Listen to the episode and read the show notes
Topics of Discussion:
- Breaking News – Michael Flynn Pardon
- Andrew Was Right About: Everything!
- Breakin’ Down the Law: Lindsey Graham is a Criminal
- An “Andrew 60-Seconds”: E. Jean Carroll Lawsuit Update
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 442. Gobble gobble gobble!
Andrew: [Laughs]
Thomas: How’s it going, Andrew?
Andrew: It’s going fantastic, Thomas, how are you?
Thomas: Oh, great. Recording a little earlier than normal because of the holiday.
Andrew: Yeah, you know. Happy Thanksgiving, everybody.
Thomas: Maybe this’ll go out early to patrons.
Andrew: Yeah.
Thomas: We like to try to give everything – and this has always been our philosophy about holidays. Holidays – well, hopefully you’re not going and travelling and seeing anyone that you’re not in a bubble with already.
Andrew: Don’t do that, yeah.
Thomas: But our philosophy on this show for the past four or five years, whatever it’s been, is holidays are a time when you need your liberal podcast content the most! [Laughs]
Andrew: [Laughs]
Thomas: So, we don’t give you any old, you know, repeats or anything. We still do the episodes because I know that’s what I want from my podcasts, I hate when they go off for the holidays and I’m like “ah, I need this right now.” So that’s why we always come at you with new episodes.
Andrew: I’m [Laughing] really, really proud. We have done 442 episodes and we have not missed an episode.
Thomas: I think that’s true.
Andrew: You’ve been sick, I’ve been sick, we’ve had vacations, we’ve had holidays. Nor wind nor sleet nor rain, nor whatever.
Thomas: Yeah. Nor sleet is in there?
Andrew: I dunno, is that in there? It could be.
Thomas: It might be sleet nor snow? One or the other.
Andrew: Yeah.
Thomas: I think sleet’s worse than snow, actually.
Andrew: It is.
Thomas: It’s tricky when it’s kinda mixed-
Andrew: Sleet sucks.
Thomas: Yeah.
Andrew: [Laughs]
Thomas: Alright, we’ve got so much to talk about. One more plug for our Cognitive Dissonance livestream appearance, that is this Friday, 1 pm Pacific, 4 pm Eastern. Be there, be square. We need to raise those funds for the Georgia races, it’s vitally important, and also, we wanna raise the most money. But, you know, more because the Senate. [Laughs]
Andrew: And let’s not – no no no no, let’s not downplay that second part. Us raising more money than our brothers in podcasting is really, really important. I mean, Puzzle in a Thunderstorm has four different shows that they’re pulling from.
Thomas: Yeah.
Andrew: We just have you.
Thomas: Yeah.
Andrew: So show up! 1 Pacific, 4 Eastern, black Friday, you should not be leaving your house on black Friday, you should be sitting there watching amazing content. It’s gonna be a ton of fun, we’re gonna be raising money to save Western civilization which is, you know, a little better than getting a George Foreman grill. You should still get that thing online, so there you go.
Thomas: [Laughs] Alright, well due to intense lobbying from one of the members of this show we are finally gonna talk about Lindsey Graham. [Laughs] I have been wanting Andrew to do this episode for, I don’t know, a week? Two weeks?
Andrew: A week and a half, yeah! [Laughs]
Thomas: I’m so glad my pressure – lobbying does work.
Andrew: It does.
Thomas: The monied interest – no, this is not a monied interest, this is just good old-fashioned lobbying, this is the right kind of lobbying. I have an issue that’s very important to me, which is Lindsey Graham is a criminal, and I got my lawyer friend, Andrew Torrez, to do a breakdown. So finally, we get to hear about that. We also get – Andrew, is this right? I’m looking at this white board, even more Andrew Was Right?
Andrew: Yeah! I was right about pretty much everything so you should calm down! It’s all gonna be fine.
Thomas: Well-
Andrew: I’ve been right since the election; you should be good with that.
Breaking News – Michael Flynn Pardon
[4:53.4] But do we wanna talk about, it’s not on the white board.
Thomas: Yeah, breaking news.
Andrew: Yeah, ten minutes before we record, Donald Trump – because this is how he runs the free world. Donald Trump, via Tweet, pardoned Michael Flynn.
Thomas: Did he really do it via Tweet?
Andrew: Yeah.
Thomas: Is that official? How does that work? So, someone else-
Andrew: [Sighs]
Thomas: Oh, he announced it via Tweet.
Andrew: Right.
Thomas: I assume someone’s doing the paperwork?
Andrew: Yeah, there will be paperwork because the paperwork has to define what is happening.
Thomas: Mm-hmm.
Andrew: But the Tweet is, you know, “Michael Flynn has a full pardon.” This is not – the last time I saw “so and so gets a full pardon” was when Thomas and I did The Running Man for Law’d Awful Movies.
Thomas: [Laughs]
Andrew: That was one of the presents – presents. That was one of the prizes that you could win when you won the [Laughs]
Thomas: Yeah.
Andrew: In universe but not shown on screen game show called “Climbing for Dollars.” I still love that movie. If you’re not a Law’d Awful Movies subscriber, I dunno. You’re missing out on Thomas and I having an awful lot of fun. Anyway, yeah. 12 minutes ago, Donald J. Trump, via Twitter, writes “it is my great honor to announce that General Michael T. Flynn has been granted a full pardon.” And FULL PARDON is in caps.
Thomas: Mm-hmm.
Andrew: Like it’s a thing.
Thomas: Well it wouldn’t have been official if he didn’t capitalize it. [Laughs]
Andrew: [Sighs] “Congratulations to @generalflynn and his wonderful family.”
Thomas: Congratulations.
Andrew: “I know you will now have a truly fantastic Thanksgiving.” Literally everything about that is wrong.
Thomas: He’s gonna have a bad Thanksgiving? Good!
Andrew: Yeah, god I wish! No, not wrong in that way, wrong in a different way.
Thomas: Oh.
Andrew: Michael Flynn is released on his own recognizance pending a motion under Rule 48(a)-
Thomas: Oh, yeah.
Andrew: -to dismiss his case. He’s not in prison. He’s not detained in any way. He’s been at home with his family for three years. When you start thinking about “how does our country handle dangerous criminals?” They let ‘em hang out at home and have the holidays. That is the kind of dangerous criminal that wanders the criminal chanting “lock her up” when the Democratic candidate has arguably committed an inadvertent crime but, you know, when it comes to selling your own country out to Turkey yeah, you get to hang out with your friends and family.
Thomas: I also like the “congratulations.” Congratulations!
Andrew: Congrats, you won!
Thomas: You got away with crime.
Andrew: Yeah.
Thomas: Or something, I dunno what the congratulations is.
Andrew: We went through – [Laughing] we’re not gonna do this in this segment. This is the second plug for Law’d Awful Movies, and by the way Law’d Awful Movies is our bonus to patrons at the $2 dollar level and up. Every month we take a movie that involves legal questions and we break it down. We have a lot of fun, we swear, it’s great. It’s the best part of the show. There’s no doubt.
Thomas: I love it, and this recent one was almost a double-header. There was a lot of content in there.
Andrew: [Laughs]
Thomas: There were notes, there were links.
Andrew: It was the 90-minute (quote) “movie?” (question mark) called “The Plot Against the President” and Michael Flynn is the second most discussed person-
Thomas: Yeah.
Andrew: – after Devin Nunes.
Thomas: So, if you wanna know why this pardon is happening I think that movie does-
Andrew: I think that’s right.
Thomas: -reveal a lot. I think everybody wants to know, Andrew, what’s the future here? Is there any? There’s no hope for any other state-level crimes, right? This is the end; he gets away with it.
Andrew: Yeah, no, Michael Flynn’s crimes are federal crimes, they are FARA, the Foreign Agent Registration Act, with respect to, you know, lobbying for an authoritarian regime before the U.S. Government without disclosing that you were being paid by a ruthless authoritarian who is hostile to the United States. If you don’t think that’s a serious thing then you’re not listening. You’re not a show listener. That’s a serious crime.
Michael Flynn was not indicted for FARA violations, he was not indicted in connection with the Bijan Kian case. Those were all pending indictments for which, you know! A non-Bill Barr Department of Justice might have investigated and handed down indictments in 2021.
Thomas: Hmm.
Andrew: I imagine – we have not seen the documentation, I would be stunned, and in fact we’ll put out a correction on this feed if it’s anything other than, right, when Donald Trump says “full pardon,” that pardon is going to say “for any and all crimes in existence as of my signature on this document.”
Thomas: [Sighs] How is that even allowed? That sucks. That’s a broad power.
Andrew: I wanna say this as plainly as possible. My son is 18 years old. There are people listening to this show right now for whom Obama’s second term is kinda hazy, all of their political life is the Trump administration, and I want to tell you this: It did not used to be this way for anyone. When, on his very last day in office, Bill Clinton pardoned a number of political cronies and personal friends, that was a massive scandal. I have to tell you, I think Clinton would not have done that if Al Gore had won the 2000 election.
Thomas: Mm-hmm.
Andrew: I mean, Al Gore did win.
Thomas: [Laughs]
Andrew: [Laughing] But if Al Gore had been certified as the winner of the 2000 presidential election I think Bill Clinton would not have done that because that would have so hamstrung the first year of the Gore presidency because everything Al Gore would have tried to do would have been met with Republicans saying “yeah, but you Democrats don’t care about the norms of good government, all you care about is exercising power on behalf of your friends and cronies,” and that is, you know, pardoning three people who are friends of yours. Again, I do not defend that in any way whatsoever.
Thomas: Yeah, screw Bill Clinton.
Andrew: Yeah, we’re all team “screw Bill Clinton.”
Thomas: I hope so, I dunno.
Andrew: Let’s be clear on this, what Donald Trump has done is marginalized the Office of the Pardon Attorney, which is an office within the Department of Justice, it’s one that Donald Trump has not even tried to staff with his sycophants because he just ignores it. That’s the ordinary process, and when you look at the pardons and commutations that Barrack Obama did, those were non-violent drug offenders. Barrack Obama commuted over a thousand sentences; we’ve talked about this in a previous episode of the show. That was in recognition of the fact that the standards have changed. People who were previously convicted on minor drug possession charges were subject to really unconscionably long mandatory minimum sentences, and Obama did something about that and good for him.
The pardon power was never intended, has never historically been used – and when I say “has never historically been used,” let’s be clear about this. We did an early episode of Opening Arguments on whether Donald Trump could pardon himself. I take the view, and you’ll be able to look at it in the show notes, that Donald Trump can pardon himself.
Thomas: Yeah.
Andrew: My view on that is based on the historic evolution and definition of the pardon power, which extends from the right of the sovereign, right from the King of England. Okay? That’s where we figure this stuff out from, and I want to tell you in the history of Western civilization, when you had, you know, King Beauregard the 3rd or whatever.
Thomas: [Laughs] I don’t think that was a king, yeah. It’s somebody, I don’t know kings either.
Andrew: It was never a king.
Thomas: It was probably an Edward or a George.
Andrew: It is, and I did not want to slander the good name of, you know, King Edward the 17th or whatever.
Thomas: [Laughs]
Andrew: You do not have corrupt English monarchs from the 15th Century using the pardon power exclusively to benefit their friends and cronies. This was a thing that rulers took seriously back before we had elective democracy. It’s a thing that Donald Trump does not take seriously, so yeah. It’s bad. In no way does this diminish-
Thomas: Our amicus brief?
Andrew: The work that we did!
Thomas: Yeah.
Andrew: Absolutely! Because we do not have – look, it would have been better if we had gotten, knowing this result it would have been better if we had gotten a ruling from Judge Sullivan on the Rule 48(a) issue. Here’s how this is gonna interact. Within the next couple of days, by the time you listen to this show, Sidney Powell [Laughs] Who knows, maybe she won’t now. But I guess Michael Flynn is probably still paying Sidney Powell, Donald Trump is not any longer, she’s been fired from his legal team.
Thomas: [Laughs]
Andrew: Sidney Powell-
Thomas: Too stupid or/bad of a lawyer to be on Donald Trump’s legal team!
Andrew: Yup.
Thomas: That’s the ultimate insult.
Andrew: Yeah.
Thomas: I mean … wow!
Andrew: Sidney Powell is going to move to dismiss the pending indictment against Michael Flynn in front of Judge Sullivan on the grounds that the case is moot, and the case is moot.
Thomas: Yeah.
Andrew: It will be dismissed.
Thomas: I gotta ask, though, I’m seeing rumblings on Twitter. Is there anything to be done? I imagine this is the typical Occupy Democrats kind of thing, but I see people that are like “well, it’s a corrupt pardon, you can’t corrupt a coconspirator” something. Is there any magical trick here, or is this just we can’t do anything?
Andrew: I have exhaustively researched, not just the history of Presidential pardons, but gubernatorial pardons, mayoral pardons. This is something that I have lived in. I certainly will listen to an argument from liberal lawyers, we had Jed Shugerman on this show who believes that the President does not have the power to pardon himself. You might recall, when he said that as kind of an aside, I was like “Jed, you should come back on the show, we should do a debate because not sure you’re right on that one.”
Thomas: Yeah.
Andrew: I wanna say it this way: If you find a credible source, a Jed Shugerman, a Lawrence Tribe, a Laurence Lessig, a Richard Painter. If you find somebody who argues that there is a judicial basis for overturning a corrupt or co-conspiratorial pardon I don’t wanna say that that person is an idiot?
Thomas: Right.
Andrew: I want to say I think their argument will likely not carry the day. I sure hope it does!
Thomas: Mm-hmm.
Andrew: We’ll evaluate it, I’ll take a look at whatever argument they wanna put together. It gives me no joy to be on the side of “this pardon is gonna stand.” My evaluation, from somebody who’s done an awful lot of work in this area, is that this pardon is gonna stand.
Thomas: Wow. Is Judge Sullivan freed up to do anything?
Andrew: Nope.
Thomas: Or is it just like nope, done.
Andrew: That’s it, that’s done. Look, [Laughs] Judge Sullivan has a lot of high profile cases in front of him right now and I feel confident – this is one of these “I’m not even gonna do a victory lap on an Andrew Was Right” that Sidney Powell is gonna move to dismiss the case and Judge Sullivan will say “in light of Pardon X, issued November 25th, 2020, this case is dismissed.”
Thomas: Mm-hmm.
Andrew: It will be a one-line. But I wanna be really, really clear about this, here is the victory: if a future President has a corrupt Attorney General and is pressuring his line prosecutors to dismiss cases against politically connected defendants, we do not have – we will have the exact same arguments that we have now. We do not have a ruling to the contrary, which let’s be clear about this, we had for a hot second, that three judge panel at the U.S. Court of Appeals for the D.C. Circuit, led by Neomi Rao, we had that for a hot second. We got active and we intervened, and we got involved and we don’t have that as precedent. It will be a live argument that he can’t corrupt the DOJ from the inside if any President tries to do this again.
You heard the way I couched that, that’s not the same as having a trial court that says “you can’t do this.” That would have been a much better outcome, we’ve been deprived of that outcome, but we’ve also been deprived of the worst-case outcome. I’m still-
Thomas: Well this still sucks and we have not even started the whiteboard, Andrew. We have not even started the whiteboard, but that’s what happens when Trump pardons his cronies ten seconds before-
Andrew: On Thanksgiving.
Thomas: Thanksgiving-Eve. Okay. Well let’s get to our show! [Laughs]
Andrew Was Right About Everything!
[20:09.7] [Segment Intro]
Thomas: I’ve got some cool Andrew Was Right music, by the way, that I made just for fun. [Laughs] Andrew doesn’t ever hear these things because I do them in post, but just so you know, Andrew, you have a fun little theme now. What else were you right about?
Andrew: I was right about everything! Again, this is why you should, you know, chill out. We’ve called in the wolf, it’s all gonna be good. Things that I was right about: First, Donald Trump’s lawsuits. Do you remember those from like a week ago?
Thomas: Yeah, so fun.
Andrew: When people were saying, yeah, the lawsuits are gonna gum up the works and they’re gonna go to the Supreme Court. Look, here’s what happened, exactly what I told you would happen. These lawsuits are nonsense. They’ve been roundly dismissed from every court in the country, be they conservative, liberal, moderate, it doesn’t matter. Donald Trump [Laughing] moved for injunctive relief in the Third Circuit, which, by the way, is not a thing you can do.
Thomas: [Laughs]
Andrew: Literally asking the Third Circuit to impose a TRO is the equivalent of –
Thomas: Ordering a Big Mac at Wendy’s!
Andrew: [Laughs] Yeah, exactly! That’s a better analogy than I had queued up, so we’re gonna stick with that one.
Thomas: [Laughs]
Andrew: It’s crazy! It is the kind of thing that, again, a court ought to impose Rule 11 sanctions against the lawyers that have signed these pleadings. Trump’s lawyers have moved to admit Rudy Giuliani pro hac vice in the Third Circuit to argue the case and the Third Circuit doesn’t let you do that!
Thomas: [Laughs]
Andrew: That’s literally a thing, it’s in the Third Circuit Rules that says “you cannot be admitted pro hac to argue. You have to be admitted to practice before the Third Circuit.” It’s crazy! So, when we say-
Thomas: It’s just inept, right?
Andrew: Yeah.
Thomas: I mean it’s just sheer ineptitude.
Andrew: Inept on a level – [Laughs] There’s a lawsuit pending in Georgia in which in the footnotes in describing the ostensible evidence, of which there is no evidence, they copied over a footnote from their Michigan lawsuit-
Thomas: [Laughs]
Andrew: Because, you know, fraud in Michigan is not relevant to whether there’s fraud in Georgia, but delightfully they lawyer filling that out, and I have a slight sympathy here because some of our listeners will confuse the state abbreviations for Michigan and Minnesota.
Thomas: Yeah.
Andrew: They’re like, oh MI, right? It is a Georgia lawsuit. It repeats an allegation about Michigan, but is in fact about Minnesota. That’s real bad when you do that! [Laughs] You know, you’ve heard about hearsay within hearsay, this is stupidity within stupidity. It’s pretty great, and we didn’t even get to cover – we flagged it in the A segment, but Donald Trump fired [Laughing] Sidney Powell via Twitter. So, I was right on all the lawsuits.
I was also right – boy, I feel like there aren’t enough victory laps to do for this one. I told you that Emily Murphy would ascertain that Joe Biden is the President Elect, and on Monday, right before our episode dropped, she did! Because he is the President Elect.
Thomas: What was the reasoning, or how did you know she would do that and not just hold out as an awful Trump hack? I don’t remember.
Andrew: Because we were hitting the point – here’s how it broke down as a legal matter. The statutes and accompanying regulations that we read gave Murphy some discretion in order to ascertain whether Biden was President Elect. As a result of that you could not simply bring a mandamus action. Mandamus is what you bring when a government official-
Thomas: Right. I remember that! If there’s discretion, can’t mandamus it.
Andrew: Yeah! Right. In other words, this was not a slam dunk 100 to zero, but what we knew was happening – the fact that it’s not 100 to zero does not mean that the Biden team was without a remedy. The remedy they had was a declaratory judgment action and injunctive relief. What you do is you file a lawsuit that says “under the law Joe Biden is President Elect and so we want a court order telling Emily Murphy that under the operative standards he’s the President Elect, knock it off.”
This is about the week. Again, I was just using my knowledge of the law and calendars and everything.
Thomas: [Laughs]
Andrew: This is the week in which you bring that kind of lawsuit.
Thomas: Yeah, Andrew has studied calendars a lot. There’s a calendar unit in his law degree.
Andrew: You really do! You let ‘em go the first two weeks, but then you backchannel and you call up Emily and say “hey, not sure where you are, you can be wherever you wanna be, but if you have not ascertained that Joe Biden is the President by X day, we’re gonna file a lawsuit.”
Thomas: Right, we’re gonna ascertain you right into an orange jumpsuit!
Andrew: Yup!
Thomas: Well not really, but…
Andrew: Well, not quite, but we’re gonna get the court to force you to do that and that’s gonna look bad and not be great on your resume. You’re going down in a sinking ship for somebody who will not be in office two months from now.
Thomas: Yeah.
Andrew: That 100% happened exactly the way we told you it would happen.
Thomas: By the way, I already hope this is a stain on her resume. I hope she doesn’t get another job.
Andrew: Yeah!
Thomas: You already failed, sorry.
Andrew: Oh, I mean should we talk about the letter that she sent to Joe Biden?
Thomas: [Sighs] I don’t know if you have time, man.
Andrew: I’m gonna include the link in the show notes.
Thomas: I’m looking at your bullet points, you’ve got a lot of bullet points.
Andrew: Anyway, the letter says “Please know that I came to my decision independently, based on the law and available facts. I was never directly or indirectly pressured by any Executive Branch official—including those who work at the White House or GSA—with regard to the substance or timing of my decision.”
Thomas: You know, yeah, that’s worse.
Andrew: I believe that! I think she’s just a Trump loyalist.
Thomas: I think that’s worse. [Laughs] Maybe not legally, obviously I’m sure there’s some legal reason for her saying that. If it was actually that you just were so stupid that you’re not sure who won the election until now then that’s worse.
Andrew: [Laughs]
Thomas: I’d rather it be like “yeah, no I’m just listening to Trump.” [Laughs] Makes more sense to me personally.
Andrew: I do wanna add, before we move on from this bullet point, that people have asked questions about the way this letter was written, because the letter does not say “I, Emily Murphy, hereby ascertain pursuant to 3 U.S.C. § 102, the Presidential Transition Act of 1963, that Joe Biden is President Elect.” It does not say that sentence, it does not matter. The letter says under the act I authorize Joe Biden to access the Presidential transition information and funds, and that means you’ve ascertained. There’s not gonna be – I dunno why she wrote it that way. I would have said “I ascertain that Joseph Robinette Biden Jr. is the President Elect of the United States.”
Thomas: Is his middle name Robinette?
Andrew: His middle name is in fact Robinette.
Thomas: Oh. Beautiful.
Andrew: Anyway, I would’ve said that. She didn’t. Doesn’t matter, same legal effect, there’s no weird, like, takesies backsies sovereign citizen gold fringe nothing.
Thomas: Yeah.
Andrew: It’s done and over, just like we told you it would be.
Next thing that’s done and over, just like we told you it would be, is states are continuing to certify their election results. I know Trump has said they don’t have to and Mark Levin has said “oh, the legislatures are gonna…” It’s not gonna happen. Okay? Since our last episode Virginia used a two-day extension, ‘cuz you know, COVID and counting ballots and stuff. They certified on November 18th. Georgia certified on November 20th, Pennsylvania and Michigan on the 23rd, Nevada, Minnesota on the 24th, and by next Tuesday Arizona is gonna certify on the 30th, Wisconsin is gonna certify on the 1st.
We’re passed the point in these swing states that have, you know, Republican legislatures or Republican governors or both, for them to throw shenanigans that people are thinking about. It’s not gonna happen, the states are gonna certify that Biden won their electoral votes because Biden won their electoral votes.
That does not mean – you can still have recounts.
Thomas: Hmm.
Andrew: You can have recounts up until December 12th, up until December 14th actually, when the electors actually meet, but take Georgia. The margin in Georgia is 12,670 votes. There has never been a recount in American history that has overturned 12,670 votes.
Thomas: And quickly, because I listen to The Daily, I know a lot of people do.
Andrew: Yeah, yeah.
Thomas: Millions of Americans listen to The Daily. They presented the Georgia recount as some sort of concession to Trump, and that just didn’t seem right to me, but am I wrong? Is that an accurate statement? I thought it was kind of a routine audit check thingy they do. Was that a concession to Trump?
Andrew: I would not interpret that as a concession to Trump.
Thomas: Okay.
Andrew: That is – we talked about this from our show immediately following election day, the difference between Georgia and Wisconsin is that when you trigger the various provisions of the Georgia statutes, Georgia says that those recounts are paid for at taxpayer expense and Wisconsin requires you to pay, you know, “no! Money down!”
Thomas: [Laughs]
Andrew: Yeah, it does not-
Thomas: Free recount? No! Money down.
Andrew: [Laughs] I wanna be clear on this, I think Georgia’s model is better than Wisconsin’s model.
Thomas: Hmm.
Andrew: If you had a grassroots candidate with no money that lost by 74 votes, yeah, absolutely they should get a hand recount of everything that happened in that state in order to see if they actually won. We shouldn’t say “oh, you’re gonna have to put up a $7 million bond,” it was actually $8 million, 7 point something, to recount all of Wisconsin. It’s why the Trump campaign didn’t do that. Georgia has what I would call a more progressive model that says if you can meet the criteria, it’s under a half a percent, which it is, then you can request a recount. I don’t have any problem with Trump availing himself of the legal mechanisms that are available to him. I will tell you; it will not matter. [Laughs] There’s absolutely nothing.
Here’s the significance. On November 26th, 2000, the State of Florida certified that its electoral votes went to George W. Bush. Everything that happened after that, and again you can listen to episodes 1 through 4 of the podcast, was about Al Gore attempting to supplant that certification, which you then have to prove by various standards ranging from a preponderance to clear and convincing evidence. To say, yeah, you said Bush won this State, but here’s clear and convincing evidence that I actually won this State.
Thomas: Hmm.
Andrew: That’s how the recounts operate. Once we cross that threshold, once we go past December 1 next Tuesday, all of the swing states will have certified their election results. Presumptively that will make Joe Biden legally the President Elect, the next President. It’s gonna happen. Does that mean that you have zero remedies if there were, in fact, fraud or indeterminacy or whatever? No. But you have that baseline, it’s not just oh, it’s all up in the air and it depends on what Amy Coney Barrett says.
Thomas: Mm-hmm.
Andrew: That’s not where we are. We are at a place where states, Republican states, Democratic states, whatever, are certifying that Joe Biden won their electoral votes and is in fact President Elect of the United States. We shouldn’t have to be doing this, but we are and I know we’ve got people on our side who are sort of freaking out. We’ve been trying to talk you off the ledge and maybe you believe us a little bit now.
[34:49.3] [Commercial]
[37:08.3]
Thomas: Do you always include “us” in that to try to give me some credit, I appreciate it.
Andrew: [Laughs]
Thomas: I’ve been working – but no, again, the peak of my worry was basically election night, maybe a little bit the next day.
Andrew: Hmm.
Thomas: And as things have unfolded, you know, it’s gotten better. You’ve helped me feel better. I’m convinced – I represent the “very worried, skeptical, things don’t matter as much” listener, I think, and no, even I feel pretty good that – in fact I feel incredibly good that Trump is leaving, he’s gone. I think you’ve convinced me; results are final, they don’t have any [Laughs] They don’t exactly have top talent working on their legal cases.
Andrew: [Laughs]
Thomas: I mean, yeah. Still feel really bad about of bunch of other things, but about this specific thing, feeling good. Alright, even more, still more you’re right about. By the way I just wanna, side note, the point of these segments, and I’m sure we’ve said this before, this isn’t really about oh, “Individual A” Andrew Torrez is right or wrong. The point is that a lot of the media you may be watching, cable news and all that, there’s no penalty for when people get stuff wrong. Pundits can pundit, can just say whatever, nobody really holds them accountable.
We wanna be accountable on this show, and when we get something right or wrong – I’m using the royal “we.” When Andrew gets something right or wrong, you know, we wanna tell you why he’s predicting it and if it was wrong how it went wrong. We’re seeking to have a better understanding here, it’s not just about some point system of what Andrew did or didn’t say. I just wanted to emphasize that because it’s really about being able to form a better view, a more accurate picture of the world and how things are working than it is about just Andrew being right or wrong, but it’s also fun when our good friend Andrew Torrez is right about something.
Andrew: [Laughs]
Thomas: Just wanted to emphasize that. What’s the final thing?
Andrew: So, with all that as “things that we told you not to worry about and feel good about,” this is another thing that we were right about that I kinda wish we weren’t. [Laughs] That is, a couple days ago, November 22nd, the United States formally withdrew from the Open Skies Treaty. If you know what the Open Skies Treaty is that’s because you’re a show listener. In fact, we did our live show-
Thomas: Yeah, I remember!
Andrew: That was OA 325 when we covered what was the main story for that live show, was withdrawal from the Open Skies Treaty. You should go back, look, it’s Thanksgiving! Go listen to OA 325. But if you haven’t, the takeaway is I’m not saying that only a Russian stooge would withdraw from the Open Skies Treaty, but I am saying that if we had a Russian stooge as President of the United States this is exactly what that Russian stooge would do.
The Open Skies Treaty is a benefit to the United States and we are worse off in the international community, and the arguments to the contrary are ridiculous. The fact that you have Republicans lining up to defend this is an illustration of how far Trump took over and corrupted the party. This is a Republican plan, put into place under a Republican President, that, to the extent that their arguments are correct, that there is an attempt to evade by Russia, it would be to our interest to remain in the program rather than to opt out of the treat.
But no, May 22nd the United States exercised its right pursuant to Paragraph 2 of Article 15 of the Open Skies Treaty by providing notice to the various treaty signatories of its decision to withdraw. There was a six-month grace period, and those six months ended November 22nd and the United States filed the sternly worded crunch wrap that says “we’re definitely out.”
We’re definitely out, and that’s bad, and it sucks and it hurts our geostrategic position vis-à-vis Russia, which, you know, is pretty much what the Trump administration has tried to do.
Thomas: [Sighs] Well is there an undo on this or? What do you think Biden’ll do with this?
Andrew: Yes and no. Look, we can petition to rejoin, and the Biden administration is gonna do a lot of that stuff, but we’ve talked about this. One of the arguments against the efficaciousness of the Open Skies Treaty is that it was written in late 80s, early 90s. The technology that they talk about in it is the big camcorders you had to sling over your back and they recorded on a 5 and a quarter inch floppy disk or whatever.
We have certain equipment that is dedicated to being OSI compliant and the military can mothball that equipment in the next two months. If they do, we’re gonna have to reauthorize, rebuild, find somebody – I think the Western Design Center still makes the 6502, but we’re gonna have to rebuild this camcorder stuff.
Thomas: Wow, you and I? Alright, let’s get on it!
Andrew: Yeah, you and me, that’s it, we’re doin’ it. Yeah, we can reenter but this is the theme and we’re gonna be talking about this for 4 years. At least the next 2 years. The theme is, think about that bratty kid that comes by and knocks down your house of cards. It’s way harder to build something up than it is to destroy it.
Thomas: Yup.
Andrew: This is a thing Trump has destroyed on his way out.
Breakin’ Down the Law: Lindsey Graham is a Criminal
[43:09.3] [Segment Intro]
Thomas: Alright Andrew, can we finally talk about [Laughing] locking Lindsey Graham up?
Andrew: Thomas, you’ve been asking me this ever since Lindsey Graham did this and I shared your outrage. I thought today, on this day in which we give thanks, was a good day to dig into it. South Carolina Senator Lindsey Graham called up the Georgia Secretary of State Brad Raffensperger, and in a conversation told him … something. Exactly what he said is somewhat disputed, but Brad Raffensperger, lifelong Republican, somebody who voted for Trump; somebody who has said in writing (quote) “I was hoping Republicans would win” (end of quote).
Thomas: Wow.
Andrew: So, you know. Yeah.
Thomas: Not a deep state Democrat. No, probably will be labeled as a deep state secret Democrat, but not really.
Andrew: Right. What Raffensperger says that Graham asked him to do was to say in counties in which there was a significant mismatch between the signature on the envelope on the outside of a ballot and the signature of a voter on file with the Secretary of State to then say “oh, if there’s a county where there’s a lot of these that’s presumptively fraud and we wanna throw out all of the ballots from all of those counties.”
Let me break down that sentence a little bit because … it’s crazy. [Laughs]
Thomas: [Laughs]
Andrew: First – again, because there’s a lot of disinformation being put out by Lindsey Graham, and by Donald Trump-
Thomas: You don’t say.
Andrew: Yeah. First, you don’t sign your ballot. I shouldn’t have to say this, but Lindsey Graham has tweeted out “when there’s a mismatch between your ballot and the envelope that’s voter fraud.” Well, you don’t sign your ballot. You know why you don’t sign your ballot, Lindsey? Because we have a secret ballot system in the United States.
Thomas: [Laughs]
Andrew: You don’t sign your ballot.
Thomas: It’s just the envelope it comes in, right?
Andrew: Yeah. You fold up your ballot and, in some states, you put it in an envelope, and then you sign the envelope. When they are processing that ballot at the election center there are various states, including Georgia, that then match up the signature on the back of the envelope with the signature that you have on file. I wanna tell you, I have done a ton of research on this.
This is a tool that is used to disenfranchise minority voters. There is nothing inherent about being black that says your signature is less likely to match. There are a couple of things that, again, predominantly favor Democratic voters where there’s likely to be a mismatch. One of them is young voters.
Thomas: Mm-hmm.
Andrew: If you have any Uncle Franks in your timeline, you may see them having posted cranky nonsense about “well you know the problem with that common core is that they’re no longer teaching our kids cursive.”
Thomas: Yeah. [Laughing] Common core!
Andrew: You’ve looked it and been like “oh, Uncle Frank, you racist idiot.”
Thomas: [Laughs]
Andrew: But it is true.
Thomas: Yeah.
Andrew: Our kids don’t know cursive.
Thomas: I don’t know cursive. Go on.
Andrew: Really? Okay, well.
Thomas: I mean I could probably remember some of it, I don’t write! I type! I don’t write anything.
Andrew: Yeah.
Thomas: If I write for more than like a couple sentences my hand cramps up, I can’t even do it. Look, I’m a millennial! [Laughs]
Andrew: [Laughs] I love you.
Thomas: Writing is a dying – I also don’t know how to set the type in a printing press or use calligraphy. If people do know that still, that’s cool, good for you.
Andrew: [Laughs]
Thomas: I don’t really think it’s that important anymore.
Andrew: Yeah. Here’s the thing, again I’ve mentioned this on the show. My son’s 18 years old, my son’s (quote) “signature”
Thomas: [Laughs]
Andrew: Look, anything my son writes as opposed to types looks like, you know, a five-year-old has done this on a plane that’s taking a nosedive.
Thomas: Okay, it’s time to admit some things, Andrew. When we did the aforementioned live shows, we wanted to do a thing for, I can’t remember, our top-level ticket holders or something, where we gave them a really cool printed card of the Optimist Prime and Negatron thing? I thought it would be cool if we signed those, you know? Do you know what I had to do to do that, accomplish that? I had to take an entire evening and practice being able to write a legible signature of any kind.
Andrew: [Laughs]
Thomas: Not even joking!
Andrew: [Sighs] Oh god.
Thomas: I had to work on it. I have actually, I had a whole like notepad that I was like “okay, I need to get this to look like not a four-year-old wrote it.”
Andrew: [Laughs] And you’re like 33, right? 33?
Thomas: I am 34 now.
Andrew: 34, okay. Holy shit, alright.
Thomas: I was just trying to remember. When I say not a four-year-old, I’m not shooting for an adult, I’m just trying to get to like a nine-year-old. [Laughs]
Andrew: Yup.
Thomas: That was the level of signature. I’m hoping to get more into the teens if I was lucky. I have no signature.
Andrew: So, here’s what that means. If you are 34 years of age and under – and by the way if you’re 34 years of age and under you’re a Joe Biden voter.
Thomas: Wow, how’d you know?
Andrew: No two signatures that you make are likely to look the same.
Thomas: Oh my god, absolutely, yes!
Andrew: Yeah! Right.
Thomas: I wouldn’t be able to vote if I were black, oh my god. If I lived in a place that’s been targeted with these stupid laws-
Andrew: Yup. As it turns out an expert witness has evaluated this. I will include the link in the show notes, this was challenging an Ohio signature matching law, but the research is the same. The highest level of false positives, that is where one person signs their name twice but the vote matching system says “nope, that’s two different people,” the three categories that get thrown out are the youngest voters-
Thomas: Yup.
Andrew: The oldest voters, and voters with disabilities.
Thomas: Oh, right! I didn’t think about that, yeah.
Andrew: I can imagine all of that. If I had to say this, what percent of signatures do you think that the vote matching software tosses out? Says “oh no no, this is fraud, this is two different people” that turn out to be authentic signatures?
Thomas: Oh, that turn out to be actually right?
Andrew: Right. So 0% the software works perfectly, 100%-
Thomas: 100% they’re all false, okay.
Andrew: Yeah, you know. Come one.
Thomas: We’re already a percent of a percent. So, we’re the percent of the ones that it’s already rejecting, which percent of those are actually correct signatures?
Andrew: Right, are false positives, yes.
Thomas: How often would there even be a problem? I wonder what the actual rate of a problem there even is. There can’t be that many that it could even correctly identify, because how often is this even a problem? It’s gotta be negligible. Am I wrong? I’m gonna say 70%.
Andrew: 97%.
Thomas: Wow.
Andrew: 97% of rejected signatures are, in fact, authentic signatures.
Thomas: Yeah, ‘cuz when you think about it, I think I stumbled onto it, how big of a problem would this even be?!
Andrew: It isn’t, it’s not a problem.
Thomas: It’s always gonna be false positives or whatever.
Andrew: At all.
Thomas: Yeah.
Andrew: That ratio is, if the software kicks out a ballot as being the signature does not match the signature on file, it is 32 times more likely to be a valid ballot than it is to be an invalid ballot.
Thomas: God. Get rid of the stupid software, get rid of these rules, it’s a joke.
Andrew: What that means is in areas where you have extra scrutiny – and we all know what that means – it’s incredibly likely to throw out ballots on the basis of a signature mismatch where you know, everybody knows, that these are valid ballots. Now, let’s put all that back together again. What Lindsey Graham tried to do was not just throw out ballots, was not to say “oh, you should throw out signature mismatch,” was to say – again, allegedly, but this is what a Republican alleges that he was told to do-
Thomas: Mm-hmm.
Andrew: To throw out all of the ballots, including valid ones, in counties that had a high level of mismatch. Again, counties with a high level of mismatch means Democratic counties.
Thomas: Wow. So even if – even if you took this idiotic, stupid, corrupt thing to be true. Even if you took it, oh, there are some mismatches that are legit, let’s just say for the sake of argument, he goes further to say that everybody in that county should therefore lose the right to vote?
Andrew: Correct.
Thomas: Oh my god.
Andrew: Yup. Fortunately, not only is this a crime, there are three separate ways that we can hold Lindsey Graham accountable. I want us to pursue all three of these approaches.
Thomas: Ooh, let’s do it.
Andrew: I think we can. First, this violates federal election law. What federal election law does it violate? Here’s how I had to put this together, and you might ask has anybody ever been prosecuted for this? Not to my knowledge.
Thomas: Oh. Not a good sign.
Andrew: Whatever! Not to my knowledge has a sitting Senator said “uh hey Secretary of State, you should throw out valid votes.”
Thomas: Yup, true.
Andrew: First, I looked for “is throwing out valid votes a crime?”
Thomas: Hmm.
Andrew: You know, you might say these are state elections, is it a federal crime? Was my first question. It turns out, it is a federal crime.
Thomas: Well why was that – wouldn’t you want it to be a state crime so Trump can’t just pardon him or something?
Andrew: Well, you start the investigation now but you bring the charges on January 23rd.
Thomas: Oh, okay.
Andrew: 52 U.S.C. § 10307 subsection (a) makes it a crime for any election official to willfully refuse to tabulate and report the vote of any person. If Raffensberger had listened to Lindsey Graham and refused to tabulate those votes, that would have been a crime. Then I asked myself, okay, is it a crime to ask somebody to do that?
Thomas: Yeah.
Andrew: And fortunately, if you flip to the very next section, 52 U.S.C. 10308, “whosoever attempts to deprive any person of any right secured by” that thing you just read, 10307(a), is guilty of a felony.
Thomas: Wow!
Andrew: Yeah. It’s a felony! You can’t call up an election official and say “I don’t want you to take into account valid votes.” Alright, it’s a violation of federal law. You mentioned the Trump pardon thing? This is also a violation of Georgia state law.
Thomas: Wow!
Andrew: Why? A bunch of different things, but it is a violation of § 21-2-604, “Criminal Solicitation.” It says “A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage in such conduct.” Is that conduct that he was trying to do a felony? You bet your booty it is!
Thomas: [Laughs]
Andrew: 21-2-562, “any person who willfully alters materially or intentionally destroys any entry which has been lawfully made or inserts or permits to be inserted any fictitious name, false figure, false statement, or other fraudulent entry on or in any registration card, electors list, voter’s certificate, affidavit, tally paper, general or duplicate return sheet, statement, certificate, oath, voucher, account, ballot, or other record or document authorized to be made, used, signed, returned, or preserved for any public purpose in connection with any primary or election shall be guilty of a felony and, upon conviction thereof, shall be sentenced to imprisonment for not less than one” not less than one, mandatory minimum, “
Thomas: Oooh.
Andrew: “Nor more than ten years or to pay a fine not to exceed $100,000.00, or both.” Lindsey Graham has violated, arguably – again, you have to figure out, you have to call Raffensperger to testify in front of a jury.
Thomas: Yeah, what if it’s just a “he said/she said?”
Andrew: It would be up to the jury. The jury would say do we have reasonable doubt about this? People get convicted in those situations all the time! They say “I 100% do not believe Lindsey Graham.” A couple of things have happened in light of the public discovery, thanks to Secretary Raffensperger. Lindsey Graham first said “oh yeah, well I called a bunch of different secretaries of state because I’m just concerned about election results. I called Arizona.” Then Arizona’s Secretary of State said “Lindsey Graham never called me.” Never minding that he only called red states, by his own definition, he only called red states that went for Biden.
Thomas: Mm-hmm.
Andrew: [Laughing] But the Arizona Secretary of State said “Lindsey Graham never called me.” We will be able – in a criminal case you would be able to subpoena either the State or Federal Prosecutor or both! It would be delightful, let’s have him on simultaneous prosecutions.
Thomas: Yeah.
Andrew: That does not violate double jeopardy, listen to our Law’d Awful Movies Double Jeopardy to find out why. Would be able to subpoena his phone records, and what we do know, what Lindsey Graham has said anyway, is that he made two calls to Secretary Raffensperger and that there was a call in between. Do we know that that was to Donald Trump or to a Donald Trump oper- we don’t know that. But we sure would if Lindsey Graham were indicted for either federal election fraud or Georgia State election fraud.
There’s a third thing that we can do. I really, really cannot emphasize this strongly enough, and that is the U.S. Senate can open an ethics investigation into Lindsey Graham’s behavior.
Thomas: But only if you watch our live stream and donate the most to us and we retake the Senate, right?
Andrew: Yeah, that is-
Thomas: [Laughs]
Andrew: 100% correct. Absolutely needs to be an item on the agenda. It will not happen if the Democrats do not control the Senate. It might happen if they do, you know, it might not happen if they do, but there’s no chance. If Republicans hold on, they will shield this guy, and when the Senate begins an ethics investigation I don’t wanna get your hopes up, but I wanna tell you the Senate has the power to expel a sitting member for violations of the law, for (quote)-
Thomas: What kind of margins do you need? Oh, sorry.
Andrew: I’m gonna tell you, no! Article 1, Section 5, Clause 2, “Each House of Congress may determine the Rules of its proceedings,” we’ve talked about that, “punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” Now is it likely that any Senate would expel Lindsey Graham? No! That’s not likely! In fact, no sitting Senator has been expelled from the Senate under this provision since the Civil War. In 1862 various sitting Senators were kicked out of the Senate ‘cuz, you know, you represent a state that has declared war against the Union, but the threat of expulsion has led multiple Senators to resign rather than go to the mat on that.
Thomas: Wow.
Andrew: This is the Nixon plan. I don’t think the Senate is likely to expel Lindsey Graham, but I wanna tell you, 1995 – not the Civil War – Bob Packwood, Republican Senator from Oregon, credibly accused of multiple instances of sexual harassment, was brought up on formal disciplinary charges before the Senate for sexual misconduct and for abuse of power, and he resigned his seat rather than put the Senate to a vote. I dunno what can happen, all I know is we absolutely have the power if we control the Senate to say “this is conduct unbecoming a Senator.”
Thomas: Wow.
Andrew: Attempting to influence an election, 100 – so I talked about Bob Packwood, but 1982 Senator Williams, Harrison Williams, Democrat from New Jersey, so we’ll be bipartisan here, was brought up on ethics charges for corruption. Again, same thing, he resigned rather than put the Senate to a vote. [Laughs] Senator Williams, by the way, that was in connection with the Abscam scandal, which is one of my favorite stings of all time.
Thomas: Scandals? Oh. [Laughs]
Andrew: Oh yeah!
Thomas: I’m a Teapot Dome man, myself.
Andrew: Teapot Dome, quality.
Thomas: I just like the name; I have no memories. Wasn’t it oil rights or something I think they sold?
Andrew: Yeah. Warren G. Harding.
Thomas: Yeah.
Andrew: It was the kind of thing that Donald Trump did three times a day-
Thomas: Yeah, and it was fine. Just covered, boom, via Tweet, didn’t matter.
Andrew: -brought down the entire Harding administration, yeah.
Thomas: Yup.
Andrew: Yeah, we have the ability to do something.
Thomas: Let’s do it, folks!
Andrew: We can and we should.
Thomas: We have to win the Senate, it’s so important. I know, we don’t get everything we want, we don’t get single payer healthcare probably, but there’s so many things we do get if we win the Senate, please put all your energy into Georgia this next … month? How long do we have? Gosh, it’s kinda closing in on this.
Andrew: Yeah, we have until January the 3rd.
Thomas: Oh gosh. Let’s focus in folks, it’s very important. We could get rid of Lindsey Graham, maybe. We could.
Andrew: Yeah!
Thomas: I’ll tell you, we have no chance of doing it if we don’t win.
Andrew: Yeah! We can put people to the vote, and you might be saying “oh, well Republicans have gotten away” yeah! Trump has gotten away with it, but the number of Republicans who are loyal to Lindsey Graham is [Laughing] way, way lower-
Thomas: Yeah.
Andrew: -than the number of Republicans who are loyal to Donald Trump. You know, let’s – you can’t win if you don’t try.
Thomas: Exactly.
An “Andrew 60-Seconds:” E. Jean Carroll Lawsuit Update
[1:03:26.4] Alright, here’s the thing, we were gonna do a bar exam question but turns out Andrew’s a deadbeat-
Andrew: [Laughs]
Thomas: -who doesn’t pay his bills! No, it’s been so long, the license lapsed, huh?
Andrew: Yeah. I’m gonna have to get you a new license. I will give you – since we can’t do a bar exam question I will give you 60 seconds on recent ruling from the-
Thomas: Oh, okay. Sure!
Andrew: E. Jean Carroll defamation lawsuit. This minute order entered November 20th, Judge Kaplan, no relation to Roberta Kaplan, E. Jean Carroll’s lawyer. We have talked about the fact that the court decided, Southern District of New York, U.S. District Court for the Southern District of New York, rejected Donald Trump’s efforts to have the U.S. Department of Justice intervene on his behalf. The court (quote), they issued a minute order (quote) “clarifying the docket,” [Laughs] and this is delightful.
[Laughing] It says “this action was commenced against Donald J. Trump in his individual, not his official, capacity in New York State Court. By substitution for the original private counsel for Mr. Trump, Mac Kasowitz, Christine Montenegro, Paul Burgo, appeared on defendant’s behalf. On September 8, 2020, the United States of America represented by Stephen Terrell and other attorneys at the Department of Justice removed this action to this Court” (that is Southern District of New York) “and later moved to substitute the U.S. as defendant in place of Mr. Trump. On October 27th, 2020, this Court denied that motion.” (Which we’ve covered on the show).
“Accordingly, by virtue of their appearance on behalf of Mr. Trump in the State Court, Messrs. Kasowitz and Burgo and Ms. Montenegro represent Mr. Trump in this removed action unless and until relieved by this Court. Nevertheless, the docket sheet erroneously lists Mr. Terrell and other DOJ attorneys as counsel for defendant Trump.” [Laughs] And I love it when a judge says this: “That is incorrect. They represent only the United States.
The Clerk shall correct the docket to reflect that Messrs. Terrell and his colleagues at the DOJ represent only the United States of America and that Messrs. Kasowitz and Burgo and Ms. Montenegro represent Mr. Trump. The Clerk shall mail copies of this order to attorney Mark Kasowitz, Christine Montenegro, etc.”
Here’s what that means. This is a continuing attempt, in addition to improperly attempting to assert executive privilege, this is Donald Trump trying to pass his legal costs onto the Department of Justice, which is to say onto you and I as the taxpayer.
Thomas: Wow.
Andrew: And Judge Kaplan was like “yeah, get out of here with that! You gotta pay Mark Kasowitz, sorry, he’s your lawyer.
Thomas: [Laughs]
Andrew: He represented you in State Court, you do not get to foist this off on DOJ no matter how much Bill Barr is a corrupt dinosaur puppet that wants to intervene on your behalf.
Thomas: Wow. Well I guess I aced this bar question!
Andrew: You sure did!
Thomas: [Laughs]
Andrew: I feel like America aced this bar question.
Thomas: Yeah.
[1:06:47.3] [Patron Shout Outs]
Thomas: Thanks so much for listening everyone, we’ll see you, I hope you had a good Thanksgiving, socially distanced, away from anyone who is not in your pod.
Andrew: Yeah.
Thomas: And all that. We’ll see you on Tuesday.
[Show Outro]