
Thomas: I hear so much to cover! There was never any risk that we would run out of things!
Thomas: In either case, I really – I’m going to be so devastated if we don’t have the Senate. I cannot emphasize enough, you cannot emphasize enough, we all can’t – just how bad that is if we don’t win the Senate. It’s really, really, really bad. But, assuming we don’t, there’s still things we can do and even that much more we’re going to need to do breakdowns of lots of “one weird tricks” to find every single thing in our arsenal to get anything changed. It’s gonna be a slog. Hopefully it doesn’t come to that, and hopefully we pick up these two Georgia seats if indeed that is where we stand. We’ll know this coming Thursday, right? Or Friday?
Thomas: When’s the final North Carolina?
Andrew: We’ll know [Laughs] We’ll know what our odds look like this coming Friday.
Andrew: Thursday is the deadline, Friday is when North Carolina will certify – will finish its counts, I don’t know that the Board of Elections will certify, but yeah. We’ll have an answer by the time – probably too late for the next show.
Thomas: For Friday’s show maybe? Oh, okay.
Thomas: We’ll see.
Andrew: Maybe. It’s possible, but [Laughing] probably not.
Andrew: Probably we’ll have to do an emergency drop or put it on social media or something like that. Again, we think, as of the time of the record, that there are going to be two runoffs in Georgia. Think about it this way, it’s really the difference. If Cunningham wins his seat then it is flip two coins get one head and you take back the Senate versus flip two coins, get two heads to take back the Senate.
Thomas: It would be hard to imagine there would be much difference in the votes between the races, you know? Maybe, but I feel like it’s going to be so little to do with the candidates and so much to do with Democrats fighting for control of the Senate, Republicans fighting to not give it to us.
Andrew: I think that’s right, but ultimately, I think in a purple-ish state like Georgia it’s gonna come down to Republicans who don’t want to pull the level for either Purdue or Loeffler.
Andrew: I’ve been wrong on an awful lot this political cycle so let me not put my pundit hat on. You are correct in that I said it as two coin flips, that assumes that the events are independent of each other and obviously they are highly correlated.
Thomas: Yeah. It might be one coin flip, essentially.
Thomas: If they’re correlated perfectly one to one. I will say this, and as not amazing as it will be to have a 50/50 tie because, as we’ve covered, that means Joe Manchin, whoever the rightward most Democrat is will have a lot of control in the Senate. It’s still an astronomical difference between sure, maybe a Joe Manchin might stop some legislation, probably will honestly, stop some legislation that we want to happen, but it’s all the difference for judges. It’s all the difference for appointments. There’s still going to be things that there’s no chance that we won’t have the Democratic consensus on in the Senate if it’s 50/50, am I right?
Andrew: Yes, and I love that you went to judges. Look, it is the difference – we will see. God, we’re gonna get it from certain corners, but it is the difference between – because they’ll say well Joe Manchin will veto Elizabeth Warren as treasury secretary.
Thomas: Uh, I dunno.
Andrew: A, no he won’t.
Thomas: I don’t think so on that.
Andrew: Yeah, I think every Democrat will support anybody that Joe Biden wants to serve in his cabinet.
Thomas: I think so.
Andrew: And the second part is really the critical aspect. We need Chuck Schu- and again, look, neither you nor I are big fans of Chuck Schumer. It’s not like Chuck Schumer’s a great guy.
Andrew: It’s not like he’s super progressive, it’s not like he’s a brilliant strategist. It doesn’t matter, we need Chuck Schumer as majority leader to schedule hearings.
Andrew: It is the difference between replacing-
Thomas: Hearings on the damage done by Trump, by the way!
Thomas: Lots of stuff, it’s a big deal.
Andrew: It is not just oh, it’s his judgment. Joe Manchin does not give one clownhorn who gets nominated to be the U.S. District Judge-
Andrew: For the Western District of Oklahoma, but I do, and you do, and Joe Biden does.
Andrew: That nominee will not go through if we do not take the Senate, it is everything, absolutely. I didn’t even get to – gosh, we’re gonna have to do another deep dive on this. Can I do 8 seconds on one more huge thing? Which is remember when Donald Trump came in and overturned a whole bunch of late Obama-era regulations that were passed in 2016?
Thomas: Oh, because of that one weird trick?
Andrew: Because of the Congressional Review Act.
Andrew: I’m gonna do much more of a deep dive on the Congressional Review Act, ‘cuz we have to. It is 5 U.S.C. § 802, but here’s the thing, that’s a law.
Thomas: Uh-huh. Will they be hoist by their own petard, possibly?
Andrew: If we own the Senate, yeah. We can come in and undo the last 6 months, everything Trump does as rulemaking we can undo everything with the Congressional Review Act. It is filibuster proof, it will be glorious, you will love it, we need to have the Senate for that. If we don’t have the Senate we will be stuck staffing executive agencies – they can overturn those Trump rules, but they’ll have to go through and follow the Administrative Procedure Act. They’ll have to hold hearings; they’ll have to have public notice and comment. It will take longer and that’s not just me going “man, do it faster.”
These regulations are the regulations that are hurting our friends right now. These are the anti-Trans regulations in the military, these are the regulations putting kids in cages; these are the kinds of things – to change the guidance I would much rather have every tool at my disposal than be deprived of a pretty big one. Yeah, thank you for reminding me of that, I wanted to at least do 30 seconds on the CRA. No CRA if no Senate. There you go.
[Patron Shout Outs]
Thomas: Oh, thank you folks so much for pledging, can’t wait to give you more bonus stuff in this new era. [Sighs] It’s nice to be done with election day.
Andrew: It’s gonna be great! We’re gonna give strategy to Joe Biden, we’re gonna attack him from the left. We’re gonna attack people who attack him from the left when they’re wrong!
Andrew: Thomas, you and I had this vision of helping people navigate normal news that gets the law wrong.
Andrew: We did not think we were gonna have to deal with a gaslighting monstrosity. We did, we made it through the rain and there’s not that much longer now.
Thomas: Alright it is time for T3BE answer time. Did I start off this new era on the right foot? [Laughs]
Andrew: Yeah, so Thomas, this was a self-defense question.
Thomas: A Tombstone law question.
Andrew: Yeah, Tombstone law! So rancher and his neighbor are disputing over where the boundary lies. They both approach while ominous rattlesnake music plays in the background.
Thomas: I’m pretty sure the rancher gets to just say “no, I don’t think I’ll let you arrest me today” and then that’s the answer to the bar question.
Thomas: I’m a big Tombstone fan, it’s a great movie.
Andrew: I’m with you, I like Tombstone. So there you go. More things we have in common. Rancher is there accompanied by four friends, the neighbor is alone, they both approach a fence, rancher gets out, stands by his truck, neighbor hops the fence, comes towards him and the rancher just shoots him-
Andrew: Inflicting serious injury. The neighbor brings a battery action against the rancher and the rancher says “no no, I thought you were carrying a weapon so that’s why I shot you,” but the fact pattern says that that’s just a subjective belief, he can point to nothing that would have reasonably justified this belief. Is the neighbor likely to prevail? You narrowed it down to what you thought was the best no answer, which is the castle doctrine, stand your ground: No, because the rancher was standing on his own property and had no obligation to retreat. Then you said yeah, but we’re not talking about just you have a duty to retreat, we’re talking about he used force, you shot the guy!
Andrew: You picked the best yes answer, D, it was unreasonable for the rancher to consider the use of a gun necessary for self-defense. Thomas, you’re starting off the next 200 on the right foot, my friend!
Thomas: Alright! Phew!
Andrew: Good election, happy results here, and happy results to T3BE. The correct answer is D, it was unreasonable for the rancher to consider the use of a gun necessary for self-defense. The rancher’s belief that deadly force was necessary was subjectively actual, but not objectively reasonable and you must satisfy both prongs in order to defend yourself.
A, not correct because stand your ground – here, I’ll read from the bar question. “The majority of states that recognize a right to stand one’s ground rather than retreat limits that right to an owner who is confronted in his home,”
Andrew: “not one simply standing outside on land that he owns. Also, even if the rancher had no obligation to retreat, he used deadly force, which is not justifiable unless he had reasonable belief that he himself was threatened with that degree of force and needed to use deadly force.” Exactly right, I needed to read that to you because I was gonna say well – they used the same words you used, Thomas!
Andrew: Retreat is one thing, but he was not. The doctrine of retreat comes up when you’re in a scuffle.
Thomas: Yeah, ‘cuz by this logic you can just kill anyone who comes over for a dinner party.
Thomas: You need no justifi- I can shoot anyone in my house.
Andrew: Yeah, that’s absolutely right. By the way, you were also correct that the other answers were kinda nonsense.
Thomas: Did we ever figure out if this test is getting easier? I feel like it’s getting easier.
Andrew: I think you’re getting smarter.
Thomas: Going with the obvious answer has been working out a lot more than I remember it working out the first 150 questions, I dunno. We’ll see.
Andrew: I think what’s obvious to you has just-
Thomas: Is becoming more clear or something?
Andrew: Has just become more clear, that’s right.
Thomas: Okay, alright!
Andrew: Good work, Thomas!
Thomas: Well, let’s play the music!
Thomas: And Mr. Torrez, hop in your time machine and tell us who’s gonna win the Georgia runoffs.
Thomas: Oh, alright, just tell us who the winner of T3BE is, I guess.
Andrew: Well Thomas, and this is gonna be no surprise to you. This week’s winner is the entirety of the United States of America and quite possibly all of the world. That’s right, just like we predicted in between when we recorded the show and when this show is going live Joe Biden, Kamala Harris have been elected the next President and Vice President of the United States of America. I can’t think of a better way to celebrate that than on this show and so we’re really, just for one day, we’re all winners.
Thomas: Thank you so much for listening, that’s our show, we will see you on Friday!