Transcript of OA441: Trump Still Lost

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 441, I’m Thomas, that’s Andrew.  How’re you doing?

Andrew:         I’m fantastic Thomas, how are you?

Thomas:         I might be fantastic as well.

Andrew:         [Laughs] Good!

Thomas:         Yeah, I mean lots of Andrew Was Right’s to talk about today, which are, you know, those are fun.  I like when you’re right.

Andrew:         They’re fun for me too!

Thomas:         Yeah.  Usefully correct in several different instances here.  Can’t wait to boast about it.  Also, reminder, we’ve got that Cognitive Dissonance fundraiser live stream that is, again, Black Friday, the 27th at 1 pm Pacific, 4 pm Eastern.  Gonna be a lot of fun, we’ve gotta raise money for those Georgia seats, we gotta win ‘em.  It’s so important, it is incredibly important.  Forget about Joe Manchin, leave it aside, we might be able to convince him of some stuff, but even if not, even if Joe Manchin goes full Joe Manchin, we still need those seats.  Imagine if we are stifled from appointing any judges for another four years.  Imagine how catastrophic that would be.  Don’t let that happen.  The way you do that is by [Laughing] coming to our live stream!

Andrew:         Yeah.  Look, we have donors who are going to match every dollar that is donated during the live stream.  This is really a fantastic time, make your donations go twice as far.  I cannot stress this enough, it’s really, really important that we beat the people over at Puzzle in a Thunderstorm, that we beat the Knowledge Fight guys.  Yeah, we need you to show up and we need to save democracy and all that, but far more important than democracy, my ego is on the line here.

Thomas:         Hmm.

Andrew:         Don’t let me down.

Thomas:         Alright, today we get to talk about, as I said, the places where you were right.  A lot of people shared this with us, by the way.  We’ve got so many astute listeners keeping track of the news and seeing the Chad Wolf stuff and saying “huh, I think Andrew told me about this.”  There’s that and we’re also going to talk about the electoral college and when these electoral college votes are actually certified, when we can actually – I don’t know I still am probably gonna not be fully relaxed until January 20th?  [Laughs] But we’ll at least know what’s going on with the schedule there and when everything is officially made official.  [Laughs]

Andrew:         [Laughs]

Thomas:         Never thought it would matter that much, but okay.

Andrew Was Right – Chad Wolf

[3:46.5] [Segment Intro]

Thomas:         Here we go.  Andrew, the Chad Wolf news.  That’s only one of several items you were right about, but give us the update there.

Andrew:         Yeah.  A federal district court judge, Eastern District of New York just issued, this is now court number 3 to rule in specific cases challenging actions made by Acting Secretary of Homeland Security Chad Wolf and this is the third court, 3 for 3, that has determined that Chad Wolf is not lawfully appointed in his position and therefore the stuff he’s doing is not legal and can be overturned, and is being overturned, by the court.  He’s doing a ton of evil stuff.

Thomas:         Yeah.

Andrew:         So, these are really, really good decisions.  This had to do with his decision suspending all of DACA.  You don’t have to get into whether a lawfully appointed Secretary of Homeland Security would have the power to do so, which is a complex argument that we’ve come up to sort of around the edges on the show, ‘cuz Chad Wolf is not the lawful acting head of the department-

Thomas:         Sort of sidesteps that whole legal question, doesn’t it?

Andrew:         Yeah.  That is exactly right.  Let me talk about the legal grounds because this is really, really interesting in that it is as bullet proof an opinion as you get.  We’ve previously discussed how if the theory is Chad Wolf is Acting Head of DHS under the Federal Vacancies Reform Act, then we’re way past the 210-day period.  Everything after 210 days is void ab initio and will get overturned.

Thomas:         By the way void ab initio I’m pretty sure is a Harry Potter spell that gets rid – in Harry Potter court.  Do they have any lawyers and courts in Harry Potter?  I don’t know.

Andrew:         [Laughs]

Thomas:         Anyway, that would be – the judge would be like “I declare this void ab initio!”

Andrew:         Yeah.

Thomas:         And a unicorn would pop out of his wand and yeah.

Andrew:         It’s the spell that makes it disappear.

Thomas:         Yeah!

Andrew:         That’s what that means, it goes the hell away.

Thomas:         [Laughs]

Andrew:         It’s exactly what’s gonna happen with Donald Trump on January 20th.  It’s just hey, there’s some guy named Chad hanging out in the office here signing his name to the stationary, but he’s just a guy!  He’s not actually the Acting Secretary.  That’s what that means from a legal perspective. 

Initially the argument was Trump was saying he was appointed Acting Head under the Federal Vacancies Reform Act, but since they can’t count, they decided to morph their argument and it’s made it so much worse for them!  That’s what makes this delightful.

Thomas:         [Laughs]

Andrew:         Remember the Federal Vacancies Reform Act sits on top of a bunch of other different laws.  Each executive agency, and there are dozens of these, has laws about succession, who becomes the First Lieutenant, who becomes Acting, who becomes Deputy, all of that stuff.  They’re all different because they all get passed piecemeal because federal agencies get created all the time.  The Department of Homeland Security was created in 2001. 

The argument was oh, he was not made Acting Secretary under the Federal Vacancies Reform Act, he was made Acting Secretary under the Homeland Security Act.  This court, now, agreed with that argument but said oh, okay, you’re not looking at the FVRA, that would make everything void ab initio after 210 days.  Let’s see if under the Homeland Security Act, he was the proper First Lieutenant to succeed, then, up the ranks to become Acting Secretary of Homeland Security. 

For this what we have to do is go back to 2019, to then Secretary Kirstjen Nielsen, who wrote a letter on April 9th of 2019.  That letter said “if I resign you need to follow Executive Order 13753 to figure out the line of succession.  And also, if I’m unable to act because I’m incapacitated, you can follow these people on this appendix that I’m gonna staple to this letter.”  That’s what Nielsen wrote on April 9th, 2019.  The next day, April 10th, she resigned.  This court said okay, that seems really super duper clear, let’s look at what Executive Order 13753 says.

Executive Order 13753 says “you follow the following chain for line of succession.”  First, the Deputy Secretary of Homeland Security, but since this is Donald Trump’s department, that was vacant.  Then the Undersecretary for Management.  But again, since this is Donald Trump’s Department of Homeland Security, that was vacant.  Third in line was the FEMA administrator.  Thomas, would it surprise you if I told you the position of FEMA administrator was also vacant?

Thomas:         It would not surprise me, Andrew.

Andrew:         Yeah, and it was.  Fourth [Laughs] I promise this will end soon.

Thomas:         [Laughs]

Andrew:         The Director of Cybersecurity and Infrastructure Agency-

Thomas:         Wow.

Andrew:         Or CISA, and that position was not vacant.

Thomas:         Ooh!

Andrew:         It was occupied by a gentleman named Christopher Krebs.

Thomas:         By someone who I imagine was really confused.  Like, what?  I’m in line?  What?

Andrew:         [Laughs] No, somebody who not only was confused but you may have heard of Christopher Krebs because-

Thomas:         Oh.

Andrew:         While he was a Trump appointee, he was appointed by Trump in March of 2017 as Senior Counsel to the Secretary for the Department of Homeland Security, he then rose up the ranks to other jobs and he became Director of CISA by April 10th 2019.  He remained in his job, they bypassed him to go to Chad Wolf, and post-election Krebs spent – until he was fired two days ago – his time debunking the crazy stuff Donald Trump has been saying.

Thomas:         [Laughs]

Andrew:         He’s Director of CISA, Cybersecurity and Infrastructure Agency, so as lunatic representatives for Donald Trump have been claiming insane things, for example Sidney Powell and Michael Flynn went on to the Lou Dobbs show on Fox News and said that a secret government supercomputer, you may have heard this, Thomas.

Thomas:         Huh.

Andrew:         Switched votes from Trump to Biden in the election.

Thomas:         Oh, yeah.

Andrew:         And Lou Dobbs-

Thomas:         [Laughing] Supercomputer!

Andrew:         I’m not kidding, I swear to god this is what they are arguing.

Thomas:         We got Sam Jackson from Jurassic Park being like “access main program.”

Andrew:         [Laughs] Right!

Thomas:         “Access main voting – switch votes.”

Andrew:         They’re using that UNIX graphical interface that moves at like one pixel per minute, yeah.

Thomas:         [Laughs]

Andrew:         Krebs issued a press release and said that claim is nonsense, that is a hoax.  Then just two days ago as of this recording, November 17th, Krebs said (quote), in a Tweet, “59 election security experts all agree in every case in which we are aware, these claims of fraud have either been unsubstantiated or are technically incoherent.” (End of quote).  That led Donald Trump to fire Krebs over Twitter. 

Trump said [Impersonation] “The recent statement by Chris Krebs on the security of the 2020 election was highly inaccurate in that there were massive improprieties and fraud,” which tells you, by the way, that Trump did not write that tweet.

Thomas:         Yeah.

Andrew:         It added, [Impersonation] “Dead people voting, poll watchers not allowed into polling locations, glitches in the voting machines which changed votes from Trump to Biden, late voting and many more.”  That’s nonsense, and a bunch of Republican Senators followed the Susan Collins path of being extremely concerned about this-

Thomas:         Mm-hmm.

Andrew:         But, you know, not doing anything.  Look, this was a terrible thing to do.  All of that is to say if Krebs had ascended to the position of Acting Director of Homeland Security, again, Republican appointed by Trump, probably not a show listener, but not a Sidney Powell, Michael Flynn, sycophant level Kool-Aid drinker.  But he did not so ascent, [Laughing] because the Trump administration apparently – we knew they couldn’t add past 210.

Thomas:         [Laughs]

Andrew:         Apparently they can’t read, either! 

Thomas:         Yeah.

Andrew:         They followed the appendix – you know, the thing that was stapled on that Nielsen said “if I’m hit by a truck and in a coma and can’t carry out my duties you can follow this appendix.”  Rather than the plain language, which was “if I resign,” which she did, you follow the succession order in the Executive Order.  That’s super duper clear, and this is now 3 for 3 in courts saying that Chad Wolf, not properly authorized to be Acting Director of Homeland Security.  The beautiful part about this is because they switched their argument to the Homeland Security Act, now everything he’s ever done is void ab initio!

Thomas:         Ooh! 

Andrew:         Not just the stuff after 210 days.  We’re gonna be disentangling this in litigation for years, but this is an area where, you know, we’ve talked about the potential stalemate and whether we are going to need the Senate to engage in the Congressional Review Act and very quickly get rid of the late rulemaking that’s been done by Trump executive agencies and many more of that is coming in the lame duck.  They are gonna crank out horrible stuff on their way out.  It’s gonna be a challenge to overturn some of that.  The Homeland Security stuff we have multiple avenues to make that go away.

Thomas:         I know this is probably a big question, but do you have a sense of how much of this damage is already done?  Was this enjoined early on so people weren’t maybe booted out of the country who shouldn’t have been?  Do you have any sense of that?

Andrew:         I do and you’ve undercut my Optimist Prime a little bit here.

Thomas:         Ah.  Well that’s what I’m here for, isn’t it. 

Andrew:         That is fine.  This case, for example, certified a class of DACA enrollees that challenged, that brought a request for injunctive relief and the right to sue the government to allow them to participate in the program.  They won on summary judgment, they won on their motion for class certification, and it is now proceeding to trial to award the plaintiffs the relief to which they are entitled.  This is something that, if the Trump administration does not settle this within the next couple of months, obviously the Biden administration will come in and will succeed to the shoes and will engage in a settlement with these plaintiffs that presumably gives them all of the relief to which they are entitled. 

I know – the downside of the Optimist Prime is it leaves Dreamers.  It leaves people who are outside of legal status through no fault of their own, and we have talked about DACA enrollees at great length on this show, check the archives, it leaves them in the shadows for a couple of months which is bad, but there’s a light at the end of the tunnel.

Good result, and again, Chad Wolf has done a whole lot of horrible stuff-

Thomas:         Mm-hmm.

Andrew:         -and this paves the way to judicially undo with the stroke of a pen, invoking the one spell, “void ab initio!”

Thomas:         [Laughs]

Andrew:         To make it go away.

Thomas:         Well, hey, great job nailing this one Andrew. 

Andrew Was Right – Mizelle Judicial Appointment


You know, Andrew doesn’t get enough pats on the back in my opinion, so I’ll also do that.  You were right.  There’s more though!  Your back’s gonna be sore from all the patting.  What else did you get right?

Andrew:         [Laughs] Well this one I wish I hadn’t gotten right.  You might recall Opening Arguments episode 420 when we discussed 33-year-old Katheryn Kimball Mizelle, rated not qualified by the American Bar Association.  Not that there was some, because remember there are three categories.  There’s “well qualified,” that’s what you need to serve on the court.  There is “qualified,” which typically means yeah, come back; withdraw this nomination and come back later.  Then there is “you shouldn’t be allowed in the building.”

Thomas:         [Laughs]

Andrew:         Which is what she got. 

Thomas:         Yeah, how did you get in here?  Call security. 

Andrew:         This is somebody who was an associate at Jones Day, had been there for 10 months-

Thomas:         Wow.

Andrew:         -at the time that she was about to be elevated to the Federal Bench for life.  Had only been admitted to the bar for 8 years.  But again, the first 7 of those years were spent not doing law stuff!

Thomas:         Backpacking or something?  Finding herself?

Andrew:         Yeah.  (Quote) “Since her admission to the Bar, Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel.  Of her four distinguished federal clerkships, one clerkship was in the trial court, that year plus her 10 months at a reputable law firm and approximately three years in government practice, translates to five years of experience in the trial courts.”  That is saying alright, we’re gonna give you credit for-

Thomas:         That sounds generous.

Andrew:         Every single thing you put on the resume, and then “The ABA,” this is what passes for humor at the ABA, says-

Thomas:         [Laughs] Here goes.

Andrew:         “This represents a rather marked departure from the 12-year minimum that we expect from judicial nominees.”

Thomas:         [Sarcastically] Wow, way to lay the smackdown.

Andrew:         I understand, that’s not exactly a thigh-slapper.

Thomas:         Hero.

Andrew:         No, she’s preposterously unqualified.  You alluded to this at the start, this is why it is crucial that we retake the Senate because absent retaking the Senate Mitch McConnell will do to Joe Biden what he did to Barack Obama, place a 100% hold on federal judges.  Now I have, if we lose these elections, I have a hardball plan that I will get out to Joe Biden, I’m 100% serious about this.

Thomas:         Oooh! 

Andrew:         I don’t wanna have to use that plan. 

Thomas:         Don’t make him use it, everybody!

Andrew:         Don’t make me break glass, I’ll break glass, it would be better to just appoint them in the normal course.  Let me go very, very quickly over the numbers.  Donald Trump has appointed three Supreme Court justices, 53 Court of Appeals justices with a 54th due any day now, and a 55th likely by the end of the end of the lame duck-

Thomas:         Wait, how’re they doing that when they should be working on – I assume they’re working on COVID response, stimulus, bailing out ordinary citizens who need help.  How’re they finding the time, Andrew?  By doing none of that?

Andrew:         Spoiler for next week, if we don’t pass continuing resolutions by December 12th the government will shut down in two weeks.  Keep that one in mind.  In addition to the 54 Courts of Appeal judges, 168 District Court judges and counting.  There are 27 that are still in the pipeline that are pending before the Senate Judiciary Committee.  That is the potential of 195 out of that.  That compares to Obama and Bush, 2 Supreme Court justices, 55 and 62 appellate court, courts of appeals, and 261 and 268.  In other words, in 4 years Donald Trump has appointed more Supreme Court justices than our last two term Presidents.  The same number of judges to the U.S. Courts of Appeal, and 75%, roughly three quarters of the number of District Court judges.

That means this, the federal judiciary, is Donald Trump’s judiciary and it will stay that way if the Democrats don’t retake the Senate.  That’s crucial.

Thomas:         Oh my god, everybody tune into the live stream.

Andrew:         Yeah.  I was right about that, but uh, I’ve tried to hide this with a happy sandwich.

Thomas:         [Sighs] Okay.

Andrew:         I would say that’s the end of Kathryn Kimball Mizelle, that’s not the end.  She’s 33!  She’s gonna be on the court until long after I’m dead, so that’s fantastic.  Maybe she’ll be qualified to serve on the court by then.

Thomas:         [Sighs] Can we – yeah.  Part of the judicial act of-

Andrew:         Judiciary Act of 2021, maybe, which is now gonna have to be the Judiciary Act of 2023 I’m sad to say.

Thomas:         In that we need to come up with like a kid court to put all these horribly unqualified Trump appointees in.  You know, they’re appointed for life so we can’t get rid of them, can we create a Circuit that’s like “oh yeah, your job is to decide totally stupid nonsense cases involving, I dunno, stuff that’s not real.”  It’s like the McDonald’s Play Place of Circuits.

Andrew:         [Laughs]

Thomas:         Then we put all the unqualified ones in that Circuit.

Andrew:         It would be a little harder than that, but the easiest path is just double the size of the federal judiciary and then you reduce the odds of drawing one of these nitwits.

Thomas:         Ah, man.

Andrew:         Maybe we can induce them to get the hell off the court.  Maybe reduce some judicial salaries?  I would be behind that.  Wait for them to cash in in the private sector and resign from the bench, I dunno.

Thomas:         We’re so screwed.

Andrew:         Being a judge is super fun.

Thomas:         Yeah, I bet.  Especially when you get appointed not knowing anything.

Andrew:         Yeah.

Thomas:         Just do whatever, just decide whatever. 

Andrew Was Right – Trump for President, Inc. v. Northland Television d/b/a WJFW-NBC


Alright well now that I’m suitably depressed why don’t you cheer us up with our last Andrew Was Right?

Andrew:         This comes way back in Opening Arguments episode 379 in which I was outraged – I was just as outraged reading about this all over again.  This was the Trump campaign enlisted a prominent Midwest law firm, Husch Blackwell, to sue a tiny Wisconsin TV station for airing an ad created by Priorities USA.  You might recall, that ad was clips of Donald Trump-

Thomas:         Oh yeah.

Andrew:         -saying “the coronavirus, this is their new hoax.”

Thomas:         Right, right. 

Andrew:         Over a map of coronavirus cases, a graph of coronavirus cases.  Trump said “that’s defamation because while I said ‘this is their new hoax,’ I mean that the hoax was the Democrats politicizing the coronavirus,” you know, some – and look, PolitiFact said that that was deceptive.  Not pants on fire, but deceptive.  Spoiler alert, the First Amendment means you can air deceptive political ads.  [Laughs]

Thomas:         Yeah.

Andrew:         If you were prohibited from airing ads that PolitiFact didn’t like, this would be a very, very different country.

Thomas:         Probably be good, but that’s not the world we live in.

Andrew:         Yeah.  But Donald Trump wouldn’t have been able to air a single ad this cycle.  There was nothing he said or any of his surrogates said that was not rated as at least deceptive or worse by PolitiFact.  That was the ad, and again remember this was a blatant attempt to silence a TV station.  They didn’t sue Priorities USA, the Democratic leaning SuperPAC that created it, they sued the TV station.  I told you that lawsuit was nonsense, was going nowhere, and a couple of days ago after the election Trump’s lawyer came in and said “okay, we’re gonna move voluntarily to dismiss this case.”

Priorities USA moved to intervene in that case, they took over the heavy lifting so that the TV station wasn’t bankrupted from Donald Trump’s idiotic legal strategies.  Guy Cecil said “Priorities stood strong against the Trump campaign’s onslaught of baseless legal actions and we have successfully rebuffed Donald Trump’s effort to censor the truth about his failed leadership.”  That lawsuit’s gone and that shows you these guys never intended – because look, if I defamed you, if it really was defamation that case continues whether you’re present in it or not.

Thomas:         Mm-hmm.

Andrew:         When you sue somebody for defamation you say “you said bad stuff about me and I have damages and I’m going to make you pay me damages.”  Never a chance in hell that this TV station was gonna have to pay Donald Trump damages for defamation, this was solely designed to try to intimidate them into not running attack ads.

Thomas:         Right.

Andrew:         It was disgraceful that Husch Blackwell agreed to represent Trump in this.  I told you that was going nowhere, and it went nowhere.

Thomas:         Everyone leave Husch Blackwell a bad Yelp review.

Andrew:         Yeah.

Thomas:         Wait is that – am I a tortfeasor now?

Andrew:         [Laughs]

Thomas:         Are we allowed to say that?  Tortious interference.

Andrew:         If you have engaged with Husch Blackwell in any way then yes, you should appropriately-

Thomas:         Give your honest opinion on their Yelp.

Andrew:         Exactly right.

Thomas:         Okay. [Laughs] To the amount of time I tortfease and then Andrew has to untortfease, it’s a lot.  I’m so glad I have the vocabulary for it now.

Andrew:         [Laughs] I love that this is gonna be your new most common word.

Thomas:         I can’t believe you waited four-hundred-and-something – 39 episodes-

Andrew:         I’m sorry.

Thomas:         -to tell me “tortfeasor.”  [Laughing] It’s the best!

Andrew:         [Laughs]

Election Update – State Vote Certification

[26:46.7] [Segment Intro]

Thomas:         Everybody take out your planners and we’re gonna do some calendar work here and figure out when everything is official and when we can maybe finally release our blood pressure and our backs, our shoulders, everything’s tense.  Give me the breakdown here.

Andrew:         Yeah, this is the latest concern that people on the left have regarding Donald Trump’s ability or effort to steal the election, and I wanna say this.  I get it.  We’ve had a radically lawless administration that is desperately trying to cling to power.  I understand why people are concerned, but I wanna tell you, like we’ve been saying consistently since the election, these are the idiots that could not manage to book The Four Seasons in Philadelphia.

Thomas:         [Laughs]

Andrew:         Their efforts to steal the election, in this case by having states not certify enough – those are also transparently stupid and are going to fail.  They’re going to fail in large part from what we told you on Friday’s show.  So far, they only have a lawsuit that’s viable in one state, that’s Pennsylvania, and Pennsylvania’s certification date at the time you hear this show will have been yesterday.  Fingers crossed that Pennsylvania will have certified its statewide electors for Joe Biden as of the time that you hear this show. 

Their statute does provide for a delay of a couple of days so it might still be up in the air.  Same thing in Michigan, November 23rd was the deadline.  Possible Michigan will have certified its electors by the time you hear this but if not, it’s coming in a couple of days.  If there is a delay, we’ll cover it and tell you what’s going on, but I wanted to give you a sense of the clock that folks are up against. 

That clock is – you can count backwards.  The meeting of the electors is fixed by law on December 14th, 2020.  That’s when they well actually – electors in every state will cast their ballots and those ballots are the things that determine the presidency.  A copy goes to the President of the United States Senate, Vice President Mike Pence, for official counting, but other copies go to the states Secretary of State, the National Archives, and to the presiding judge in the district where the electors meet.  All of that is so that the only copy doesn’t go to Mike Pence, right?

Thomas:         [Laughs]

Andrew:         So that he doesn’t do the “Mr. Simpson, this verdict is written on a cocktail napkin.”

Thomas:         Yeah.

Andrew:         “And it still says guilty, and you misspelled guilty.”  That meeting is December 14th.  After that time there is literally nothing that can be done.

Thomas:         Hmm.

Andrew:         Everybody will be able to exhale on December 14.  But we can actually move the time back for a number of these.  3 U.S.C. § 5 provides a safe harbor provision that specifies, among other things, that if states want to make sure that their electoral votes count, they have to conclude all of their recounts and all of their other actions that could potentially affect the outcome, 6 days before the electors meet.  That’s December 8.  Now we’ve got, that’s two weeks from today, that’s when the safe harbor deadline kicks in.

Then prior to that each state, as we alluded to at the beginning of this segment, has its own deadlines affixed by state law for when the state will certify the results of the election.  For Pennsylvania and Michigan that was yesterday, Monday, November 23rd, for Arizona it’s next Monday, November 30th.  Again, a couple of days of wiggle room.  I’m gonna put a link in the show notes that shows all of the states, all of their respective deadlines.  Those deadlines are rolling as we go on. 

As it turns out, almost all of the states – you might’ve seen this, there’s another sort of alarmist thing going around – that as of the end of last week when we were recording this show Donald Trump led in the number of certified presidential electors, which is true because the states with deadlines of November 17th or earlier are Florida, Mississippi, South Carolina, Wyoming, Louisiana, Oklahoma, South Dakota, and Vermont.  Well, those are all states Biden lost, so not a surprise that of the states that had early deadlines the fact that they were Trump states means that Trump has more pledged – Trump has more certified votes.

Thomas:         Right, but you gotta get to 270.  It doesn’t matter if you’re ahead, even if somehow they try to call it now.

Andrew:         Yeah, that’s right.  It’s like watching the returns in Pennsylvania and us telling you these are all the returns from the rural counties coming in.  Don’t read anything into that.  By the time this show will have aired we will have had the results in Massachusetts come in, in Georgia which came in on Friday, November 20th, in Michigan, in Maine, in the next couple of days we will get the results from Minnesota, from D.C.  Like I said, next week, beginning on November 30th is when Arizona comes in.  Tuesday December 1st is Wisconsin.  These deadlines are coming up, they’re coming up quickly and they will foreclose on the kind of shenanigans- again, if there is no pending lawsuit – Donald Trump can’t just go [Laughs] and tell a state “don’t certify.”  He’s got to have some kind of judicial relief and he’s not even asking for judicial relief in Georgia or Arizona or Nevada.  So … chill.  [Laughs]

The last thing I wanted to talk about with respect to certification is a question you’ve raised and bunch of other people have raised, the faithless electors question.

Thomas:         Yeah, yeah.  I mean, I’m not worried about it right now but if it were 270-268, I would be actually quite worried, because we had – weren’t there some faithless electors in 2016?

Andrew:         There were.  I have to tell you, if for some reason it was 270 to 268, that is Pennsylvania and Michigan, I don’t know what you do.  You use a mind control ray-

Thomas:         [Laughs]

Andrew:         -to force those states to-

Thomas:         Maybe!  I don’t know, maybe it’ll happen!

Andrew:         Maybe.

Thomas:         We’re really worried, Andrew! [Laughs]

Andrew:         Alright, so let’s assume that.  Pennsylvania and Wisconsin mind control ray, they give all of their electors to Donald Trump, it is 270 to 268.  I don’t wanna tell you there’s no cause for alarm there.  That would be cause for alarm because apparently Donald Trump has a mind control ray.  But we still have, assuming he can’t get that out to anywhere else in the country, let’s say it’s a fixed mind [Laughing] it only works in the states of Wisconsin – in the states of Michigan and Pennsylvania.  It still would be a minor cause for alarm and here’s why.  There are really sort of three things in place.

The first is electors are almost always party hacks.  The constitution does not specify who gets to be an elector.  That’s left up to each state.  Almost all of the states, the process, is that the state has a nominating convention or a party committee so the Democratic party in Wisconsin gets to pick the slate of Biden electors.  You’ve then asked, “but didn’t we have a whole bunch of faithless electors in 2016?”

Thomas:         Eh, I didn’t say “a whole bunch,” but I thought we had one or two.

Andrew:         We actually had seven.

Thomas:         Wow.

Andrew:         Which is the most in decades. 

Thomas:         Jeez. 

Andrew:         But two things about those seven faithless electors:  The first is remember, all of the Democratic faithless electors were orchestrated by our buddy Lawrence Lessig, that we had on the show to talk about-

Thomas:         Oh.

Andrew:         -his plan to convince Democrats to then swap with Republicans, to eliminate 37 electoral votes from Donald Trump, to throw the election to the House of Representatives where the House would elect John Kasich.

Thomas:         Because we didn’t control the House in 2016, in case anybody doesn’t remember.

Andrew:         Well and because the way the House votes for the President in the event that there is not a majority-

Thomas:         Oh, it’s the state delegation thingy?

Andrew:         Is each delegation gets one vote, yes.  So not only did we not control the House of Representatives, but we did not control a majority of State-

Thomas:         So, the idea wasn’t “steal the election for Hillary,” it was okay, you know, we get it, but can we please have John Kasich instead of this disaster?  And by the way, who knows how many hundreds of thousands of lives that might have saved, so…

Andrew:         Yeah.

Thomas:         Good effort.

Andrew:         Of those seven electors there were three Democrats in Washington that cast their vote for Colin Powell, one in Washington State who cast their vote for Faith Spotted Eagle, and one Democratic elector in Hawaii who voted for Bernie Sanders.  Again, it doesn’t really matter who you vote for.

Thomas:         Yeah.

Andrew:         It matters that you’ve taken them away from Hillary.  Then Lessig was able to get one Republican in Texas to vote for John Kasich and another one to vote for Ron Paul.  That happened, seven is obviously way less than 37, and even more important development happened since then, which is that in 2020 the Supreme Court ruled in that case, the Baca decision, which says that state laws that prohibit faithless electors are valid under the constitution. 

We had Lawrence Lessig on our show to discuss and we came to the conclusion of what we want is we want for the rules to be clear.  Either electors can vote their conscience-

Thomas:         Yeah.

Andrew:         -or states can prohibit them.  Well, in June the Supreme Court said states can prohibit them and a majority of the states have laws prohibiting faithless electors, including Arizona, Nevada, Wisconsin, and Michigan.

Thomas:         Hmm.  Well, okay, it doesn’t give me much – I know this isn’t gonna matter, but I would still be worried if it was close because the Supreme Court could just be like “oh, well we’re over turning that just like all the other good precedent we don’t care about.”  Am I wrong, Andrew?  Am I wrong?!

Andrew:         [Laughs] Like I said at the start of the segment, I would not say anybody is wrong to be nervous.  We have a singularly lawless administration that has done things that I have not anticipated and I want to remain – I’m not trying to say “you’re wrong to be anxious about what the Trump administration is going to try and do.”  I do wanna say, these are very, very low probability outcomes.

Thomas:         Mm-hmm.

Andrew:         You should be much more scared of what kind of terrible things are they going to do in the lame duck.  Are they going to shut down the government, are they gonna cram through more Justin’s and Corey’s?  The answer to that one is yes.  There’s lots of terrible stuff that the Trump administration is gonna do, I mean I’ve just outlined the path with an awful lot of institutional protections that suggest they’re not gonna steal the election.  I know it, I know it’s concerning.  I know nobody is fully gonna exhale until January 20th, but I think I’ve given you some touch points of-

Thomas:         You really have.  I do feel better.  You know, I’m not saying I’m still just as nervous as I was on election night [Laughs] or anything, you have done a great deal to ease my worrying, so I appreciate it.

Andrew:         I’m glad to hear that.  Look, I want to draw the contrast to Bush v. Gore in 2000.  One of the things that I think was the most important – look, I was on the other side.  [Laughs] I was on the losing side in Bush v. Gore in 2000; there was a sensible narrative.

Thomas:         Yeah.

Andrew:         The sensible narrative, and let’s just be 100% clear about this, on November 26th, 2000, Florida’s Republican Secretary of State certified to its Republican governor, who happened to be George W. Bush’s brother, Jeb Bush (a dude I saw getting drunk in the airport in Kentucky)-

Thomas:         Let he who is without sin cast the first whiskey stone, Andrew.

Andrew:         True.  Florida had certified that its electors were going to George W. Bush.  The Gore campaign was challenging that certification and had won at the Florida Supreme Court, the right to conduct recounts in three counties.  It wasn’t as though – again if you’re going back to the scales – it wasn’t as though Al Gore’s odds of becoming President were zero.

Thomas:         Yeah. 

Andrew:         But nevertheless, at that point in time there were narratives – and this is all I’m really trying to say.  In 2000 if you supported Bush there was a narrative backed up by facts as to why George Bush should be the next President.  If you supported Al Gore there was a narrative, backed up by facts, as to why Al Gore should be the next President.  That narrative was yeah, Florida certified these votes but-

Thomas:         Clearly these elderly people meant to vote for Gore and not – who was the other guy?

Andrew:         Pat Buchanan. 

Thomas:         Yeah, Pat Buchanan.

Andrew:         Especially in predominantly Jewish areas, the idea that they were voting for noted anti-Semite Pat Buchanan, seemed unlikely.

Thomas:         [Sighs] Gosh. 

Andrew:         It was a strong inference.  Yeah, look, we knew it was just a binary question.  If the court says – if the Supreme Court had said “yup, we’re gonna allow the recount to go forward,” that would mean that the initial certification was in error and it would be replaced with a new certification certifying that Al Gore had won the state, and if the Supreme Court, as it did, said “no, we’re too close to the deadline and the old certification is just gonna stand, sorry about that.”  Which Bush v. Gore said.

Thomas:         Yeah.

Andrew:         Except it was not sorry.

Thomas:         Yeah, Bush v. Gore was like “it’s just so much trouble, you know?”

Andrew:         Yeah.

Thomas:         Ack, ugh, the effort involved.

Andrew:         Look, you can listen to the first four episodes-

Thomas:         Yeah yeah yeah.

Andrew:         You listened to me do four hours of this. 

Thomas:         You don’t have to give a deep dive on every joke I make, Andrew, it’s okay!

Andrew:         No no no no no, but what I wanna say is to take the Bush v. Gore side, and again, remember, the person I think is arguably the most talented lawyer in the world, Ted Olson, was the person who argued the Bush side of Bush v. Gore.

Thomas:         Huh.

Andrew:         The difference between Bush v. Gore and Trump v. The Universe is that there were non-trivial arguments being made on the Bush side.

Thomas:         Right.  Well and, by the way, it wouldn’t have been so tense if it actually was like “well also Bush is leading by 30 whatever votes in other states,” you know?  That he won by tens of thousands of votes.

Andrew:         Yeah.

Thomas:         Like, you know, this was a very close election, came down to 500 votes or whatever.

Andrew:         Yeah, and the current situation, Trump v. The World, is not.  You cannot craft a narrative that explains how Donald Trump wins the election unless you’re a crazy person.

Thomas:         [Laughs]

Andrew:         Yeah, there are way too many crazy people in this country, but we’ve done the polling.  The number of crazy people is 20%, it’s not 40, it’s not 45, it’s not 48.  At that level I think you need the support of a larger plurality than just bonkers, bananas in pajamas, level crazy people to pull off a heist like this.  I do not wanna say there is not an alternative universe.  If the election had gone – if it was 270 to 268 coming out of election night, we would be an alarmist podcast. 

Thomas:         Yeah.  God.

Andrew:         The idea that they could find one electoral vote to switch, why wouldn’t Trump-

Thomas:         I think I would be in the hospital if that’s what had happened.

Andrew:         [Laughs] I think that’s right!

Thomas:         I wouldn’t have been able to handle all of the anxiety of it.

Andrew:         Yeah.

Thomas:         I’d be like just – Doctor put me in coma until this is all over.

Andrew:         All you have to do, then, is if you’re Donald Trump you go to the elector from Oklahoma-

Thomas:         Yeah.  Or Nebraska?

Andrew:         And you’re like “alright, here’s $50 million dollars.”  You know, there’s a ton of scenarios under which you can steal one electoral vote.

Thomas:         Yeah.

Andrew:         Stealing 37 is going to be impossible.

Thomas:         Yeah, if Lawrence Lessig couldn’t do it, I don’t think that Rudy Giuliani is gonna [Laughing] pull it off! 

Andrew:         There you go, I could not have ended this segment any better than that.

[47:04.0] [Patron Shout Outs]

T3BE Answer

[57:36.4] [Segment Intro]

Thomas:         And now it’s time for T3BE, answer time.  Whoo, another tough one that I don’t feel confident in, let’s see if I lucked into the right answer.  [Chuckles]

Andrew:         [Laughs] Alright, this was police had probable cause to arrest a man for a series of armed robberies, they got a warrant, an arrest warrant.  Then snuck into his house at 6 in the morning with [Laughing] guns drawn, went into his bedroom, woke him up, then when he said “Woah, what’s going on?” the officer replied, “we got you now!”  Then immediately said “hey, didn’t you rob so and so?” and the man said “yes.”  Then the police said “okay, well you’re under arrest for that robbery.

Thomas:         Mm-hmm.

Andrew:         Then the man moved to suppress the use of his statement as evidence.  The question is, what’s his best argument?  You immediately eliminated, right off the bat, C and D.  C, he was not informed that he was under arrest until after he made the statement.  Good elimination.

Thomas:         Okay.

Andrew:         There is no requirement that a defendant be informed of an arrest or a warrant.  What is required is that a person in custody has certain rights pursuant to that interrogation. 

You also eliminated D; the police didn’t have a search warrant authorizing entry into the house.  Good elimination.

Thomas:         Woo!

Andrew:         An arrest warrant – if you can arrest somebody in their house then you can enter the house.  You don’t need a separate search warrant to go arrest somebody.

Thomas:         Alright, so far so good, Thomas’ Second Chance-

Andrew:         Thomas’ Second Chance is active.  Between A, the police did not give him his required Miranda warnings, or B, the statement was not voluntary, you went with B.  And the answer is A.

Thomas:         Augh!

Andrew:         Yeah.

Thomas:         Oh, I should’ve just gone with it.

Andrew:         Yup.

Thomas:         It was the obvious answer.

Andrew:         Yup, it’s the obvious answer, it is also the fact pattern of a case – I didn’t know, this is not-

Thomas:         Oh, it’s one Andrew Seidel worked on?

Andrew:         [Laughs] Yeah, we had Andrew Seidel on and he’s like “well this is the fact pattern of a case that I argued before the Supreme Court.”  This is not a case that I would say is a common crim-pro case.

Thomas:         Gosh.

Andrew:         But it’s called Orozco v. Texas, 1969.  I wanna say this: voluntariness is a valid argument.  That’s why the question had to be written as “what’s the best argument.”

Thomas:         Yeah, yeah, I know.  So here was my reasoning, you tell me what’s wrong here.  I’m not – ‘cuz I know that you can, if you’re a police officer, you can just chat up a guy on the street and be like “hey, how’s it going, no I just wanna talk,” and they’re not under arrest and you don’t have to be read your Miranda rights, so I was thinking that that’s what the confession was, but I thought there’d be a good argument that, like, “look, if I wake up and some people are pointing guns at me and demanding did you commit a robbery” or whatever that that would not exactly be a voluntary statement because he wasn’t under arrest.  But is it that he was technically under arrest before that or something?  What’s the answer?

Andrew:         You’ve analyzed this exactly perfectly, it’s just that it goes the other way.

Thomas:         [Sighs] That’s a very [Laughs] polite way of saying that I’m completely wrong, but yeah.

Andrew:         No no no no no, look, here’s the way it breaks down.

Thomas:         Perfect analysis if the facts were that way!

Andrew:         [Laughs]

Thomas:         But since they’re not! [Laughs]

Andrew:         Here’s the way it breaks down:  Your Miranda rights attach, and the police have to advise you of those, when you are “in custody.”

Thomas:         Right.  And he said “we’ve got you now!”  Is that the key?

Andrew:         It’s the totality of the circumstances.

Thomas:         Okay.

Andrew:         “We’ve got you now,” they’re in the house, it’s 6 am and their guns are pointed at you. 

Thomas:         Could he have just been like “am I free to go?”  [Laughs]

Andrew:         Yeah!  No, I was gonna say, this is the origin of, and corruption – it’s why I would never tell you to ask “am I being detained?”  But it’s where sovereign citizens came up with that idea from.

Thomas:         Yeah.

Andrew:         Because if you are in non-custodial, if you are in a non-custodial interview-

Thomas:         Mm-hmm.

Andrew:         That means you’re free to go, and if it’s non-custodial then no Miranda warnings attach and the cops can lie to you and lean on you and go up to the edge and everything else and make you feel like, you know, you probably can’t leave-

Thomas:         Mm-hmm.

Andrew:         But this is where the sort of “one weird trick” comes in.  While they can lie to you about being an undercover cop, if you’re in a non-custodial interview and you say “alright, that’s it, I’m leaving now,” they have to let you go.

Thomas:         Right.

Andrew:         The moment they don’t let you go is the moment it becomes a custodial interview.  As you might imagine there are a ton – a custodial detainment.  There are a ton of cases which are “alright, where do we draw that line?” 

Thomas:         Yeah.

Andrew:         When the cops say “well, yeah, you get up walk towards that door but I gotta tell you, you walk towards that door we’re gonna do X.”  Well, that’s fine.  No matter how oppressive that sounds, no matter how much they say “yeah, you’re free to leave but if you do, we’re gonna arrest your wife and your kids and your dog.”  Well?  You were free to go.  It’s non-custodial, therefore no Miranda rights attach.  But the moment where you go to get up and they slap handcuffs on you, now it is custodial and your Miranda rights attach.

This case, while they didn’t slap the handcuffs, they pointed a gun, they’re surrounding his bed, it’s 6 in the morning, they say “we’ve got you now.”

Thomas:         [Laughs]

Andrew:         That is very, very likely, and in fact under those identical facts the Supreme Court said “that’s custodial.”  Therefore, it’s a clearer argument than an argument on voluntariness.  Again, remember that “voluntariness” is drawn incredibly narrowly because every confession on some level is – well, if the cops didn’t have me here, I wouldn’t have signed this confession, you know?

Thomas:         Mm-hmm.

Andrew:         [Laughs] Unless you have “Liar Liar” disease, it’s always coerced on some level and so you can imagine there’s lots of litigation on that as well and the standard for voluntariness is basically – there are cases like this where the police will write a confession and you’re not a native English speaker and they mislead you into what the contents of that confession is, stuff like that.  You narrowed it down to the right two things, you analyzed it the right way, but-

Thomas:         It was just that technically he’s already under arrest.  It’s already in custody, therefore-

Andrew:         He’s in custody.  It’s not that he’s under arrest.

Thomas:         Gotcha.

Andrew:         But it is that he is in police custody.

Thomas:         So, Miranda rights start when you’re in custody

Andrew:         Yeah, exactly right.

Thomas:         Okay.  What’s the difference between custody and arrest?  Is there a difference there?

Andrew:         Yeah.  The difference is that when you “arrested” you are informed – again this is a basic constitutional right – you are informed of what the charges against you are. 

Thomas:         Oh.

Andrew:         But the Miranda rights attach even if they haven’t specified-

Thomas:         Ooooh, interesting.

Andrew:         -a particular charge.

Thomas:         So, wait, I’ve got a question.  When they take someone into custody, ‘cuz you can – can’t they take someone into custody to talk to them who, they’re not like entirely sure they’re gonna charge or whatever?  Can they make you talk to them?  I guess the question I’m trying to ask, I’m just curious is, is there a situation where you might not be charged with a crime but you have Miranda rights because they take you into custody to question you?

Andrew:         That is correct, yes.

Thomas:         Okay, oh that’s interesting.  I’ve never thought about that.

Andrew:         Yup.  Whenever there is a custodial, the official term from Miranda v. Arizona, is a “custodial interrogation.”

Thomas:         Hmm.  That’s the part – I feel like you don’t see that in the shows ever.

Andrew:         Yeah.

Thomas:         It’s only when “we got the guy!  You’re under arrest!  You have the right to remain silent, you have the right to blah blah blah.”  It’s never like hey, we wanna talk to you.  Do they read the Miranda rights when they wanna talk to them like that?

Andrew:         Yeah.

Thomas:         Oh.

Andrew:         Because-

Thomas:         You don’t see that on TV.  Somebody show that on TV.

Andrew:         I agree that we should do that.

Thomas:         Okay.

Andrew:         Because, again, think about it.  The primary thing that you want to protect, you want to advise someone of, is their right against self-incrimination.  If they think – think about this in the police dynamic and also the individual criminal defendant dynamic:  They have you in custody as a potential witness against, you know, organized crime.  They raid the gentleman’s social club-

Thomas:         So, for example you saw Hugo Chavez change those votes.

Andrew:         [Laughs]

Thomas:         And they’re like “gotcha.”  Okay, so in that situation?

Andrew:         Yeah.  What you want to advise our potential witness here is the cops obviously have a much stronger case of getting you to flip on the ghost of Hugo Chavez-

Thomas:         [Laughs]

Andrew:         -if they could also convict you of a crime.  They’ll say “look, we’ve got you dead to rights for money laundering.”

Thomas:         Yeah.

Andrew:         But “we’ll drop the money laundering charge if you testify against the ghost of Hugo Chavez,” and you say alright, that’s fine, but the only reason they have you for money laundering is because they broke in with guns drawn, they point them at you, they say “we got you now,” and you say “I didn’t change the votes, all I did was hide the money!”

Thomas:         [Laughs] The ghost made me do it!

Andrew:         Yeah.  What they have to do is they have to tell you, “hey, you have a right against self-incrimination so you have the right to shut the hell up.”

Thomas:         Yeah.

Andrew:         And you have the right to have a lawyer here who will tell you to shut the hell up.

Thomas:         Well I wanna do a breakdown on ghost law, but we’re out of time.

Andrew:         Alright, well next time.

Thomas:         So, there’s another time to talk ghost law.  In the meantime, we’ve gotta play the shame music.

[T3BE Defeat]

Thomas:         I’m on a bad streak, but you know?  They were close, I just, yeah, went with the wrong one twice in a row, I think.  Alright, Andrew, who is our brilliant lawyer or … just listener, who got this one correct?

Andrew:         Well Thomas, this week’s winner is Richard Clark on Twitter who writes “A, the police did not give the required Miranda warnings.  Because they had an arrest warrant, he was not free to leave.  This is not 21 Jump Street; Miranda rights have to be given during custodial interviews.”

Well, fantastic 21 Jump Street Johnny Depp reference there and you are correct on the law Mr. Clark.  Everyone give him a follow, that is @WTPClark on Twitter and congratulations, Richard, on being this week’s winner.

Thomas:         Thanks so much for listening everybody, we’ll see you for a Rapid Response Friday – well, jeez, a rapid response Black Friday and then the live stream.

Andrew:         Yeah, it’s gonna be great!  More OA than you can handle.

Thomas:         Please do not travel for Thanksgiving, please don’t.  I know it’s hard, we’re not.  We’re not seeing our family.  The pandemic is like three times worse than it worse when we were all super nervous months ago.

Andrew:         [Sighs]

Thomas:         So please behave accordingly, thank you.

[Show Outro]

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