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Topics of Discussion:
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 444, what a cool number, Andrew!
Andrew: [Laughs]
Thomas: It was all just to get to 4-4-4. That was the whole plan, then we can shut it down. How’re you doing?
Andrew: [Laughing] Well I was fine up until you wanted to shut down my show!
Thomas: [Laughs]
Andrew: Now I’m a little sad, but-
Thomas: Alright, you know what? We can go to 8-8-8. How about that?
Andrew: Okay, alright.
Thomas: That’s also cool.
Andrew: Excellent! Total agreement.
Thomas: Although I think I’ve noticed that the iTunes numbering or whatever, it does max out at 999 so I dunno.
Andrew: Oooh.
Thomas: We’ll have to – that’s a long ways from now. That’s into the next administration, so we’ll see what we wanna do then.
Andrew: Opening Arguments the Sequel, just the Spaceballs.
Thomas: 2.0, or the next generation.
Andrew: Oooh!
Thomas: [Laughs] That’s Phoebe and Alex’s show.
Andrew: [Laughs] Hey, we gotta get them set up with a show.
Thomas: They will! Well, I mean, I keep forgetting – in my mind Alex is still 12, but he’s actually like a full-grown adult now.
Andrew: Yeah.
Thomas: Now that show is a little less good. [Laughs]
Andrew: [Laughs]
Thomas: Unless he likes doing a show with a toddler, hey it could be funny. Could be a good comedy.
Andrew: [Laughs] The debater and the baby, that would be-
Thomas: [Laughs] [Sighs] Oh, man!
Andrew: [Sighs]
Thomas: We have so many announcements to get to, never have I seen so many bullet points but just in the pre-segment, so we’d better get started.
Andrew: [Sighs] Yeah. Yup.
Thomas: What’s coming up?
Andrew: A bunch of different announcements. First, a heartfelt thank you to all of our listeners-
Thomas: Oh, yeah.
Andrew: -who participated in our fundraiser to save democracy. We-
Thomas: Did we save it?
Andrew: Collectively – you know, polling numbers… I know, they’re polling numbers. I posted polling updates out of Georgia and, like, 85,000 listeners sent me-
Thomas: That would’ve gotten a block from me. I didn’t see it.
Andrew: [Laughs]
Thomas: Yeah, I’m done with the polls. I don’t wanna hear it.
Andrew: Fair. Right, it is all – it’s 100% gonna be turnout and that’s why raising funds for the Warnock and Ossoff campaigns – we raised over an eighth of a million dollars, Thomas! Not just us, OA listeners, just about $40,000 dollars, which is-
Thomas: Yeah, incredible.
Andrew: Unbelievable and incredible and-
Thomas: I was blown away; we were on cloud 9.
Andrew: Yeah!
Thomas: Thanks so much for showin’ up and saving democracy, doing our best. That was, wow! What an experience that was.
Andrew: Yup.
Thomas: Then I guess some fundraising happened after that, we’re not gonna talk about.
Andrew: A little, but I kinda zoned out.
Thomas: [Laughs]
Andrew: [Laughs] Yeah. Look, I’m okay. The only good thing about being beaten is that was more money that we raised-
Thomas: Exactly.
Andrew: -for Democratic candidates.
Thomas: Unless we lose the two races in Georgia, then it’s all just I’m sad we got beaten by-
Andrew: Yeah, then I wish we had done, you know-
Thomas: We’ll have to plot our revenge in some other way, I dunno.
Andrew: Oh, Jill Stein full grifter.
Thomas: [Laughs]
Andrew: We promised to donate this to the Warnock and Ossoff campaigns if they win, otherwise.
Thomas: Yeah. [Sighs] Ugh.
Andrew: This was all – it was through Act Blue and everything else. I’ve reached out to those campaigns, so stay tuned, because I’d love to see if there’s another way we can help. But thanks to all of our listeners who made that happen.
Okay, second, lots of people have asked. We are going to have our buddy Andrew Seidel on Tuesday to talk about the New York Cuomo decision.
Thomas: Oh yeah.
Andrew: And to break it down. It’s as bad as you think. If you want – it literally is five minutes, it’s kind of amazing. Yesterday’s Scathing Atheist I did a couple of minutes with Noah kind of talking about what the case means, so if you can’t wait until Tuesday when we have literally the country’s foremost expert in these cases on to talk about it, you can hear me for about six minutes on Scathing Atheist.
Next up, super important announcement, had to put it on the whiteboard because I didn’t wanna forget, but congratulations to all of our OA listeners who took the bar exam and got back passing results!
Thomas: Oh, thanks man!
Andrew: Yeah, yeah!
Thomas: Oh, the liste-
Andrew: The listeners, not cohosts.
Thomas: Me too, though, right?
Andrew: Did you get your passed note?
Thomas: Sure.
Andrew: Those came out.
Thomas: Ah.
Andrew: Those came out this week.
Thomas: It’s probably somewhere with my Hogwarts letter.
Andrew: Yeah. [Laughs]
Thomas: Any minute.
Andrew: There’s like an owl skeleton somewhere in your closet.
Thomas: [Laughs]
Andrew: [Laughing] It’s the downside-
Thomas: Stuck in my, like, fake fireplace. How do they come in? Yeah, I don’t remember. It’s been a while since I’ve seen Harry Potter or read the book.
Andrew: [Laughs]
Thomas: Yeah, congratulations to those who actually passed the bar!
Andrew: Yeah, congratulations! I’m gonna [Laughing] skip over item number four.
Thomas: Oh, item number four is very important to me. Okay, so, everybody, I was asked to add an item to the items list and when I went to do that, which was item number four of course, I realized that Andrew had been putting two spaces after the period after four? That put me in a real moral quandary. This was an ethical – I know we talk law but, you know, a lot of our show is also ethics. Ethically what do you do when you see somebody who started a list with two spaces after the period? I can’t just put one space after the period, then the whole list looks weird. You know? Two pressures. On one hand, Andrew, what year are you living in? It’s only one space after the period! Come on, boomer!
Andrew: [Laughs]
Thomas: On the other hand, you have a consistent three items, I can’t do a fourth item that’s different! [Groans] Ugh, ooh! So that was awful, I’m sad you put me through it. You know what won out, everybody? Boomers won! The boomers won. I was forced to do two spaces after the period in the list.
Andrew: [Laughs]
Thomas: This is critical show material, you’re gonna hear from our listeners, my friend. You’re gonna hear it.
Andrew: [Laughs] I will tell you, Morgan Stringer and I have this exact same dueling banjos when we send drafts of-
Thomas: [Sighs]
Andrew: -documents and pleadings back and forth.
Thomas: Is there a support group for people and associates and cohosts who you’ve made use two spaces?
Andrew: [Laughs]
Thomas: Because they didn’t want to ruin the nice-looking list?
Andrew: I will tell you what she does is just passive aggressively inserts one space after every period.
Thomas: Yeah, I thought about that.
Andrew: Until I’m forced to either correct mine or-
Thomas: [Laughs]
Andrew: Do something, correct hers in order to conform it, but that-
Thomas: Jeez. Well, we’ll do – you know what?
Andrew: You have a flanking maneuver.
Thomas: This is just the announcement segment, folks, we will do a deep dive. We’ll get Morgan on; I imagine we’ll have to do like the witness protection voice thing for her. [Deep Fake Impression] Oh, yes, he made me do two spaces.
Andrew: [Laughs]
Thomas: That kind of thing? We don’t wanna-
Andrew: An unnamed associate at The Law Offices of P. Andrew Torrez. [Laughs]
Thomas: [Laughs] They’re like “there’s only one associate…”
Andrew: Well, you know, it is still – we value her confidentiality.
Thomas: [Sighs] Uh. So, the real item that I guess I’ll get to know is that the Q&A!
Andrew: Yay!
Thomas: You know, because of that fundraiser we were a little late, so apologies, but we’re still doing our Q&A that we do every month. That will be on Monday, December 7th. This time it’ll be 3 pm Pacific, 6 pm Eastern. Again, Monday the 7th. Get your questions in that Patreon thread, it should already be up by now and it’ll be a ton of fun, I can’t wait.
Andrew: Yeah! Those are always great fun, and as always anybody can attend the live Q&A’s. They’re on our YouTube stream. If you’re a patron the benefit is you get to go and submit the questions and vote up the ones that you want to see addressed. That’s the way that works.
Thomas: Alright, woah, we got through those bullets pretty well, actually. Number four needs further conversation, but for now we got through ‘em.
Andrew: For now.
Thomas: Let’s get to our show.
Election Certification Update
[9:25.0] [Segment Intro]
Thomas: It’s over, beast. [Laughs]
Andrew: [Laughs]
Thomas: The presidency is Joe Biden’s. What’s the status of certification, Andrew?
Andrew: Yeah, so as we have been telling you – I’m gonna include the link in the show notes to Ballotpedia, but we’ve now passed the certification deadline for all of the (quote) “contested” states, that is the six states that were close that Donald Trump decided that he was gonna be able to overturn the results in. No! We told you he wasn’t going to be able to, he didn’t. They have now all certified, the last major set of certifications came in earlier this week when Arizona certified on Monday, November 30th, not even any delay.
Thomas: Hmm.
Andrew: There’s the public footage of the Arizona governor shutting off his cell phone with the White House calling, literally as he’s signing the certification.
Thomas: [Laughs]
Andrew: That was November 30th.
Thomas: Wait, for real? This is a real thing.
Andrew: This is 100% a real thing–
Thomas: Oh, I missed that.
Andrew: if you haven’t seen it.
Thomas: Wow.
Andrew: Yeah, his cell phone plays “Hail to the Chief.”
Thomas: [Laughs]
Andrew: It’s the White House calling and he’s turning it off.
Thomas: Oh my god.
Andrew: Then the next day was December 1, when Wisconsin certified. Yeah, this has been – we get it, it’s been a month of us telling you “chill out,” but chill out! It’s all good!
Thomas: Yeah, oh my god. The circus never ends, though.
Andrew: Well, that is-
Thomas: I know the circus doesn’t seem to be on our agenda, which is fine because it’s a freakin’ circus, but the people. The crack legal team, I mean it really must be – you know what? Lawyers need a little more credit right now. [Laughs] I know lawyers are the butts of every joke and oh, it’s, you know, all the lying jokes, all the stuff about lawyers, but it turns out there’s only a few lizards who will do this level of trying to steal an election and just the garbage that Sidney Powell and Rudy Giuliani. Who’s the new one? Jenna Ellis, I think? Is that her name?
Andrew: [Laughs]
Thomas: Yeah.
Andrew: Jenna Ellis who’s like 27-
Thomas: Yeah!
Andrew: -and has never, you know. Yeah.
Thomas: You know what? Credit to lawyers. You guys take a lot of crap, a lot of it justified. [Laughs] No offense, Andrew! But you know, it’s a good sign for lawyers and the law that there’s only a handful of just true ghouls that will even try to do this stuff.
Andrew: Yeah. Again, we saw that coming in advance. We flagged for you as real firm after real firm began withdrawing from these laughably transparently idiotic lawsuits. Look, this is a recurring theme on this show. There is a lot of work left to be done. At the same time, Donald Trump was not able in four years to break all of our institutions. He broke a lot of them! But, you know, not everything is irretrievably broken and it’s part of the justification for being Optimist Prime.
Thomas: Um, is it just – I was just curious, switching back. Is it just a coincidence the State Certification order? I looked at the total the other day and I was like oh man, Trump has way more certified votes or whatever, electoral college votes, and you know, you already mentioned this, but it seems like the bigger blue states have a later date than a lot of these swing states, which you would think would need more time with how close they were and stuff. Is that just purely state by state coincidentally when they’ve decided they wanna certify?
Andrew: Yeah, mostly it sort of tracks with size.
Thomas: Ah.
Andrew: If you’re a ballot counter you don’t know if you’re counting close ballots.
Thomas: Right. Right, right, right.
Andrew: It’s just volume that’s coming in. That’s why California is the latest, December 11th. But there is some weirdness in there, and it does skew – there’s a [Laughs] blue skew, Maryland’s certification date is December the 8th, I have no idea why you would need to make it that late, that makes no sense whatsoever, but yeah. There was a blue skew in terms of how the deadlines were set, that’s just set by each state’s legislature. There we go.
Thomas: Alright, well, there you have it. In terms of, you know, there’s nothing left, we’re all done. [Laughs] It’s the states that were close, or tossups or whatever, certified, it’s just a question of all the other states that are not even close certifying and then we’re good.
Andrew: Yeah, and look, we’re good when the electoral college convenes and those votes are actually counted, but the significance of certification is that’s what takes effect unless you can get, you know, a court or somebody else to say something to the contrary. That’s now the default position that’s in place.
Thomas: Mm-hm.
Andrew: Which is way stronger than just “we haven’t done anything yet, it’s all up in the air.” One of the defining aspects of Bush v. Gore, the strongest argument in Bush v. Gore, was Florida had already certified, yes there was a recount underway, and the idea was the recount would complete and then transmit the results back to Florida which would then be able to amend or revisit their certification.
Thomas: Mm-hm.
Andrew: And the Supreme Court was like “no man, it’s too late. Time’s up.” The fact that you have that default in place means, as you look at these idiotic lawsuits going nowhere, it’s not just there’s a blank that hasn’t been filled in yet. There’s a line that’s been filled in, and it has been filled in for Joe Biden. You know, erasing it and writing in Donald Trump is way harder than just filling in Trump, which again was gonna be super-duper hard to begin with. That’s part of the additional level of protection it provides.
Our most panicky, tinfoil hat-wearing listeners [Laughs], you can still construct a scenario, but it’s not gonna happen. It’s not gonna happen, that’s what we’ve been telling you for a month, we’ve been right for a month, we’re still right now, we’re gonna be right a month and a half from now.
Yodel Mountain – Challenging Corrupt Pardons
[16:31.5] [Segment Intro]
Thomas: We’re still yodeling here, Andrew!
Andrew: [Laughs]
Thomas: Because you know, he’s still technically in the office and he’s still committing crimes, likely every day. What are we yodeling about today?
Andrew: We are yodeling about a thing that I mentioned offhandedly as an example of-
Thomas: [Laughs]
Andrew: -something that couldn’t possibly happen.
Thomas: Yeah, never do that, you foolish man! [Laughs]
Andrew: Let’s be clear about this, people have been asking, and we have discussed pardons on this show a lot. Our deep dive was Episode 90, it’s called “Pardon Me” in which I take the stance that Donald Trump can, in fact, pardon himself. It’s certainly not a popular position to take right now, but I stand by it for all the reasons I give in that episode. Folks have been asking – well, obviously the Flynn pardon is corrupt, and we’re gonna talk about that in a minute. “What’s the process to challenge the Flynn pardon in court?” Or any other corrupt pardons.
Thomas: Step one, build time machine.
Andrew: [Laughs]
Thomas: Step two, go back before, vote for Hillary.
Andrew: That’s kind of what I’ve been saying, which is there isn’t a mechanism for challenging a pardon as being corruptly delivered, but when pushed to the furthest extremes, what I will say is the process of relying upon a pardon is what we’re seeing in the Flynn case. Michael Flynn, through his lawyer, the omnipresent Sidney Powell has moved to dismiss the case, now not pursuant – the government moved pursuant to Rule 48(a), Michael Flynn has moved to dismiss because under the terms of his motion to dismiss because the court lacks jurisdiction.
Thomas: Mm-hmm.
Andrew: Lacks subject/matter jurisdiction because there is no longer a live case or controversy because there is nothing the court can do because Michael Flynn has a full pardon. In fact, that is how – if you are the recipient of a pardon, when we say things like “your pardon must be accepted,” this is part of what we mean by that. We mean you have to go to the court and hold up the pardon and go “see? I got this thing, now you have to let me go.”
The answer in the extreme of “can you challenge that?” Well, sure, I could come up with hypothetical scenarios under which you can challenge it. One is The Simpsons. [Impersonation] “Mr. Simpson this pardon is written on a cocktail napkin.”
Thomas: This pardon is written on a Tweet! And you capitalized it inappropriately for no reason.
Andrew: [Laughing] Right! If you forge a pardon-
Thomas: Yeah.
Andrew: -that absolutely seems like the kind of thing that you could litigate. Then I was asked over Twitter “well what if you bribed the President to get a pardon?”
Thomas: Uh-huh. Yeah, we’ve talked about this before with somebody, I’ll probably remember who, but there has to be some basic level of review that someone does, right? I mean, and then it’s just a question of how far can that go. Is that just dotting the I’s and crossing the T’s or is it “well this looks like this is maybe super- the other extreme example would be this is super corrupt and you were in cahoots with this person so no you can’t pardon them.”
Andrew: Yeah. The answer to that question is we don’t know because this is a thing, and again, recurring refrain for this show, that not even Richard Nixon tried to do.
Thomas: Yeah. Well of course, yeah, Gerald Ford did it for him and then the country healed and moved on.
Andrew: [Laughs]
Thomas: We all sang “Kumbaya,” right? There was a great healing moment… when we all joined hands. [Laughs]
Andrew: Yeah, so noted. I’m still trying to get-
Thomas: Yeah, that’s fine.
Andrew: -Professor Eliason to come on the show so this isn’t helping.
Thomas: I know!
Andrew: The closest analog that I could come up with – and again, it’s not a great analog – is Rod Blagojevich.
Thomas: Mm-hmm.
Andrew: Rod Blagojevich was convicted, and until pardoned, commuted, by having had his sentence commuted by Donald Trump, for attempting to sell off Barrack Obama’s senate seat. There was that fantastic, you know, telephone recording in which Blagojevich says “I’ve got this clownhorning thing and it’s clownhorning gold and I’m not just gonna clownhorning give it away.” Ultimately, not the person that was the highest bidder as far as we can tell, but ultimately Blagojevich, before being arrested, convicted, and sentenced, did in fact appoint Roland Burris to fill out Barrack Obama’s unexpired term.
You know, the question on if you bribe somebody, and “somebody.” If you bribe individual 1 who happens to be the President of the United States, in exchange for a pardon, the first question is “is the pardon still valid?”
Thomas: Yeah.
Andrew: And the answer to that is I don’t know. It might be! There really – there are super great arguments for why it shouldn’t be, but there’s the possibility, and I think the way a court would come out is to say that the pardon itself is valid, whatever that means.
Thomas: [Laughs]
Andrew: The platonic ideal of the pardon itself-
Thomas: Yeah.
Andrew: Is valid, but you are estopped by various doctrines including unclean hands, from relying on the benefit of the pardon. I think that’s where I would come out-
Thomas: That’s some, like-
Andrew: -if I were a court.
Thomas: Christianity level person of words, there. Well it’s not “literally” the body of Christ but it is the body of-
Andrew: Yes.
Thomas: Anyway.
Andrew: It is symbolic of the pardon. Let’s talk about what we learned about this, and I have to do this segment kind of tentatively because, as you know, we cover stories on this show when I get access to the actual documents, because the whole premise of this show is other people reading documents suck at it, that’s why you need us. Grand jury proceedings are sealed, so this case, bearing the case number 20-GJ-35 in the U.S. District Court for the District of Columbia, I can’t even pull it up on PACER, because anything with a “GJ” designation is not released to the public.
Thomas: Hmm.
Andrew: The reason for that is because if I could then it would show the caption, and half the caption is blocked out. [Laughs] We have one document, and let me explain what that document is and where it falls into the scheme of things. At an unknown point in time, beginning in the summer, a grand jury was empaneled and issued search warrants, subpoenas, in connection with an investigation by somebody who was facing a federal prison sentence, by and through the use of an intermediary, to basically purchase a pardon from the Trump administration in connection for massive campaign donation.
Thomas: What was the evidence for this? Or do we not-
Andrew: Here’s the evidence we have that is incredibly interesting.
Thomas: Hmm.
Andrew: Grand jury is empaneled, that is a one-sided presentation. They decide that there is probable cause to issue various search warrants. As a result of those search warrants, and some of this I have pieced together from this redacted filing. Some of those search warrants led to the seizure of a bunch of different materials. Those materials include laptops, thumb drives, hard drives, all sorts of information. Then, the targets of this criminal investigation said “okay, but we’re not turning over – we want an order that requires the government,” that is the line prosecutors at the Department of Justice, “not to review some of this information.” In fact, it looks like it is the overwhelming majority of the information, and that’s because they were claiming it was attorney/client privilege.
Thomas: Hmm.
Andrew: They’re like “look, our lawyer’s name is on this.”
Thomas: Yeah, “who I bribe is between me and my lawyer. It’s a sacred-
Andrew: Between me and my lawyer and the Trump administration, that’s right.
Thomas: [Laughs]
Andrew: So then what happened is the DOJ went back and they filed a motion to be able to have those materials reviewed by a taint team.
Thomas: Ooooh boy!! Roll the theme song, it’s the taint team!
Andrew: Yup, I always-
Thomas: I’ll never forget, I was in Chicago on our trip I think with Phoebe and Lydia when we recorded that first taint team episode, and I’ll always remember making taint team jokes in a hotel room. I dunno why, it’s just a memory of this show that will always be in my mind.
Andrew: [Laughs]
Thomas: Remember travel?
Andrew: God, travel. Yeah. The government, in its motion, basically said two different things. They said look, these targets – and I’m gonna describe what we know about the scheme to the best of my ability in a minute – these targets are claiming that their documents are protected by attorney/client privilege, but they’re not for at least two reasons. First, because of the crime/fraud exception. When you meet with your lawyer-
Thomas: Yeah.
Andrew: -to plan on how to [Laughing] bribe the President, that’s no longer protected by attorney/client privilege. I’ve had to say that a lot more often than I expected I would have to say that.
Thomas: Yeah, I feel like parentheses, (doy!), it should say.
Andrew: Yeah. Then secondly, and the alternative, that all of these documents, the privilege is vitiated by the presence of third parties.
Thomas: Oooh, vitiated. That’s a new one! What does that mean?
Andrew: [Laughs] Gone, invalid.
Thomas: Yeah.
Andrew: Here’s the thing, Thomas, I am your lawyer.
Thomas: Yup.
Andrew: And when you come to me and say-
Thomas: I wanna do some crime!
Andrew: [Laughs] When you come to me and say “I want advice on X,” so long as you don’t ask for advice on how to commit a future crime, that’s protected by attorney/client privilege.
Thomas: Oh.
Andrew: And it’s also protected when Morgan is on the line, or when Ashley is on the line. When anybody who is one of my agents, somebody that works for my firm is on the line, that does not break the privilege. Similarly, anybody who is one of your agents is also protected by the privilege.
Thomas: Hmm.
Andrew: But here’s what’s not privileged. You and I are hangin’ out – boy, you remember hanging out?
Thomas: Yeah.
Andrew: That was lovely. And we’re talking about it on a public street, on a bus, at a ballgame.
Thomas: Yeah, yeah.
Andrew: Whatever, and somebody else overhears, the law is very, very clear.
Thomas: This entire bus is privileged, everybody!
Andrew: [Laughs] Yeah. “You’re violating attorney/bus confidentiality.”
Thomas: [Laughs]
Andrew: No. We talk about it on the show, the minute-
Thomas: Yeah.
Andrew: -we talk about it on the show, we’ve invited a third party into the room, and that third party is not an agent of either you or I.
Thomas: I think we have more listeners than that, Andrew.
Andrew: [Laughs]
Thomas: Don’t sell us short, we’re doing a little better than that.
Andrew: We’ve got the one guy.
Thomas: [Laughs] Literally just Andrew’s mom is the only listener.
Andrew: [Laughs] Yeah! My mom and Teresa Gomez, that’s it. That’s the entirety of the audience.
Thomas: And you guys stay quiet about this crime we’re discussing, okay? [Laughs]
Andrew: [Laughs] Exactly right. So, here’s the thing, well established principle of law. As far as I can tell, this scheme involved the person who committed the crime and was seeking the pardon, and then an intermediary. The intermediary also has a lawyer, but the intermediary is the bagman, the person-
Thomas: Mm-hmm.
Andrew: -who was gonna run the money from Person A to the Trump administration, person with connections in the Trump administration. I will tell you, lots of people are trying to decipher who this is on the basis of length of the name under the redactions? My guess was Roger Stone.
Thomas: Hmm.
Andrew: Our buddy Devin, Legal Eagle, his guess, which looks even more plausible was Elliott Broidy. Scumbag in the middle, and the thing is neither Roger Stone nor Elliott Broidy, nor whomever the bagman scumbag is, is a lawyer.
Thomas: Ah.
Andrew: So, all of these communications were then run by the fixer, and therefore that vitiates the privilege. No, it’s not attorney/client privilege when you give them to Roger Stone.
Thomas: [Laughs] Yeah.
Andrew: Or when you give them to Elliott Broidy, and that, by the way, is the basis. This is your favorite judge, Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia, that’s the basis on which she granted the government’s motion to review all of these materials back in August. August 28th of 2020. Then after that – by the way the taint team is done. They’ve had the documents for months-
Thomas: Well, never say that!
Andrew: [Laughs]
Thomas: They might get a reboot, you never know.
Andrew: [Laughs]
Thomas: There’s Netflix, you know, there’s Hulu, lots of places.
Andrew: This episode of the taint team is done.
Thomas: Oh, okay, gotcha. Good.
Andrew: Yeah, they’re ready to move on to their next assignment.
Thomas: [Laughs]
Andrew: If you can find them and you have need for their services.
[31:49.6] [Commercial]
[34:09.8]
Andrew: The review is done, but at the same time Judge Howell, it appears, sua sponte, on her own, said hey, look, I understand that pending grand jury proceedings are confidential and if there are folks that have not yet been indicted we do not want to disclose any information that pertains or would otherwise prejudice their rights, and by the way, really, really good principle. Let’s not lose protections for criminal defendants just because we’re concerned about the fact that we have a criminal administration.
But yeah, Judge Howell said look, I get all of that, but government, I want you to tell me which parts of this order I can redact and then release, make available to the public, because not all of it is prejudicial to unindicted and pending criminal defendants, and in general the public has a right to know what’s going on in its courts. She ordered the government to do that by November 26th, within 90 days. The day before, on November 25th, the DOJ submitted a status report that I kind of picture being sort of surly and dragging its toes-
Thomas: [Laughs]
Andrew: And going “we don’t wanna release any of it.” Judge Howell was super not happy about that! [Laughs] Said “No no no, I will do the redactions if you don’t. You’ve got five more days to submit a fully redacted version of my August 28th Order or I’ll do it for you.” That’s what happened, and that’s what we have. It is an 18-page, redacted, Order, and when I say its’ an 18-page redacted order, I mean a full 10 pages are completely blacked out. The entirety of the background section. Everything that would give us the best possible clues-
Thomas: Mm-hmm.
Andrew: -as to who’s behind this scheme is, you know, entirely removed from our ability to see this. Then what’s left is, you know, the legal discussion that I described and the procedural history that I described. Here’s what we know: We know that there was a person convicted of a serious federal crime who contacted an intermediary, possible Elliott Broidy, possibly Roger Stone, possibly any of the other, you know, 7 billion people on the planet. I wanna be very, very clear, that’s speculation about known scumbags, it could be an unknown scumbag.
The scumbag then at least made credible reassurances to the felon that they would be able to conduct this scheme and transmit money to the White House. In the footnotes it even describes how they’re going to do it, that the felon is not just gonna write a check to the Trump – or I should say the “Individual 1” campaign.
Thomas: [Laughs]
Andrew: It describes, you know, running it through – this is footnote 7. “Does not show a direct payment to (blank) by (blank) or (blank).”
Thomas: [Laughs]
Andrew: “And instead indicates that (blank) expected (blank) to assist in obtaining clemency”-
Thomas: Ooh, gotcha.
Andrew: – “for (blank) in exchange for past and anticipated future (quote) ‘substantial campaign and substantial political contributions.’” That’s the scheme. Let’s be clear, on the face of this pleading there is nothing to suggest, yet, that this was received or acted upon by the administration or by any member of the administration. It’s entirely possible that all of this came up the line and hit Donald Trump’s desk and the very first thing he did was-
Thomas: Mm-hmm.
Andrew: -look over at Jared Kushner and say “due to my deep personal and abiding love for the rule of law this is obviously criminal, get Bill Barr on it, and make sure that we do not violate, Jared Kushner, the law in any way whatsoever.” That’s a …
Thomas: Sounds plausible, yeah.
Andrew: Possible, yeah. We do not know; we do not have any evidence yet.
Thomas: I mean, we know who he’s pardoned, right? Don’t we? Or wouldn’t we find out?
Andrew: We do know who he has pardoned.
Thomas: Yeah.
Andrew: The question is was this something that was still under consideration?
Thomas: Was it on his desk? Yeah.
Andrew: Yeah, exactly, who knows? That’s what we know on bribery for pardons. The thing to look for next is these documents – this scheme is now known to the government. The taint team has been through, they have produced the documents that are the subject of this order, and they produced those months ago.
Thomas: Wow.
Andrew: This is very, very well developed by this point.
Thomas: That’s interesting.
Andrew: Yeah.
Thomas: Would it have been before the election?
Andrew: Oh yeah.
Thomas: Oh, okay.
Andrew: Very clearly before the election.
Thomas: This isn’t necessarily a “going out of business” sale of pardons. [Laughs]
Andrew: [Laughs] Yeah, that’s right.
Thomas: Huh.
Andrew: Look, I will tell you, I called folks at the Department of Justice and nobody knew anything about this.
Thomas: Huh.
Andrew: From that I infer that the prosecutors took this on their own initiative. They did not run this up the flagpole-
Thomas: Yeah.
Andrew: -to see if Bill Barr saluted. May, in fact, explain why the prosecutors did not want any documents made public about this whatsoever. They might have feared interference from the top of the food chain. Again, I think it is sort of a continuing theme from segment one into segment two. Our system of justice has not yet been blotted out from the face of the earth and had the field sewn with salt so that nothing grows there ever again. There are still career civil servants doing good work, exposing corruption in the most corrupt presidential administration in American history. We’ll continue to keep an eye on that, but that’s the bribery for pardons investigation, which is only one of like eight different- [Laughs]
Thomas: Oh. Yeah.
Andrew: -pardon related stories that came up this week.
Thomas: That’s bullet point one of this segment.
Andrew: [Laughs]
Thomas: Shall we tackle bullet point two?
Andrew: Let’s do that.
Thomas: Okay. I remember in 2016, I believe, Obama pardoned Sasha and Malia on the way out.
Andrew: [Laughs]
Thomas: So, this is pretty normal for this topic, which is preemptively pardoning Jared and Ivanka. Every President does that, right?
Andrew: This is, like everything Donald Trump has done, entirely unprecedented. The New York Times continues to use this very weird phrasing of “preemptive pardons.”
Thomas: Hmm.
Andrew: I’ve had a lot of people ask me “what does that mean?” I figured it made sense to answer that directly. The President’s pardon power – and this is it, by the way – comes from Article 2, Section 2, Clause 1 of the Constitution, and it says “The President” and the first part is all “commander and chief of the military,” all that stuff, “blah blah blah blah blah,” then says (quote) “shall have power to grant reprieves and pardons for offenses against the United States, (comma), except in cases of impeachment” (end of quote).
That’s it. The entirety of all of this that we’re debating comes down to that 1/7th of a sentence plus what Hamilton wrote in Federalist No. 74, which we’ve talked about on this show before, and like a dozen cases in 230 years. The answer is there’s a tremendous zone of uncertainty around what any of this means. However, it is clear from the language, you have to be pardoned for an offense against the United States. As we unpack that, it means that you cannot be pardoned preemptively for stuff you haven’t done yet.
Thomas: Yeah.
Andrew: It must be an offense in being. Look, that’s one of the things that we’ve talked about on the show. Even if Trump pardons himself, even if he resigns and has Pence pardon him on the way out, even if that language is comprehensive, if there is a conspiracy and there is any continuing act of the conspiracy ten minutes after the ink on the pardon is dry-
Thomas: Ah.
Andrew: -then those crimes are not pardoned. They were not pardoned.
Thomas: Also, I was wondering with the last bullet point, this becomes like a calculus question. Can you pardon for the bribery for pardon investigation, crimes?
Andrew: [Laughs]
Thomas: Then pardon for that, then pardon that, then pardon that, and then there’s a summing of infinite pardons series, the answer is like 1.3 somehow? I dunno how.
Andrew: It’s “E.” [Laughs]
Thomas: Can you just keep pardoning forever as this goes along?
Andrew: That’s a really, really interesting question. I think the answer to that is “sort of.” [Laughs] I told ya, we’re in a lot of “sort of” territory here.
Thomas: Yeah.
Andrew: Let me explain what I think, how I think that would work, in connection with the language that was used in the Flynn pardon. Michael Flynn’s pardon which we’ll link in the show notes, it’s up on the openargs.com website because it was included as an exhibit in the Flynn case, and since I am now counsel of record in that case having [Laughing] filed our Opening Arguments brief-
Thomas: Oooh.
Andrew: – I got a note as soon as this was filed, a little electronic notice popped up.
Thomas: Cool!
Andrew: -and said “hey, you might wanna download this” and I was like “oh boy, do I ever!”
Thomas: [Laughs]
Andrew: It says “Michael T. Flynn will have a full and unconditional pardon.” By the way, this document when you look at it, it’s got a little gold seal on it and everything, it looks like the kind of thing you would frame and hang in your office.
Thomas: Yeah, like with your diploma.
Andrew: Yeah. It looks like a diploma. Flynn was pardoned for the charge of making false statements to federal investigators in violation of 18 U.S.C. § 1001, we’ve talked about that, as charged in X case number (semicolon); “for any and all possible offenses arising from the facts set forth in that information and statement of offense.” Even the stuff that he wasn’t charged with, the stuff that was discussed he gets pardoned for, and that includes his Foreign Agent Registration Act violations, that is the dirty stuff that Michael Flynn did lobbying on behalf of the Erdogan government.
Thomas: Mm-hmm.
Andrew: A brutal totalitarian regime, in the United States, without telling the U.S. government that he was lobbying on behalf of Erdogan’s Turkey. He gets pardoned for that. The pardon continues, for offenses (quote) “that might arise or be charged, claimed, or asserted in connection with the proceedings under that docket number. For any and all possible offenses within the investigative authority or jurisdiction of the special counsel,” that is Robert Mueller, “and for any and all possible offenses arising out of facts and circumstances known to identified by, or in any manner related, to the investigation of the special counsel including, but not limited to, any grand jury proceedings now in existence in the Eastern District of Virginia or the U.S. District Court for the District of Columbia.”
That is the kind of language that I would expect to see around a Trump self-pardon, around an Ivanka and Jared Kushner and Donald Trump Jr. self-pardon. Something that says “you are pardoned for any and all possible offenses arising from the facts that are in any way connected to X thing.” That would then cover, ridiculously enough, the pardon for bribing, for accepting a bribe, and by the way we’ve talked about this a lot, bribery is a bilateral offense. It is the crime of bribery both to offer a bribe and to accept a bribe.
Thomas: Right.
Andrew: To corruptly accept any “thing” of value in exchange. Finally, you can do what President Gerald Ford did when pardoning Richard Nixon; that is that I (quote) “do grant a full, free, and absolute pardon under Richard Nixon for all offenses against the United States, which he” (Richard Nixon) “has committed or may have committed or taken part in during the period from January 20th, 1969 through August 9th, 1974.” That is the entirety-
Thomas: Oh.
Andrew: -of Richard Nixon’s time in office.
Thomas: I feel – this power is too broad. I think they should make you; I get that it maybe should exist for certain reasons, but you ought to be able to give a line item list of which crimes someone’s being pardoned for. I mean, shouldn’t you? Seems a little weird to be like, yeah, any crimes. We’re not sticklers, we don’t know how many crimes or what they are, you know, there may be ones we forgot about, but either way all crime washed away for these years.
Andrew: [Laughs]
Thomas: I dunno. I guess the other end of that is like if there was some good use for the pardon power and it didn’t work this way could somebody gin up some charges that got conveniently forgotten or something that you didn’t get pardoned for. Is that the counterargument?
Andrew: Yeah, I think that’s right. The idea is that this would – the argument for a broad pardon power, I think there are two good arguments for that power. The first is that there is tremendous governmental pressure to convict people.
Thomas: Yeah.
Andrew: Having a very, very broad power to stand against something that otherwise is unfettered and unilateral in one direction is probably not a bad idea. We can see throughout the 1980s, I’ve talked about this on the show, we watched the Reagan administration federalize dozens of state law crimes and make them federal crimes by saying, you know, “oh well if we suspect that a terrorist is involved,” or “if this involves transporting a firearm across interstate lines,” or whatever.
The small government party of federalism turned a whole bunch of traditional state law crimes into federal crimes. The motivation for doing that I think is – I’m going to be reductionist here when I say the reason to do that was to get around the fact that there were states that didn’t have the death penalty.
Thomas: Mm-hmm.
Andrew: To be able to impose the death penalty for drug trafficking and other – again, it had to be, it was not just for drug trafficking, it had to be felony murder committed while drug trafficking, but things like that. I think the incentive, again I’m being reductionist, feel free to write in, the subject deserves a lengthier study, but I think it is undeniable that you otherwise have this idea of all of your political incentives are oriented around being (quote) “tough on crime.” Having a broad power to say yeah, we want to thwart that, is not a bad thing.
Then the second aspect is also by having it be broad and unreviewable you stop an evolutionary arms race of being able to retaliate against a President who has pardoned somebody that you as the legislature don’t want to see pardoned. Oh, alright, you’re gonna do that then we’re gonna go back and arrest him for Y. Oh, you’re gonna pardon him for Y? Then we’re gonna go back and arrest him for Z. By being able to say no, no, no, no, no, this is just, this is it, it’s done, we draw the line, it’s over. I think those are the two strongest arguments.
That is not to suggest that there are not very, very good arguments to the contrary that are being brought into the fore with Trump’s total – because, again, we have been resting on the idea that there are things that no President would do.
Thomas: [Laughs] Yeah.
Andrew: Now we have a President who is doing all of those things.
Thomas: Yup, now there’s nothing that this President won’t do, is where we are.
Andrew: Correct, yeah. That’s right.
Thomas: You touched on this a little bit already, but regarding Flynn’s pardon, what is the acceptance of guilt look like there? Does he have to do something? How does that work?
Andrew: Yeah. Yeah, what he has to do is the thing that he has already done.
Thomas: Oh.
Andrew: Which is introduce it into evidence. To accept the pardon means to then rely upon it in a court of law.
Thomas: Right.
Andrew: He could not. He could get the pardon and then be like “no, I don’t wanna do that.” This actually comes up in the case of another individual who was pardoned by Donald Trump. Maybe we will do a deep dive on Clint Lorance, L-O-R-A-N-C-E, this is somebody who made the news, made the rounds on Fox News because that’s where the President of the United States gets all of his information from. Was kinda this cause celeb on Fox News, then Trump pardoned him after having watched the stories.
He was in the military and was facing a court martial for having committed war crimes, and, you know, that doesn’t matter if you’re on Fox News, so the President issued him a full pardon then he also, Lorance, had a pending lawsuit that challenged the basis for his court martial. He said “I’m totally innocent,” and the courts there said yeah, no, dude, you’ve been pardoned. We lack subject/matter jurisdiction to adjudicate whether you’re innocent or not.
Thomas: Oh yeah. Wait is this the guy who friggin’ murdered people?
Andrew: Oh yeah!
Thomas: Oh my god, this made me sick.
Andrew: Yeah, it should make you sick, it’s a ridiculous case. But that’s what we mean when we say a pardon is an acceptance of guilt. It means because you have taken away the adverse consequences you can no longer litigate “hey, I’m innocent, I didn’t do this.” You can’t expunge the conviction because the court now has no relief they can award you. That’s the kind of thing that it means, but it doesn’t mean anything more, beyond that.
Thomas: Yeah.
Andrew: The best example of that, we’ve talked about this on the show before, is Bill Clinton’s posthumous pardon of Henry O. Flipper, the first African American army officer, and we’ve talked about that case. You’re dead, you can’t accept a pardon.
Thomas: Right.
Andrew: [Laughs] You can’t present it in court, you can’t acknowledge your guilt, but nevertheless we agree that posthumous pardons can be valid.
Thomas: Well what are we gonna do? Arrest the body? I don’t understand.
Andrew: Well, in terms of-
Thomas: Sorry, this pardon’s invalid! Put that corpse in prison!
Andrew: In terms of adjudicating – I mean, look, almost all of these posthumous pardons are about-
Thomas: For show, right?
Andrew: Yeah, they are for show, but I could imagine it affecting the dispersal of trust funds.
Thomas: Yeah, life insurance or something.
Andrew: Insurance proceeds, things like that.
Thomas: Yeah. Oh, okay.
Andrew: Posthumous pardons are okay. If it’s okay to do it to a dead guy that tells you the threshold for what counts as an acceptance is very, very, very, very, very, very low.
Thomas: [Laughs] Yeah. Do they have to go to the gravestone? Be like “if you accept this do absolutely nothing.”
Andrew: [Laughs]
Thomas: Like The Simpsons.
Andrew: Give no sign.
Thomas: [Laughs]
[56:34.7] [Patron Shout Outs]
T3BE Question
[58:46.4] [Segment Intro]
Thomas: Now it’s time for T3BE because I still haven’t passed the bar, and in fact I think I’m on a bit of a losing streak. So, ah, time to turn it around!
Andrew: Here we go: A passenger in a car sustained a serious back injury after the vehicle she was riding in was rear-ended by a negligent driver. The passenger sued both the man who was driving the vehicle that she was in as well as the driver of the vehicle that rear-ended their car. The jury found that the passenger’s damages totaled $100,000.
Thomas: Okay.
Andrew: The man was found to be 20% at fault. The driver of the other vehicle was found to be 70% at fault.
Thomas: Hmm.
Andrew: The passenger was found to be 10% at fault for not wearing a seatbelt.
Thomas: Oooh.
Andrew: The jurisdiction has adopted the pure comparative negligence doctrine-
Thomas: [Sighs] Ah.
Andrew: -with joint-and-several liability.
Thomas: Joint-and-several. Okay.
Andrew: What is the maximum amount, if anything, that the passenger can recover from the man? A) $100,000; B) $90,000; C) $20,000; or D) Nothing.
Thomas: Okay so, ah, pretty sure I can ignore almost all of this because it’s the pure – [Sighs] we’ve had a question like this. Pure comparative. Pure comparative. So pure comparative would … [Sighs] With joint – that sounds contradictory to me.
Andrew: [Laughs]
Thomas: Pure comparative negligence with joint-and-several liability. I remember the joint-and-several liability being the trick question, you know, like years ago when we had this question and the trick was everybody can be liable ultimately for all of it? Because you just wanna get the money to the victim or something, so that meant that anyone could have been liable. When it says what is the maximum amount, if anything, that the passenger can recover the trick of that question ended up being the maximum was the maximum, it was 100,000 or would be in this question, because of the joint-and-several liability thing, because if they were at all at fault you could collect everything from them potentially.
But the pure comparative negligence sounds like … [Sighs] Oh, gosh, these words that I never quite know what the term means. Does pure comparative mean whoever was – I would take that to mean whoever was most negligent is just liable. That’s what that sounds like. Pure comparative negligence rather than whatever the other term is that I already forget. This is really tough.
The other part of this is the passenger herself was 10% at fault. Now 10% is least, so that’s, you know, there’s nobody who’s less at fault than the passenger. Is this the kind of jurisdiction where just being at all at fault would mean you can’t recover from anybody? Or would pure comparative mean because the driver was 70% at fault, they are liable for like everything? But the joint-and-several liability is killing me. Oh, these stupid terms!
Um, okay, I guess I’ll just try to use some common sense here. This is from the man, so the man was 20% at fault. The answers are 100,000, which would be the maximum. If anything, the passenger can recover, so that would be the maximum. A would be under that theory that because of joint-and-several liability she could recover the maximum from the man. But the weird thing is she’s also 10%. Does she have to recover from herself?
That’s where I think answer B, which is 90,000. That would be like you can recover the maximum amount that’s not your liability? That’s a little … Hmm. Maybe? That’d be 100,000 minus the 10% of fault that she is, essentially. That’s not a terrible answer.
C is 20,000, that would just be the pure 20% of 100,000. That’s like the driver, the man’s 20% at fault, the most they can do is 20,000. I swear that joint-and-several liability, though.
Then D, nothing. D, nothing, is probably not it, you know? But with pure comparative. If pure comparative was somehow the one where like if you have any fault then you can’t recover anything then D would be the answer.
The funny thing is if she’s 10% at fault could he still – would the maximum amount even under that joint-and-several liability would it still be 100,000? If she can’t afford it? [Laughs] If she can’t pay herself the 10,000, it’s like sorry, it’s joint-and-severable liability so you’re all on the hook for all of it. It feels really unfair that you could possibly recover $100,000 from the guy who was 20% at fault. That feels rough. But -oh! I guess the key was the man could then sue the other people for the money.
I wanna say it’s between … all of them. [Laughs] I’ve narrowed it down to A, B, or C. [Laughs] I don’t think it’s nothing. C, $20,000 is the obvious answer? I think I’m gonna go with A because of the joint-and-severable liability thing. I’m just gonna go with A, 100,000, I think joint-and-severable liability means that there each could be liable for all of it. I think! I mean, B is possible but I’m gonna go with A, final answer. Ah, I hate this question, Andrew.
Andrew: [Laughs] Alright, and if you’d like to play along with Thomas, who hates this question, you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: That’s our show, thanks so much for listening, we’ll see you on Tuesday!
[Show Outro]