Listen to the episode and read the show notes
Topics of Discussion:
- Did Trump Make a Mistake by Pardoning Flynn?
- Breakin’ Down the Law: The (Terrible) Case Against Indicting Trump
- Case Closed – Roman Catholic Diocese v. Cuomo
Thomas: Hello and welcome to Opening Arguments, this is episode 443. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I am fantastic, Thomas, how are you? Did you have a nice Thanksgiving?
Thomas: I didn’t really have a Thanksgiving.
Andrew: [Laughs] Well, I think a lot of us didn’t.
Thomas: Didn’t even – probably first time in years I didn’t have any Thanksgiving food, really.
Thomas: My wife made a few things but, you know, we’re just by ourselves so we didn’t really wanna do it, so that was me!
Andrew: Your children didn’t demand roast turkey?
Thomas: They don’t understand anything. [Laughs]
Thomas: Olivia made a pie at least, you know, so they got to have some of that and they didn’t really like it, so it was great! Great holiday, how about you? How was yours?
Andrew: Mine was great! You know, as you know and I think a lot of our show listeners know, I live next door to my sister which is fun and that way we have all been quarantining kind of in the same bubble so, you know, there are three more people that I get to see, which is like a hundred fewer than I would like to.
Andrew: But it’s still better than a lot of folks.
Thomas: Yeah, for me Thanksgiving is always, you know, my mom’s food that she made is typically what I think of and so without that I was kinda like “eh, I don’t care.” But I’m not gonna let the kids down on Christmas! I don’t care what’s going on, I’m gonna make them have an awesome Christmas full of good cheer and all that. Thanksgiving, eh.
Thomas: I was content to skip it, I didn’t really-
Andrew: As long as stayed put, didn’t go into like a huge mask-less pro-Trump rally, I think-
Thomas: Yeah, lots of people didn’t. We’ll see how that goes, everybody. We’ll see how many people die ‘cuz people had to do Thanksgiving. It’s fine, we’ll see.
Andrew: Yeah, that’s not great.
Thomas: Anyway, let’s get to our show! [Laughs]
Andrew: [Laughs] Our show is way more upbeat than that!
Thomas: Yeah, lots to talk about. I’m gonna try my best not to yell. [Laughs]
Thomas: On our main segment about not locking Trump up by friend of the show and hopefully still friend of the show, because we do love him, but I strongly disagree with this article. Randall Eliason wrote for the Washington Post about not prosecuting Trump, we’ll get to it. We also have some claims about whether or not Trump made a huge mistake by pardoning Flynn? That could be interesting. Maybe it’s a one weird trick or something, I’m not sure, we’ll have to get Andrew’s take on it. And if we have time, which, we’ll see, it’s a wild card, we’ve gotta talk about the latest Supreme – I guess – is this the first batch of Supreme Court decisions with Amy Coney Barrett?
Thomas: How did that go, Andrew? Just preview.
Andrew: Uh, not great.
Thomas: Not great! Okay.
Andrew: Not, not … not fantastic.
Thomas: Gosh, I’m starting to think we should’ve voted for Hillary Clinton. No, I won’t, it’s okay, we got rid of Trump, it’s fine. Alright, let’s get to our show! But before that, quick little announcement about the Third Circuit. Is this one of the final nails in the election coffin, Andrew?
Andrew: Yeah. Donald Trump had a motion pending before the Third – [Laughs] Well, had an appeal of the district court’s denial for his motion for leave to file a second amended complaint. Alongside that was a procedurally improper request that the Third Circuit grant an injunction, and the Third Circuit in a page and a half order [Laughs]
Andrew: Said “no, you don’t get any of those things. You can’t continue to amend your lawsuit indefinitely trying to prevent Pennsylvania from certifying its election results. Its over, you lost, go home.”
Thomas: They’re just trying to get infinite re-dos for them to even file something correctly, right?
Andrew: This is, again, the reason we’re doing this as a preshow 60-second segment is because this is what we have been telling you. These lawsuits are laughable, they lack merit, this was – the panel opinion was written by a Trump appointee. These arguments are so bad that you have to be 100% a Trump partisan hack who cares only about showing fealty, because again, as the order points out, Biden won Pennsylvania by over 80,000 votes and he won the electoral college by 37 electoral votes. You know, the idea that you would stick your neck out to try and grant relief that couldn’t overturn 20 electoral votes, that in turn couldn’t overturn the election … we told ya! It’s gonna be fine, and this is exhibit number 50 that it’s gonna be fine.
Thomas: Yeah! Fine, uh, in the meme sense-
Thomas: -where Andrew’s sitting there with a cup of coffee and the building’s on fire and he says it’s fine.
Thomas: But you know, yes, legally, election-wise, it is going through, it’s all happening. I am seeing a lot of, in the right-wing ecosystem, I see a lot of posts as thought people just think it has to be fake that Biden got 80 million votes. There’s going to be a significant, you know, not a majority by any means, but there will be a significant group in our country that just thinks that somehow Democrats invented votes to win this election and that’ll be something that’ll be with us for a while. That’ll be the next four years.
Andrew: That is super dangerous, I do not discount that, I do not discount the erosion of norms, I do not discount that a sizeable percentage of people are buying into a conspiracy on the level of “we faked the moon landing.” Those are all real bad things; I imagine we’ll talk about those in our main segment-
Andrew: -Because they are certainly adjacent to the question of “what do we do now?”
Thomas: But vote counterfeiters, we really could’ve used some of those votes in the Senate! Just saying, I don’t know why you printed off a bunch of fake votes and you sent them to the wrong places, it’s weird.
Andrew: [Laughs] Yeah!
Thomas: Criminal masterminds, but also inept.
Andrew: Yup, exactly right.
Thomas: It’s hard to keep track of.
Andrew: Yup, yup.
Did Trump Make a Mistake by Pardoning Flynn?
[7:28.8] [Segment Intro]
Thomas: Alright Andrew, yeah, what’s this question mark that I assume means “no.”
Thomas: What’s that old viral – whenever there’s a viral thing that has a question mark the answer is no. Did Trump make a major mistake by pardoning Flynn?
Thomas: Oh. Dang.
Andrew: Here’s the thing. Everybody, when a news story breaks, is looking for their hot take.
Andrew: I get it, we do that too. The thing that we don’t do for our hot takes is say things that aren’t true.
Thomas: Start with what we want to be the case and then make the take around it?
Andrew: [Laughs] Yeah!
Thomas: We’re accountable here because of the Andrew Was Wrong segment! [Laughs]
Andrew: We are!
Thomas: Everybody else needs a “you were wrong” segment.
Andrew: Yeah, that’s been a big and popular segment. Here’s the argument that’s being made that has a kernel of truth to it, we’ve discussed this on the show on numerous occasions. When you have been pardoned for an offense you are then no longer subject to potential criminal prosecution for that offense and you are therefore deprived of the opportunity to assert your 5th Amendment right against self-incrimination that could lead you to being prosecuted for said offense.
The problem in the Michael Flynn case is that, with respect to the offenses we care about, Michael Flynn already pled guilty to those offenses!
Thomas: [Laughs] Yeah.
Andrew: So, he gains no more protection for being pardoned for them than he would have had he been – had Judge Sullivan been allowed to proceed to a resolution of the Rule 48(a) motion, presumably had he then denied that Rule 48(a) motion and said “yeah, you know what? I’m gonna sentence Michael Flynn right now to the crime of lying to the Department of Justice, 18 U.S.C. § 1001, to which he has pled guilty on numerous occasions, at least two in open court,” that would have had the same effect.
What this adds, as a (quote) “full pardon” which, you know, with all the majesty of law Twitter behind it. What this adds is immunity for the unindicted stuff dealing with the Foreign Agent Registration Act; the fact that Michael Flynn was corruptly and covertly representing the Erdogan government of Turkey before the United States.
These are bad dudes that Michael Flynn likes to hang out with, but in any event, with the Bijan Kian case wrapped up there was zero chance that he was ever going to be indicted in connection for the FARA Turkey stuff. That doesn’t go any higher, that doesn’t knock down any dominos because as far as we can tell that is limited to Michael Flynn and his immediate family cashing in on foreign dictatorships trying to lobby the United States, which is scumbaggery and, you know, definitely illegal, but he wasn’t getting prosecuted for that anyway.
So, no. No super clever major mistake where now he can-
Andrew: Where now he has extra secret special no right against self-incrimination. No, he’s – you know, we are where we would have been.
Thomas: He got away with it, everybody.
Andrew: Yeah, go ahead.
Thomas: He gets away with it.
Thomas: The bad guys get away with it a lot.
Andrew: Perfect segue! [Laughs]
Thomas: And if Professor Randall Eliason had his way, they would get away with it even more than they already do, perfect segue, play the music, whatever this would be.
Andrew: That’s a little bit of a strawman. [Laughs]
Breakin’ Down the Law: The (Terrible) Case Against Indicting Trump
[11:30.3.] [Segment Intro]
Andrew: Let’s start off with what Professor Eliason said, and by the way, we have invited him to come on the show and do a formal debate, which I think would be a lot of fun. Randall, obviously a friend of ours!
Andrew: And this is a debate – this is precisely the kind of debate that is worth having and is worth having on the left right now. Because if we can’t convince Randall Eliason that it is worth potentially indicting Donald Trump, then we have no hope of persuading Joe Manchin! We have no hope of persuading, you know, moderate Democrats. This becomes a liberal bubble, and I don’t want this to be a liberal bubble.
Let me stake out my position and then we’ll go through – I think Professor Eliason makes five arguments in his Washington Post article from just about a week ago, “The Case Against Indicting Trump.” My position is very simple: If I were Joe Biden, I would nominate as Attorney General and explicitly raise in private conversation, somebody who was open to beginning an investigation with topline prosecutors at the Department of Justice, taking the nine – what seems to me are open and shut crimes of obstruction – detailed in Section 2 of the Mueller Report, and conducting what is essentially a feasibility study on how would we prove those crimes in court?
Because, to me, the elements are very, very clearly met. You can go back, you can check this out in the archives, but I would defer to career prosecutors if they said it would be very, very hard to bring this case.
Andrew: “We’re missing X piece of evidence.” I don’t think that they are, but that’s what I would do. I would say I want my Attorney General to have, as a top priority, closing the loop on a presidential candidate and then President who accepted assistance from a hostile foreign power and then lied about it. Those are super serious crimes and the rule of law demands that we don’t just say “okay, well, my bad on the last four years.”
Professor Eliason’s article, I think, was inspired by another Washington Post report that I’m not sure says what he thinks it says. He quotes it as saying that Biden (quote) “is said to be wary of investigating and prosecuting Trump.” I’m not sure that that underlying article actually says that, but let’s assume that it does, and Professor Eliason says “I want to take up the mantle that it’s a good idea if Joe Biden just moves on, says we’re not going to investigate and prosecute Donald Trump in connection with any of his crimes.”
I think Professor Eliason makes five arguments, and Thomas I’m curious – I’m gonna lay out the argument, get your thoughts, chime in with my thoughts.
Andrew: The first argument Professor Eliason says is this would set a dangerous precedent. Again, I’m gonna quote Randall’s words wherever possible. He says, (quote) “we don’t use the criminal justice system to punish political opponents.” (End of quote).
Thomas: Yeah. Commence yelling.
Thomas: Yeah, I had that same one written down. [Laughs]
Andrew: Yeah. Essentially, if you didn’t like “lock her up” you shouldn’t like this. Donald Trump intends to run in 2024, this feels like third world banana republic. Thomas, go.
Thomas: Okay. Professor Eliason, nothing but respect for you, we love you on this show, I very much do not like these arguments but don’t consider how much I don’t like these arguments any reflection on you personally. That said, the quote in this country “we don’t use the criminal justice system to punish political opponents” and the “lock her up” comparisons make my blood boil, because that’s not what it would be!
I wanna put it the other way. People should not become magically immune to prosecution because they become someone’s political opponent. If I’m guilty of a bunch of crimes, Andrew, apparently the best thing I should do is I better run for Mayor, I guess. Well, you can’t, sorry! You can’t investigate me for all of this crap I’ve done because I’m a political opponent of someone, and we don’t- Ha! In this country we don’t do that!
The reason “lock her up” was terrible is because Hillary was not guilty of crime! She was cleared of criminal wrongdoing. I mean, we can go back to that, multiple investigations. And by the way, “lock her up.” When we talk about “lock her up” we’re being very charitable when we focus on specifically, as we’ve done on this show, the breakdown of “well, she may have done something slightly unethical with this server” or whatever, but the people chanting that it’s vaguely directed at that, but they’re also chanting it because they think she runs a pedophile child sex cult ring. That’s why that’s crazy, because they think she’s done all this stuff, they think she did all the Benghazi, Benghazi. They have no real information on what’s actually going on.
“Lock her up” was terrible because Hillary was cleared of all wrongdoing, and also the people chanting it were actually the ones guilty of a bunch of crimes that now you’re saying we don’t get to punish them for.
Andrew: I agree with that, and let me parse this a little more carefully. I think the underlying argument that Professor Eliason is trying to make here is it would be bad for a sitting President to use the Department of Justice to discredit their political opponents. For example, not even Bill Barr, the most corrupt Attorney General in American history, indicted Joe Biden or even Hunter Biden-
Andrew: -in like October of 2020.
Thomas: Which is surprising, actually.
Andrew: We can talk about that! I thought that that might happen. The fact that he didn’t shows that even for Bill Barr, weighing in in the middle of an election and instituting process against a declared political opponent, is a bridge too far-
Andrew: -even for Bill Barr.
Thomas: That’s not what’s happening here.
Andrew: Donald Trump supporters were calling for it left and right.
Andrew: “Indict Hunter Biden, indict Joe Biden.” But once you understand it that way, that really what the harm is, is using criminal investigations and prosecutions to gain political advantage-
Andrew: -over your opponent. Then you understand what a terrible analogy this is!
Thomas: Look, yeah! The campaign is over! We’re already past that part, Biden did not run on “lock him up,” we’re done with that!
Thomas: That’s gone, he will no longer be a political opponent. Yeah, you can throw in the 2024 thing but that wouldn’t even – he wouldn’t even be considered an opponent until after the primary- it’s gonna be a while. [Laughs] Long after all this will be done.
Andrew: Yeah. Well, and let’s look at the flip side. As you point out, there has to be some kind of practicable limit. I’ll say it this way, if Hunter Biden committed crimes it absolutely would be within the purview of the Department of Justice – let’s live in a bizarro universe in which Hunter Biden committed crimes and Donald Trump won the election.
Thomas: Who knows, he might’ve. I dunno.
Andrew: Yeah, who the – yeah. That’s exactly right. If Trump’s DOJ indicts Hunter Biden tomorrow and we look at it, we look at the press release and we say “okay, they went to a grand jury, they presented X,” fine!
Andrew: Right? Absolutely 100% fine.
Thomas: The way Randall is looking at it maybe is like more political than the way I’m looking at it. I’m looking at this as – and maybe this is where if we have any kind of Bernie left-type people who listen, I’m kinda on their side with this. We have a problem with corruption in politics.
Thomas: And the answer is not “well we better not go after their criminals because they might go after our criminals.” No! Go after all the criminals.
Andrew: 100%, go after all the criminals. I would say for guidance, we talked about this in episode 438, we talked about the 60-day rule. That is the federal prosecution of election offenses memo, page 84, which basically says, is guidance to the Department of Justice that says “you should not prosecute a candidate for election-related offenses within 60-days-
Andrew: -after the election. The reason, I wanna read a sentence from that that says “The Justice Department’s goals in the area of election crime are to prosecute those who violate federal law, and through such prosecutions to deter corruption of future elections.” That’s sentence one. In other words, prosecuting people who break the law is really, really important. [Laughs] That’s job one for the Department of Justice!
Then it says, “The Department of Justice does not have a role in determining which candidate won a particular election or whether another election should be held because the impact of alleged fraud on the election. In most instances, these are issues for candidates to litigate in the courts or to advocate before their legislative bodies or election boards.”
I think, again, this is an analogy but we’re all arguing by analogy here, I think what you would say is that stands for the principle of you prosecute crimes because that’s our job and also because it deters future misconduct. You don’t wanna get involved in, you know, putting your thumb on the scale to prefer Candidate A to Candidate B, and I think immediately after Candidate A has defeated Candidate B is the best possible time-
Andrew: -to objectively – again, I don’t wanna bring – bad prosecutions are bad prosecutions no matter what.
Andrew: But is the best possible time. I would add just as one additional mitigating factor, you can run for President from prison.
Andrew: I don’t – I mean that, I know that comes off a little bit flippant, but Eugene V. Debs did that. Being in prison supported his argument!
Andrew: Being in prison undoubtedly would support the Trumpers arguments about how he’s this, you know, rogue figure taking down the deep state. I mean, what better evidence.
Andrew: That argument never made sense when you were the President of the United States.
Thomas: Right, yeah, makes more sense as an outsider.
Andrew: Yeah, absolutely!
Thomas: You got to lay out your topline thing, I wanna lay out my topline thing.
Thomas: I thin it might help here. I don’t want a President Biden to go after Trump for the sake of punishing Trump.
Thomas: Again, I do not want to use the criminal justice system to punish political opponents. That is not – I want the criminal justice system to work. I want it to work! And I think a lot of people, I think this country, especially on the left, I really, really wanna feel like there are consequences again to things. I do not – this is driving me nuts that we’re even having this conversation ‘cuz we went through four awful years of just breaking every rule.
I know we’ll get to Professor Eliason’s other arguments, and I certainly agree with him where if it’s stuff that’s just norm-breaking, yeah! That’s not a crime, I agree with him there. We can’t lock Trump up for norm-breaking. Totally agree. But here’s what I want: I want not just like a, you know, quietly prosecutor or the Attorney General to go after Trump. I want some sort of, um, investigation, not just to see – to do several things.
For one, I wanna know everything that happened. I don’t know that we know everything that happened. I don’t know that we know all these crimes. When you bring up the examples that we already know, Mueller Report or maybe the Ukraine thing, sure. What don’t we know? Furthermore, I don’t wanna just look at Trump, I wanna look at Jared Kushner, I wanna look at everybody who was ever involved in that clown car. Steve Miller, all these people. I wanna know what they did, I wanna at least have the information.
As a voter I wanna have all the information of what they did presented by somebody – not Bob Mueller but somebody who’s actually, you know, maybe not a Republican, who does a full investigation, gives us an accounting, and it’s not just to punish them. It also is to tell us, to make recommendations to Congress for what we need to fix going forward! A full report of, “okay, here’s how everything was broken during these four years, let’s make some recommendations as to what we may need to fix, what laws we may need to pass, and yes along the way if there is any outstanding criminal behavior that still needs to be punished, recommendations perhaps somewhere along the line there too.”
There’s a lot we need to accomplish with this, it’s not just going after Trump because we’re mad at him.
Andrew: I endorse that 100%, and I think that really covers the next two arguments that Professor Eliason makes. I wanna outline them because, in the interest of honesty, but I don’t think we have much more beyond what you’ve just said to say about them. Argument number two is you don’t prosecute for violations of norms or for sleezy but noncriminal behavior.
Andrew: He throws in the example of emoluments.
Andrew: This is, I think as you just point out, simultaneously an excellent point and a terrible one at the same time. It’s an excellent point that much of the stuff that Donald Trump has done he’s going to get away with regardless of what we do. All of the emoluments stuff is not a crime even though it should be.
Thomas: But wouldn’t you like to know the extent of that and perhaps if there’s some way to make that a crime going forward?
Andrew: I 100% agree that we need to know. I really think this is – [Laughs] You’ve independently arrived at this argument, but you will see it in my notes on this show. It is, I think, the very best argument which is you proceed on multiple tracks-
Andrew: Including criminal prosecution and investigation in the House of Representatives because figuring out what Trump did is the best way for us to figure out how we can craft laws so that we’re not saying this again ten years from now, so that we’re not saying boy, all this stuff that we thought was really bad when Trump did it but wasn’t a crime then would still not be a crime ten years in the future if we can’t figure out how to stop it. If this isn’t a signal flare for us to figure out exactly what was done so that we can change the rules, so that we can make all of that a crime to the best of our abilities then, yeah, we’re not learning. Then we can’t protect norms and we can’t protect ourselves against behavior that should be criminal but isn’t presently. I agree with that 100%.
I think that transitions into Professor Eliason’s third argument. This one is, I think, the hardest to justify. The most that I would call an own-goal, which is “Well, the House didn’t impeach over the Mueller report.”
Andrew: So, you know, it’s over. No harm, no foul. I wanna say, the reason I say own-goal is it is precisely because the average – Randall Eliason knows exactly – we had him on the show – he knows exactly what Volume 2 of the Mueller Report shows. He knows precisely that it shows at least nine separate-
Andrew: -individually identifiable crimes committed by Donald Trump in obstructing justice to cover up various aspects of a hostile foreign power interfering with the U.S. Presidential election. The fact that Donald Trump could get up on the debate stage in October and say “Mueller report cleared me, no collusion.” That’s why we need prosecutions based on it! To say “no, you were … Bill Barr criminally misled the American public.”
Andrew: I’m using that in the potential literal sense of the word, as to what’s in the Mueller Report. In my view that is the strongest argument to prosecute, is the fact that we didn’t impeach because people were confused.
Thomas: Yeah, I hear you. Plus, if the argument goes – I get it, again, fully granting that some of this stuff is norm breaking, some of this stuff there should have only been political consequences. Agreed, we’re not gonna go after prosecuting Trump for stuff that, like, he should have just been impeached for it. Not everything, just saying you should’ve been impeached for it, even if you go through that process, and because Republicans control the Senate we never got to even, you know, have a vote on some of it and other stuff. He was cleared by the Senate. That just means you still got to be President, I don’t know that that means you weren’t guilty of anything, does it? Do we just replace-
Andrew: It does not function as an acquittal, that is 100%-
Thomas: I think that’s what I’m trying to say without those words. [Laughs]
Andrew: [Laughs] Now we get into – I think this is the best argument that Randall Eliason makes. I think it’s wrong, but I think its one about which people of good will can disagree.
Thomas: Oh, here we go.
Andrew: That is the agenda setting theory. Again, I’m gonna quote it word for word and then we can talk about it. “Criminal investigations would guarantee that the next few years continue to be all about Trump. They would suck up all the oxygen and detract from Biden’s message and policy agenda. We would remain bitterly divided, with half the country convinced that Trump is being subjected to another political ‘witch hunt.’ We can’t move forward if we spend the next four years re-litigating the past four.”
Thomas: I think perhaps my biggest response is to, I dunno, I guess it would be the last argument, then, but as far as this goes, I think you’ve covered it well in that this is more about how you approach it than anything else. This is – first off, we are going to be divided no matter what. There is no action that Biden is going to take, there is nothing that Democrats are going to do that is going to magically unite the country among two groups of people, one of which thinks masks protect lives and science is real, and the other wants to kill people by not doing anything over the virus.
We are fundamentally divided in this country. I know that Presidents need to campaign, I know that Biden had to campaign on the idea of, you know, healing the country and let’s move forward, I get it. I get that you have to say that and maybe that you even have to try, it’s not reality. It just isn’t. Taking, you know, essentially for granted that we are going to be divided no matter what, because, by the way, half the country will still think that Biden isn’t the President.
Thomas: There’s nothing [Laughing] he’s gonna do that’s gonna fix that, in my opinion. In terms of agenda setting, I mean I do think it matters whether or not we have the Senate, I think that’ll be a big part of it, but look, there are a lot of people in government. [Laughs] There are a lot, it’s not as though we do one thing, I think this is more about how you make speeches about the thing than it is the thing. I would love to see Joe Biden present kind of what we’ve already presented, Andrew, which is “here’s what we want to accomplish with this.”
Okay, look, Professor Eliason, I get that we don’t want the next four years to be focused on Trump, but to put it the other way, we just went through four hellish years, the ultimate thing that happened at the end of it was 300,000 Americans dying. I think we need to know what went wrong, and I think we need to know how to maybe fix it going forward. I think it’s worth our time, I think it’s worth a little bit of our time to say “hey, maybe how could we have prevented this? What other safeguards could we put in? What could we do?” And, by the way, if there was any outstanding crime that wasn’t punished, I would love that to be punished for the sake of avoiding the next time this happens.
Andrew: Yeah, and that, I think, everything you just said dovetails with the fifth and last argument, about which I feel very strongly and am about to discuss. But I wanna talk to the agenda setting point for a minute and sort of separate that out. The response you made, if we had Alex on to talk about high school debate-
Andrew: Is a classic high school debate response, and that, in shorthand, is called “non-unique.” It is to say, the thing that you say is a bad thing that will happen, is going to happen whether we do this other thing or not.
Thomas: Hmm. Yeah.
Andrew: Typically, high school debate, the affirmative is presenting a plan, saying let’s do X, then the negative will get up and say “oh, if you do X, Y is gonna happen,” and then the affirmative will get up and be like “yeah, Y is bad, but you know what? Y’s gonna happen whether we do the affirmative or not.” I think that response on agenda setting is exactly correct here, it is non-unique. Trump and his moron supporters are going to spend the next four years complaining that they were railroaded anyway, and to the extent that there’s anything that makes the argument unique, what makes this potentially incline ever so slightly the other way is doesn’t not prosecuting Trump, in some way, validate that narrative?
Doesn’t it give them the opportunity to say “see? We told ya this was all a witch hunt!”
Thomas: Yeah, no kidding.
Andrew: “Because once they put their people in charge, they looked at it-
Thomas: They didn’t do anything.
Andrew: -and they didn’t indict anyway!”
Andrew: Republicans didn’t indict, Democrats didn’t indict, what are you talking about, you conspiracy theorist loons on the left?
Andrew: Who thought that there were crimes that took place. Again, I don’t know that I think that inclines very strongly? I could see it just being a wash. But I don’t know, I don’t see how this is an argument not to prosecute.
Andrew: I think you’re gonna have to deal with Trumpers regardless, and I think one of the effective ways to deal with them is potentially to have indisputable evidence come out at a time where some – [Laughs] Again, this goes back to the central and incorrect thesis of Yodel Mountain. The central incorrect thesis of Yodel Mountain was there is a point in which the political liability of a Republican being affiliated with Trump exceeds the political benefit. We found out, for whatever reason, and I have some thoughts on why this was, but I was surprised by this, by the iron grip that Donald Trump had over pretty much the entire Republican party in a very, very short period of time.
Andrew: That calculus was always pro-Trump while Trump was in office. I have to think -I could be wrong. I’m flagging, I was wrong the first time, I could go 0 for 2 by doubling down. I have to think that political power is loosened now that Trump is no longer in office. There are lots of good reasons to think that. You know, you have more of an opportunity to shake loose Republicans to corroborate your evidence than you did while Trump was President. T
That would be, I think, my response to the agenda setting stuff. It’s a little bit adjacent, it is – I think the main question is can you walk and chew gum at the same time? Maybe you can’t if you want to do something big, but even if we retake the Senate, even if we get both runoff races in Georgia, which you and I are doing everything in our power to help Joe Biden do, his agenda in the first two years will, of necessity, be very, very modest.
Thomas: Yeah. Imagine if we don’t, you know. You talk about walking and chewing gum. If we don’t take the Senate we’ll be all out of gum, we’ll just be the walking part of whichever you think. We’ll have nothing but time to deal with this.
Thomas: I don’t know if I’ve already explicitly said this, or let me know what you think on this. Even if I were to go with Professor Eliason’s arguments here, even if I were to say ultimately – which I don’t, by the way – but even if I were to agree, ultimately, we shouldn’t prosecute Trump for certain things, shouldn’t we at least know what we’re not prosecuting him for? Shouldn’t there be – like with Hillary and the email thing. Now I don’t think – I think what James Comey did sucked, especially because it was right before an election and also there was the Comey letter that was terrible.
Thomas: Yeah, that was terrible. But if they do a thing that’s like “okay, we’ve done a full investigation of all this stuff, here’s what Trump did, and here’s how it might be a crime,” then we leave it up to the career prosecutors, as you say. If they say either there’s not enough evidence or we just don’t think it’s in the interest of the people to go after him for this, then at least we can make it explicit that you are utilizing prosecutorial discretion or whatever. I wanna at least know. Maybe Professor Eliason agrees with that, I dunno.
Thomas: I’m not sure if this is going against him. At least as a citizen of this country who has been gaslit for four years, I would like to know the truth.
Andrew: I could not agree more, could not have said it better myself, so I won’t.
Thomas: I have to talk about this idea of healing.
Thomas: Of healing the country. Is that the last argument? ‘Cuz that’s what I had notes on.
Andrew: Right before that sentence I have what I think is the last structural argument. We’ll call the healing the sixth argument.
Thomas: Okay, yeah.
Andrew: The fifth argument, and this is the one that – I don’t want to be phrasing this uncharitably, but I have this under the category of “what Trump did wasn’t that bad.”
Andrew: I wanna read the quote. Again, admittedly that’s spin, here’s the quote: “This policy of not prosecuting a former president can’t be an absolute rule, of course. If the president murdered someone in the Oval Office or sold our most sensitive intelligence to an enemy, it would be unimaginable to say that president is immune from prosecution. But the bar has to be very high, and absent some new revelation, Trump’s actions — as appalling as they have been — don’t clear that bar.”
I was kind of shocked to read this.
Andrew: Because, and I’m gonna focus on just one thing, and that is [Laughs] I’ve talked about this a lot, Thomas you know that this is coming, our listeners probably know this is coming. Volume 5 of the Republican Senate Intelligence Committee Report. That discusses, in detail, I know because I did a CTRL+F for this, Konstantin Kilimnik, Russian intelligence operative, appears 826 times in that report.
The reason Konstantin Kilimnik appears 826 times in the Republican Senate Intelligence Committee Report is, and here I’m gonna quote from the report directly, that “Prior to joining the Trump Campaign in March 2016 and continuing throughout his time on the Campaign, Paul Manafort directly and indirectly communicated with Konstantin Kilimnik,” (known Russian intelligence operative) “Oleg Deripaska,” (pro-Russian business oligarch in Ukraine) “and the” (other) “pro-Russian oligarchs in Ukraine. On numerous occasions, Manafort” (and I don’t know why they have this with this kind of weasel words, but again, these are Republicans) “Manafort sought to secretly share internal Campaign information with Kilimnik.” I would tell you, we know from the Mueller Report, shared–
Andrew: Sensitive, internal polling data. We’re gonna go on: “The Committee was unable to reliably determine why Manafort shared” Again, we have a conflict between how they wrote those two sentences. They said “oh, he sought to give them secret stuff. We don’t know why he did the thing that we just said. “The Committee was unable to reliably determine why Manafort shared sensitive internal polling data or Campaign strategy with Kilimnik or whom Kilimnik further shared that information.” Let’s say that’s true. I’d kinda like to know.
Andrew: “The Committee had limited insight into Kilimnik’s communications with Manafort and into Kilimnik’s communications with other individuals connected to Russian influence operations, all of whom used communications security practices. The Committee obtained some information suggesting Kilimnik may have been connected to the GRU’s hack and leak operation targeting the 2016 U.S. election.”
Then there’s a redacted section, and after the redaction it says, “After the election, Manafort continued to coordinate with Russian persons, particularly Kilimnik and other individuals close to Oleg Deripaska, in an effort to undertake activities on their behalf. Manafort worked with Kilimnik in 2016 on narratives that sought to undermine evidence that Russia interfered in the 2016 U.S. election. Then there’s another redacted paragraph.
Let me boil that down. We have indisputable evidence that, at the highest levels of the Trump campaign, that there was two-way communication. That the Trump campaign shared sensitive polling data and strategy with Russian intelligence operatives, and that Russian intelligence operatives turned around and shared dirt on Hillary Clinton with Donald Trump Jr. and the Trump campaign. We also know, from the five-volume Senate Report that runs to thousands of pages, that these efforts are ongoing, and I would say wildly successful beyond the wildest dreams of Vladimir Putin, to undermine American confidence in democracy itself.
That’s what dictators want, they want people to say “eh, well, voting is just a different kinda way to put some other scumbag in charge.”
Andrew: Oooh, whatever, it’s all the same, it’s all part of – all of that stuff and rhetoric is designed to blur the line between democracy and autocracy, and I value democracy. I think this is as important a national security issue as you could possibly imagine, and saying we don’t want to look at it, it’s … I’m surprised.
Thomas: Well this is interesting because I – when I’m even going through this, I am thinking way less about the Mueller Report than I think you are, which maybe I’m wrong, but I don’t think we’ve had a Mueller Report for the coronavirus. I want a full investigation of what in the world happened, what this administration did, could it be, by the way, they may have – there was reporting that they thought it was just gonna kill, you know, minorities and people in blue states or whatever the most so they just didn’t do anything.
I don’t know for sure that there will be criminal, prosecutable offenses in there, but I sure would like to know for sure what happened before I say one way or the other. I would like a full investigation of what went on. 300,000 – what are we at, 260? But that’s the official count, you know, it seems as though the number of people who’ve actually died is gonna be a lot higher than that probably, most likely, and by the way we’re hitting the highest waves of this thing right now and the death will be a lagging indicator, as they say, so it’s going to be even more people having died from this entire catastrophe, and I wanna know what happened.
Andrew: I think that’s really, really interesting. Let me throw that out there, I don’t know if Professor Eliason would disagree, for example-
Andrew: That we ought to have a special subcommittee of the House convened on January 4th to investigate the Trump administration’s handling of COVID-19.
Andrew: I don’t know that those actions ultimately at the end of the day are potentially criminal.
Thomas: Right. Yeah, I could see plenty of room for like, well, it’s a political decision, you can’t prosecute somebody, sure. Yeah.
Andrew: Yeah. But I agree with you, and he may as well.
Andrew: Again, we’re gonna extend the invite to ask him to come on the show, maybe he will.
Thomas: Okay, fair enough, and maybe he will agree, but I think the article that needs to be written at this particular moment is not “let’s move on.” It’s “let’s find out what the hell happened” first, before the article about “let’s move on.” That’s all I’m saying. Maybe that’ll be a question of tone?
Thomas: You know.
Andrew: Well, and it’s a question of priorities, too.
Thomas: Yeah. The last thing I have to bring up is, final thoughts on this, it is very frustrating to see any claims about how prosecuting past Presidents wouldn’t be in the public’s best interest or, you know, for the sake of healing the country, given that the last 40 or 50 years shows us the exact opposite. Pardoning Nixon didn’t heal the country. George H.W. Bush pardoning Reagan’s Secretary of Defense over Iran Contra did not heal the country. That didn’t fix it. Not going after anyone in the Bush administration over starting a bullshit war that killed 288,000 people, that didn’t heal the country. It might be some people moved on, “oh, I’ve moved on.” A lot of people didn’t move on from these things. A lot of people are dead as a result of that last thing. I don’t think it heals the country.
I don’t think the evidence of history shows that it actually works out great and is better overall if we just don’t punish horrible people who do horrible things while they’re in power. What does that accomplish? Was the country really unified under Obama because of not going after anyone in the Bush administration? Or did we get absolutely crushed in 2010 and there was birtherism and there’s all this crap, you know? Come on.
Andrew: I think you’re right. I didn’t even flag the “it heals the country” as an argument because I think it is obviously historically false.
Thomas: Apologies, I’m a little hot under the collar over this one.
Thomas: It’s just been a tough four years.
Thomas: You know, and I keep thinking about – there’s that movie where the example of gaslighting actually comes from, you know. Wasn’t it something like a husband’s trying to make the wife think she’s crazy and keeps turning on the gaslight, I think it’s something like that, and it’s like what if at the end of that thing they’re like “well, your husband was a murderer, but you know, for the sake of unity we’re not gonna prosecute him.” [Laughs]
Thomas: Poor gaslit wife is like “what?! Come on!” That’s how I feel. I dunno if I got that all exactly right, but that’s my memory of where the origins of gaslighting. It doesn’t heal, it doesn’t fix things to not go after them. Justice makes things better. What’s gonna make the country feel better is the people who still respond to facts – because the people who don’t respond to facts or don’t have the facts, they are unchangeable. We can do our best long term but they are not getting factual information about what we’re doing, so what we do doesn’t matter to them, because they do not get facts about what we do.
For the people who do receive facts about what we actually do, I think what will help them is a full investigation and knowing what went wrong and what we might do, even if it’s not a prosecution – I kinda think there should be somewhere, but even if not, prosecuting individuals, and not just Trump, by the way, people who were a part of this, everybody who was a part of it who did something wrong, did something criminal, but even if somehow there’s not a prosecutable offense in all of it, knowing what they did and trying to prevent it in the future via a full investigation is what would really help me as a voter and as a citizen of this country going forward.
Andrew: I wanna play the inspiring flag waving music behind you.
Andrew: No, I agree.
Case Closed – Roman Catholic Diocese v. Cuomo
[51:52.3] [Segment Intro]
Thomas: Alright we have just enough time, barely, for the wild card Andrew. We did it. That was almost my fault for going too long, sorry!
Thomas: Alright, let’s hear about this terrible Amy Coney Barrett decision and what it means going forward.
Andrew: Yeah, we don’t know that it was an Amy Coney Barrett decision. The case is Roman Catholic Diocese v. Cuomo. A couple of things about it, first this is a decision granting a preliminary injunction. It is not a decision on the merits, but Thomas, as you well know and as I think all of our listeners now know because of how often you reiterate it, the predicate legal finding to grant a preliminary injunction is that the applicant has demonstrated a likelihood of success on the merits.
Andrew: It pre-judges the merits even though this is not a merits determination. This is the case that will effectively overturn Employment Division v. Smith, that says religious people do not get special exemptions to generally applicable laws just because they are religious and because they have brought a free exercise claim. These are free exercise claims brought by first the Roman Catholic Diocese, consolidated with Orthodox Jews, protesting generally applicable neutral laws – not – neutral regulations, promulgated in New York regarding assemblage during COVID in particular zones. The case is indefensible from start to finish, and we’re gonna get – speaking of friends of the show, we’re gonna get our buddy Andrew Seidel on-
Thomas: Oh, yeah, awesome.
Andrew: -to break this down and we will get him, I think at his angriest. This is – everything you are seeing in the news is not hyperbole. This is an indefensibly bad decision on every single level. Let me add, it includes, for example, an offhanded citation in a footnote that compares, disfavorably to the New York regulations, to what they describe as a neutral rule like the one at issue in Trump v. Hawaii. Trump v. Hawaii, I shouldn’t have to tell you, is the Muslim ban case.
Thomas: Oh right, yeah.
Andrew: Yeah. This is a per curiam, 5-4 opinion, probably written by Amy Coney Barrett.
Thomas: Sorry, I didn’t mean to suggest this was her opinion, I just meant it was 5-4 with her on the court, so it was, yeah.
Andrew: With her providing the swing vote.
Andrew: But I think it is, a lot of people have speculated that she wrote the per curiam opinion.
Andrew: I would join with that because it is incredibly stupid.
Thomas: What’s with these cowards and their per curiam opinion? Why don’t they just come out with it?
Andrew: Yeah, we will talk about that with Andrew Seidel.
Andrew: It’s incredibly badly written, and it reads the way somebody who has only been a judge for a couple of years and isn’t very good at this would write.
Andrew: I’m serious.
Andrew: It lacks the distinctive characteristics of the other justices. I could be wrong on this.
Andrew: It could be a Kavanaugh opinion, it could be a sedated Clarence Thomas opinion I suppose, but I think this is a Barrett opinion. In any event, we’re gonna break it down in a lot of detail, but it’s-
Thomas: It’s bad?
Andrew: It’s super-duper bad.
Thomas: No misreporting there.
Thomas: This is as bad as you’re seeing. Okay.
[55:52.2] [Patron Shout Outs]
Thomas: Alright, that’s our show, thanks so much for listening and we’ll see you for Rapid Response Friday!