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[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 447, I’m Thomas and that is Andrew Torrez. How’re you doing, sir?
Andrew: I am fantastic, but I’m extra fantastic. We are having back one of our favorite guests and a little different OA this time.
Thomas: Yeah, yeah. Just a quick refresher on our announcements, that fundraiser, it is happening December 20th, that’s a Sunday, be ready, be ready to come watch, hang out, see some great guests and of course donate to save democracy!
Andrew: I can’t think of anything more important than that. Yeah, Sunday, December 20th, Opening Arguments live fundraiser to save the republic.
Thomas: Alright well with that said, you may remember an episode a few … [Laughs] You may remember us from such episodes as-
Andrew: [Laughs]
Thomas: Debating over Professor Randall Eliason Washington Post opinion column about whether or not we should prosecute Trump. Well Professor Randall Eliason was kind enough to come on our show and talk about it. We’re so excited to have him, very curious to see if our episode influenced him at all or maybe if Andrew’s arguments will influence him in the moment. We’ll find out, let’s go ahead and get on the line with Professor Randall Eliason.
Debate with Professor Randall Eliason on Indicting Trump
[2:37.2] [Segment Intro]
Thomas: And we are joined by Professor Randall Eliason, so glad you are coming on the show. Hoping it’s, you know, not just to yell at us then rage quit. [Laughs] How’re you doing today?
Andrew: [Laughs]
Prof. Eliason: I’m doing fantastic, Thomas, how are you?
Thomas: Oh, doing great. We’re so glad to have you. I think this is a very worthwhile discussion, argument to have regardless of if we still disagree. But seeing as how we did a full episode without you here, you know, discussing our objections and stuff I think it makes sense and is fair to let you go ahead and have the opening word here. Why don’t you go ahead?
Prof. Eliason: Thank you, I appreciate that. Thanks for having me on. I enjoyed most of your episode last week. [Laughs]
Thomas: [Laughs]
Prof. Eliason: Discussing my – I won’t say all of it, but you did not convince me to change my mind so I’m glad to have the opportunity to come back and see if I can convince you. To start with I wanna make three or four kind of big picture points then I’ll go to those five separate points that Andrew talked about in my column.
The first big picture point is I agree with most of what you said. As I said in the piece, I think this is a difficult position, I think it’s a close call, and I think there’s good arguments on both sides and many of which you’ve made. I just think there are costs to either approach, there are costs to pursuing him as well as to not pursuing Trump and I just come down on the side of thinking that the costs of pursuing him are higher and so when deciding what’s in the best public interest going forward that’s why I argue that would be to not pursue Trump as opposed to pursuing him. It’s not that I don’t recognize the force of the arguments on the other side, and I said that in the piece as well.
The second big picture point is we’re talking just about the President here.
Thomas: Hmm.
Prof. Eliason: There were some comments during your discussion about, you know, we have a problem with corruption in politics, the answer isn’t to not prosecute the criminals. Again, I agree with that. I used to prosecute corruption cases for a living so I take them pretty seriously. I’m not arguing for some kind of “get out of jail free card” for all corrupt politicians as maybe was suggested at times. There are considerations that are unique to the President and that’s what I’m talking about here.
The third is there were a number of times during your program when you said “I wanna know what happened, don’t you wanna know what happened?” Again, yes, I agree with that. We wanna know what happened about COVID, Russia interference, whatever. I want to know too. The problem is that’s not the roll of criminal law and a criminal investigation is actually the worst way to find that out. The purpose of a criminal case is not to inform people, it’s to investigate criminal allegations and due to grand jury secrecy the public really doesn’t learn about it, especially if a case ends up not being brought, those proceedings remain secret. You have to remember the Mueller report was unusual because it was a special counsel.
Thomas: Mm-hmm.
Prof. Eliason: But in general a criminal case is the worst way to try to inform the public about what happened. What you’re arguing for in my mind is Congressional investigations.
Thomas: Right.
Prof. Eliason: I think that’s right. I said that in the piece too, because those are public and those can lead to reforms, legislation so we make sure this stuff doesn’t happen in the future. But “I want to know what happened,” which was repeated multiple times during your broadcast, is kind of irrelevant to my argument because a criminal investigation is never the answer to “I wanna know what happened.”
Then the fourth big picture point is I just want to reject or push back on this kind of binary view that’s not only in your podcast but in a lot of commentary these days that either we’re saying that something was criminal and we’re gonna prosecute it or we’re saying it’s okay, we don’t care, it was fine. No harm, no foul. That’s just not right. There’s a lot of sleezy, immoral, bad stuff that happens that isn’t criminal, I think we talked about this before when we talked about “bridge-gate” and people were saying no, the Supreme Court said it’s fine if they caused that traffic jam and endangered all those people, it’s no big deal. That’s not what they were saying, they were just saying it wasn’t a federal felony and there’s still a lot of bad conduct that isn’t criminal, and that’s where I put most of Trump’s misconduct.
There’s also additional remedies, even in cases where you think it arguably was criminal. There are other remedies possible. In this case, you know, when Trump leaves office he’s going to be facing a barrage of litigation. Civil cases, the IRS can go after him civilly for taxes, you know the women who said he sexually assaulted them are suing him. State investigations both civil and criminal, those New York State criminal cases, those are all gonna be going on. It’s not that he’s gonna not face any consequences for all the things we’ve heard about. The only question here is now on top of all that do we need, do we want, a federal criminal prosecution as well?
Alright, now quickly about the five kind of points that Andrew split up the column into. The first was my statement that we don’t use the criminal justice system to punish political opponents and I referred to the “lock her up” chants, and I know that made you guys a little angry. [Laughs]
Thomas: [Laughs]
Prof. Eliason: Well okay, if you don’t like the “lock her up” comparison, how about another Clinton? If you don’t like that example, let’s look at Bill Clinton. Bill Clinton could have been charged with perjury when he left office. In fact that was probably an easier case than the obstruction case against Trump, but it didn’t happen. We have this tradition of not prosecuting sitting Presidents after they leave office. I’m talking about a principle and whether we should set a precedent or change that precedent.
Now I agree, Trump makes it difficult to defend that principle because his conduct is so outrageous and potentially seems more criminal than many, although I think not as clear as you do. We’ll discuss that later when it comes to obstruction. But the principle is against even suggesting using prosecution as a way to go after the outgoing administration, which is done in a lot of other countries routinely. I don’t think we want to become like those countries. With all the other norms that have been shattered? This one hasn’t been shattered yet. Even Bill Barr and Jeff Sessions were willing to go that far. You could easily imagine if Trump had a Trumpier AG when he first took office, a criminal investigation of Obama for spying on his campaign, for example, but it didn’t happen and I don’t think we should be the ones to start down that road.
Now you feel like it’s different because here it’s so clear, Trump committed crimes but Hillary didn’t, so that justifies it. My response to that is just to, with respect, is that you think about that liberal bubble that you talk about on your show from time to time. Half the country feels just the opposite. Half the country feels just as strongly as you do that in fact Hillary and Obama were criminals and that Trump did nothing wrong and is being persecuted. We’re talking about a perception here in half of the country that DOJ is being even further politicized, that it’s now used to go after political opponents, and that’s gonna just compound the terrific harm that Barr and Trump have already done to the Department of Justice and its reputation for independence.
In four or eight years when the shoe is on the other foot and you’ve got some newer Republican President prosecuting Biden for some policy disagreement or whatever they wanna try to come up with, it’s not gonna matter if the liberals can all say “well that’s unfair, it was okay to prosecute Trump but this is unfair because it’s not criminal,” because half the country’s gonna disagree with you. It’s just the issue of trading that precedent and further politicizing the Department of Justice that I’m worried about.
Point two was we don’t prosecute norms. We pretty much agreed on that, it’s gotta be clearly criminal conduct not just norms, and the fact is, though, that almost all of Trump’s misconduct I think falls into this category. There’s very little that’s really arguably potentially criminal. When you talked about the emoluments clause as an example that I put in my column and you said yeah, but wouldn’t you like to know what happened? Isn’t there some way to make that a crime? Again, those are all excellent reasons for a congressional investigation, to look into the emoluments violations, pass reform legislation – there’s already been some proposed, in fact. So yeah, let’s investigate, let’s find out what happened, but not with a criminal process.
The third point, obstruction, I talked about how the House didn’t even bother to impeach and Andrew called that an own goal on my part because he said just the opposite. It’s because they didn’t impeach that we need to prosecute, we need to counter that “no obstruction, no collusion” narrative. Again, I get that argument, but I just don’t agree with it and I stand by the own goal-
Thomas: [Laughs]
Prof. Eliason: -and say I think it’s relevant. I think it’s relevant. It’s not decisive, it doesn’t decide whether you should prosecute or not, but to me it’s relevant that the House did not even bother to impeach. The Constitution contemplates prosecution after impeachment and removal that expressly says that. Once you’re removed from office you can be prosecuted. It’s a little odd to say this conduct wasn’t serious enough to even bother trying to remove the President from office where the standard of proof is so much lower, but now we’re gonna try to put him in jail for the same conduct two or three years later, now that he’s out of office. If it were that serious you’d think you’d at least try to remove him from office.
It’s not because lack of impeachment means that he wasn’t guilty, but it is relevant to the idea of whether it’s in the public interest now to reopen this and try to put the President in jail for conduct that the Democrats wouldn’t even try to remove him from office for. They can’t respond by saying “well it was pointless because the Republicans control the Senate,” because they did it with Ukraine. They can’t just say “well we would never impeach him for anything because it wasn’t worth it,” because they did it with Ukraine. To me that’s a relevant factor. Again, not because it means he wasn’t guilty, but when you’re exercising your prosecutorial discretion about what kind of cases to pursue the country has kind of closed the book on the obstruction of justice and I think there’s a good argument that it’s not in the public interest to reopen it.
The fourth point was agenda setting. You sort of agreed with this one, do you wanna make the next few years all about Trump? You know, I want him to fade away as much as possible. I know it’s not gonna happen, but one thing we can guarantee if he’s prosecuted is that he is going to stay in the spotlight and continue his agenda of victimhood and grievance day after day about this new witch hunt.
You know, you suggested it’s an open and shut obstruction case, you think he would be indicted and it would be a quick guilty plea or something? I mean, that’s just not gonna happen. Eric Posner, a pretty highly regarded law professor at Chicago wrote a column in the New York Times about a week after mine that I sent to Andrew making the same arguments about why Trump should not be prosecuted and he pointed out a lot of the legal issues with an obstruction of justice case. There are a lot of Constitutional defenses because he’s the President, again, that don’t apply to anybody else. But best case is it goes for two or three years, it ends up being acquitted or even if you get him convicted he’s either then a martyr or a victim. Either way you’re just keeping the spotlight on him, everything’s all about Trump, and I don’t think that’s what we want.
Related to that response was, I think Thomas said you know, this idea that Biden can pursue his agenda and we can have unity doesn’t make any sense, that’s not gonna happen no matter what. Nixon’s pardon did not unite the country. I’d say actually I disagree with that, because you have to say compared to what? Yeah, it wasn’t all unicorns and rainbows after Nixon was pardoned, but it did allow the country to move on and not spend the next two, three, four years re-litigating Watergate and everything that would have gone with that. I think arguably, again compared to the alternative that did help the country heal somewhat and move on. The same could be true here if we’re willing to move on from Trump.
You argue (sort of) unity’s impossible or even getting better, it’s just not gonna happen, and maybe that’s right. But you know, Biden campaigned saying he was going to try for that, he was going to seek that, try to bring the country back together. More than half the country voted for that message, so maybe it can’t happen but I kind of prefer hope to despair. I’m not willing to say right now that it’ll never happen and so we might as well just be complicit in burning this whole place down because no matter what we do nothing’s gonna work. I think the best chance that we have is to look forward in working on what Biden wants to do for the country without looking backward on what Trump did – at least in terms of a criminal prosecution.
Then the final point was – I think Andrew, tongue in cheek, paraphrased this one “well what Trump did wasn’t that bad,” when I said there can’t be an absolute bar. You know, if he killed someone or sold our top secrets to the Russians you’d have to say he could be prosecuted, but I dunno Andrew. This one I thought was a little unfair, Andrew, I gotta say. [Laughs] It had the sort of tone of “I’m not mad, I’m disappointed.” It was kind of, you know, parental, “I’m just disappointed.” “I was shocked to hear this,” or “I was surprised.”
Well, first of all I didn’t say it was that bad. Again, that goes back to the question of there’s a lot of really, really bad stuff that isn’t necessarily worthy of a prosecution. Then I’d say yeah, in terms of serious enough to break this precedent and prosecute a former President I don’t think that OOJ, obstruction of justice, reaches that bar. Again, they didn’t bother to impeach him. There are all these potential constitutional defenses. The obstruction was ultimately unsuccessful, you have to remember that. That’s not a legal defense, but it’s a relevant factor for a prosecutor in deciding whether to pursue a case. This is not on the same level as treason or homicide, you know, when we’re factoring in the costs of actually indicting a President.
The other example that Andrew talked about was Konstantin Kilimnik and the ties to the Russians and things like that, I guess in counter to my example about selling secrets to the Russians. Again, I didn’t say we don’t want to look at it as Andrew suggested. It’s already been thoroughly looked at, actually, by the Senate and by Mueller. Again, that took place when Trump was a private citizen, remember. He wasn’t a candidate so he wasn’t in a position to sell sensitive state secrets to the Russians. Again, if there needs to be more investigation – but I can’t imagine what else you would do after a thousand page Senate report and the Mueller report, but if you think there needs to be more it should be done by Congress, not by the grand jury.
The bottom line, everybody’s mad, I get that. I’m mad.
Thomas: [Laughs]
Prof. Eliason: You know? But the only issue now is “what do we do?” Right? What’s the best way to move forward? Stay angry for four more years or try to put this behind us and move on? That’s why I come down where I did. With that, thank you Dr. Hibbert.
Andrew: [Laughs]
Thomas: [Laughs] [Impersonation] Thank you Dr. Hibbert, I rest my case!
Prof. Eliason: I rest my case!
Andrew: Excellent! The Simpsons quote, I think that’s –
Thomas: Excellent debate tactic, yeah.
Andrew: Standard lawyer playing to your audience there.
Prof. Eliason: [Laughs]
Thomas: [Laughs]
Andrew: Let me see if I can’t kind of shape the issues here a little bit, because obviously I think we could drill down on any one of these and go for hours and hours.
Thomas: And you’d better have a rebuttal Simpsons quote ready, is all I’m saying, Andrew.
Andrew: Uh … we’ll get there when we get there.
Prof. Eliason: That’s pressure.
Andrew: First, I wanna talk about your four framing issues, because I think there’s a lot of agreement and maybe some more clarity now. I’m gonna tackle these out of order, but in terms of things that I think are probably resolved. What I think was your strongest argument in the framing issues is the pivot to we can have Congressional investigations for areas that have not fully been litigated in the court of public opinion.
Thomas: Right.
Andrew: And that a Congressional investigation is better than a trial.
Prof. Eliason: Before you go on, to be fair it’s not entirely a pivot, it is in the article.
Andrew: Well it is. I don’t wanna – I want to be fair, so we’re gonna link the article in the show notes. I did a CTRL+F for “Congress” in the article and it shows up once, in the sentence second to the last paragraph that says “if necessary, Congress can hold hearings in support of such legislation” that is reform legislation, “to expose more of Trump’s misconduct.” I think it’s fair to say what you just argued in terms of robust Congressional investigations is a stronger position than the one you took in the Washington Post.
Again, we all agree on it, so I’m not accusing you of hiding the ball in the Washington Post article, but I don’t think it’s fair to say that we misread your article either. The Washington Post article says “we’re not gonna prosecute Trump,” then there’s one sentence at the end that says “if necessary, Congress can hold some hearings.” I think if we come to the position at the end of this show that says hey, there should be robust Congressional hearings into Trump’s misconduct with an eye towards reforming future legislation, that’s a significant point of agreement and one that I think is worth emphasizing.
Prof. Eliason: Yup, I absolutely agree.
Thomas: Okay, yeah, let me make a point on this.
Prof. Eliason: Yeah.
Thomas: I agree with that, and then also I want to quickly summarize the course of this argument, which is you write the article that’s “let’s not go after Trump” essentially, and people reading it get the impression that it’s like “let’s not prosecute Trump,” and then we do a response in which I say many times that I don’t even feel like we have all the information, we don’t know what’s going on, we don’t know all the possible misconduct enough to make that decision, and your response, which I think is important, and you make a good point, which is prosecuting, grand jury, that kind of thing, that’s not the way you get information out, that’s not how you bring light to stuff. That’s more for Congress. Do I have – at least roughly summarized your position correctly, there?
Prof. Eliason: Yes. Yeah, that’s the main reason I brought it up. It’s just that I know – I understand and agree with the “I want to know what happened” sentiment, it’s just that the criminal process is not the best way to do that.
Thomas: Okay. What I want to say to that is I hear you, but I still think that that’s a little bit – I don’t know what the proper word for it is, maybe Andrew has the debate whatever argument term for it, but my point still stands that okay, you may be right that a Congressional investigation is a far better tool for bringing stuff to light than prosecuting, but I would argue that until we have done all of that, until we have had Congress look into all that and we get a report that’s not the Mueller report done by a Republican, by the way. Somebody, maybe, who actually cares about fully getting to the truth, and we do a report like that, only then would I want to see an article written about how we should then not prosecute Trump. Because right now, we don’t have that information.
While I agree with you – I agree with the point that prosecuting isn’t the way to bring that stuff to light. We need to have that stuff brought to light first before we can even say we shouldn’t prosecute him for this stuff. Does that make sense?
Prof. Eliason: Yeah. I mean, a couple things in response to that. One is we already – at least in terms of the things we most often talk about, we already have a great deal of information, in terms of things like the Mueller report – the things that are most likely criminal, anyway. I mean, you’ve got emoluments and stuff, that’s not gonna be criminal. COVID response is not gonna be criminal. But in terms of potential criminality we’ve got a lot of information already. I don’t know how much more we need in those areas. Yeah, I also said in the column – again, I’ve only got 800 words in these things so I can’t-
Andrew: [Laughs]
Prof. Eliason: [Laughs] -go into every minutia, but I did say in the column “absent some new revelation” there’s not justification to prosecute Trump now. Now, of course, if Congress does more hearings and we learn something new about Trump selling secrets to the Russians or whatever, then you’ve gotta revisit that question. I’m just talking about what we know now in terms of whether we should start criminal proceedings now. I would definitely never rule out that if some new information comes to light that that changes the calculus.
Thomas: I guess, but you know, sure emoluments maybe won’t be criminal. There couldn’t be anything in utilizing – essentially getting government money into your business? Funneling money into your – nothing there could be criminal? That all could be above board? There’s no possibility for criminality there? Or yeah, COVID response, okay. What about bribes for pardons?
Prof. Eliason: Yeah.
Thomas: Nothing could be criminal there?
Prof. Eliason: I’ve written [Laughs] multiple columns about how it could potentially be criminal if you could prove bribery, yeah.
Thomas: I guess – again, I might be more objecting to the timing of this being the article. I know you’ve only got 800 words or whatever, are we at – do you think we’re at an appropriate juncture now, to where we should be putting out this stuff of “let’s not prosecute Trump” or should we have this information first rather than writing something and saying “well absent any new information we shouldn’t be prosecuting him.”
Prof. Eliason: Well I think that’s kind of nuanced, isn’t it? We can say okay, based on what we know now we shouldn’t prosecute Trump, if we learn more maybe that changes? I mean, I think that’s – I don’t think we’re really disagreeing.
Thomas: I think we’re disagreeing on where, I guess, where our mindsets are. My mindset, and I think – go ahead.
Prof. Eliason: Yeah, it sounds like you’re implying we should do more criminal investigations. That was sort of the tone of the podcast, I think. We should be convening grand juries and doing more criminal investigations to get to the bottom of all these things, and I’m just kind of saying the reverse.
Thomas: Mmm?
Prof. Eliason: We already know a lot. Most of what we know it doesn’t look likely criminal. Let Congress investigate more and if something new comes to light you revisit it, but based on what we know right now I don’t think Biden DOJ on day one should be convening multiple grand juries to investigate the Trump administration.
Thomas: I think we’re agreeing to disagree here.
Andrew: [Laughs]
Thomas: I think I agree with what you’re saying, which is-
Prof. Eliason: [Laughs]
Thomas: No, which is important. It’s what I was gonna say about the mindset. For one, I don’t believe that what I was saying was let’s get a bunch of grand juries together to do this. I think you’re right in your criticism that I was saying Congress should do this stuff and that’s not the same as prosecuting. I accept that. But my state of mind, and I think a lot of states of mind of people who listen to this show because we heard from a lot of people who agreed with me on this is, my state of mind is we don’t yet have the information so this article is premature, whereas yours is we have plenty of information, I’ll stick the caveat in there that if there’s some other revelation I change my mind, but we have enough information to say let’s not prosecute. I just think that’s a genuine disagreement, and maybe I’m wrong.
Prof. Eliason: Yeah.
Thomas: I just wanted to summarize that.
Prof. Eliason: Um. Yeah, friendly amendment. We have enough information based on the sort of most widely known allegations, the things like obstruction of justice, contact with the Russians before the campaign, things like that. If we need more information the way to get it is not through the criminal process.
Thomas: Sure. Agreed there. To the last part, not to the first part. Go ahead, Andrew. [Laughs]
Andrew: [Laughs]
[26:04.4] [Commercial]
[28:18.5]
Andrew: I wanna try, that was framing issue number three. I wanna speak briefly on issues two and four, but then I kinda want to agree to the overall structure in which we’re comparing the costs and benefits. Let me hit these super briefly because I think you – sort of articulate our positions. Position number four was that it isn’t a binary or not binary thing that Trump can be subject to civil liability or state prosecutions, which I don’t know that I read that as consistent. I guess I read the case against indicting Trump as implying to both State AG [Laughs] and if not-
Prof. Eliason: I don’t agree with that.
Andrew: Okay, if you don’t then good. Then we’re in agreement on that. I would just add, for whatever it’s worth and it’ll get factored into the overall calculus, the perception, and certainly as we look at the historical analogue at this point, the historical analogue is Ford’s pardon of Nixon. Ford’s justification was, I think broadly echoed by the language in your column, which is the country needs to heal and move on, we need to focus on what we need to do to move forward, and this would be a distraction. But it was also punctuated by Ford saying, and various defenders of Nixon saying “and Nixon’s really suffered enough humiliation, let’s not kick him while he’s down.” I want to be 100% clear; I know you’re not saying that.
Prof. Eliason: Mm-hmm.
Andrew: But I think with respect to that, well he’s also potentially subject to these additional bits of process, I think certainly the potential is there for that to reflect – for that to be seen – a non-prosecution at the federal level to be seen as reflecting the same kind of “well, he’s suffered enough.” Historically that was in fact how that was perceived with respect to Nixon.
Prof. Eliason: Yeah, no. That’s not what I mean. But, you know, the Nixon was pardon was extremely controversial as well-
Andrew: [Laughing] Yeah, well, we’re gonna talk about that.
Prof. Eliason: -for a lot of these same reasons, right? Yeah.
Andrew: [Laughs] Yup.
Prof. Eliason: A lot of similar issues.
Andrew: Yup. So, then the idea that this is unique to the President? I still think we’re kind of in own goal territory, and again if you look back at the Ford pardon of Nixon one of the first responses to the pardon of Nixon was the head of the ABA saying oh well did Ford also pardon all of Nixon’s subordinates? Many of whom are now languishing in prison as a result of having enabled Nixon’s conduct?
Prof. Eliason: Mm-hmm.
Andrew: I think that applies with equal force here. Less so because, you know, Stone’s sentence has been commuted and Flynn has been pardoned, but Manafort’s still in prison. Papadopoulos still served his term. These are – there is something chafing in a sense of justice for the idea that the underlings suffer while the President is not indicted.
Prof. Eliason: Yeah.
Andrew: But again, that’s not a major component of my argument, but that would be my response to that on a framing issue. I do wanna go back to what you led off with, with which I agree 100% but I disagree on how the calculation comes out. That is at the end of the day what you’re really doing is you’re balancing two considerations. The question is are the costs of proceeding with a potential indictment of Donald Trump, do those outweigh the benefits or is it the reverse? I wanna add parenthetically that the position I think I articulated on our show that I would wanna make clear here is the position that I would want neutrality. I would want direction from the Attorney General that says to the DOJ, to whichever prosecutor gets assigned to this, I don’t want my thumb on the scale either way. I wanna use the same standard we’ve been using since episode 13 when we went through Hillary Clinton’s emails, which is you don’t – you use standard prosecutorial judgment. He doesn’t get a pass because he was the President, but you wouldn’t bring a case that you otherwise wouldn’t bring against someone else simply because he’s the President. In the same way that Comey’s statement with respect to Hillary Clinton was “no reasonable prosecutor would bring a classified information case against somebody in this case.”
Thomas: Well, can I also just say the obvious which is Hillary was investigated for this?
Andrew: [Laughs]
Thomas: That was the result of an investigation.
Andrew: Yup, yeah. And that’s what I’m saying.
Thomas: The investigation decided no – and the real error there is Comey coming out and talking about it, that’s the worst part.
Andrew: Right.
Thomas: But I don’t really think it would be that big of a deal if, go back in history and instead of Comey doing that they merely quietly investigated her and then determined there wasn’t anything there. Is that some great violation of democratic norms that would have brought the country to its knees? I don’t think that’s that bad of a thing.
Prof. Eliason: She wasn’t the President, either.
Thomas: I mean, she was the first lady and also the far and away favorite to be the next candidate, but yeah, okay.
Prof. Eliason: Yeah.
Andrew: I view you as having made two kinds of arguments for the costs and the benefits. Those, I think, interact with each other. The first is what I might call the reconciliation point, the appeal to the center argument. Quoting from your article, if there was an indictment (quote) “we would remain bitterly divided with half the country convinced that Trump is being subjected to another political witch hunt” and then a little bit of an elision here. “Criminal prosecutions can’t bind up this country’s deep political and social wounds.” The first benefits is in healing the country in reconciliation.
Prof. Eliason: Mm-hmm.
Andrew: Then the second sort of benefits that I think you articulate, not quite drawn out as expressly, but having talked to you a lot, having had you on the show, I think would be a utility-based argument. This is not an appeal to the center but really an appeal to the left because the three of us are Joe Biden supporters, we are [Laughs] opposed to virtually everything the Trump administration did, we have said so in print, on the air, and the idea is that – here, I’ll quote you again, the investigations (quote) “would suck up all the oxygen and detract from Biden’s message and policy agenda. We can’t move forward if the next four years are spent relitigating the past four.” I view that sort of way of weighing the impacts as, um … would this benefit or harm Democrats in being able to govern? First, fair characterization on both of those two?
Prof. Eliason: Um-
Andrew: Which I think are good goals.
Prof. Eliason: Yes, yes.
Andrew: We’re talking about – these are how we weigh whether prosecutions would be a good thing or a bad thing.
Prof. Eliason: Yes. Yes.
Andrew: Okay. Obviously – I liked the way you put it in point one of your opening statement. These two things could come into conflict, and that’s what I think would make it a close call. Your view, you said “I think this is a close call but I lean against prosecuting.” I’m not suggesting this is your analysis, but I think the way in which you get to a close call is if you think, for example, that if you were to indict that it would be good strategically for the Democrats, good on point two on the utility part, but would further polarize the electorate. You might say bad for point one, you might say okay, these two things are in tension, the harms of point one probably outweigh the benefits of point two.
Prof. Eliason: Can I just interrupt a second?
Andrew: Yeah.
Prof. Eliason: I’m not sure I understood what you said a minute ago about indicting being good strategically for the Democrats? I never look at criminal indictments as a political strategy.
Andrew: Well but I think-
Thomas: Well, your article is about-
Andrew: I’m glad you asked. Let’s – I think there are two questions with respect to that. The first is neither of us are saying that you bring the political question as the basis for the indictment. I’m saying you let prosecutors make a decision without a thumb being on the scale, and I think you’re saying – wanna be clear – that you would intervene and say yeah, we’re gonna take this out of the realm of typical prosecutorial discretion in recognition of what you’ve described as the precedent of you don’t indict an outgoing President.
Prof. Eliason: Well, this is maybe a minor quibble.
Andrew: Hmm.
Prof. Eliason: I wouldn’t put it quite that way?
Andrew: Okay.
Prof. Eliason: I think what I’d say is these are my arguments about how you should exercise that discretion.
Andrew: Mm-hmm. I’m not saying that the-
Prof. Eliason: I’m not saying it’s predetermined.
Andrew: Sure.
Prof. Eliason: I’m saying these are the arguments which would cause me to come up this way barring information that we don’t currently have. This is how I think that discretion should be exercised.
Andrew: Understood, and I wanna push back on that a little bit. I do think we’ve both asked the question, how would these hypothetical, how would a hypothetical indictment of Donald Trump, how would that affect President Biden’s ability to get stuff done, right?
Prof. Eliason: Right.
Andrew: Okay. That means we do measure the political implications of it. My points, which I’ll get to very, very briefly, are I think by either measure the one historical precedent we have would tend to argue in the opposite direction.
Thomas: I have to make a point there, I’m so sorry. You keep talking about “the one” precedent we have. I really think we ought to enter into the record, as I mentioned in the episode, the precedent of Obama not going after any of the war criminals of the Bush administration and what that has done to the country in the wake of that. I think that is maybe even a more important precedent than Nixon.
Andrew: I take that point. In other words, I think you could disagree with what I’m about to say but still come out on your side, Thomas.
Thomas: Oh I didn’t know – I wasn’t arguing against you.
Andrew: Yup, no I know.
Thomas: Just the wording you used of “the one precedent we have.” That’s all.
Andrew: Fair, but that is – from a precedential standpoint doing something is sort of easier to point to than not doing something.
Thomas: Well, his argument, if Randall’s argument is for not doing something, I would argue that a precedent where they didn’t do something is even more relevant.
Andrew: Fair. Let me talk very briefly about Nixon, and you might have also added, Thomas, that using the Nixon precedent is bending over backwards to apply it to Donald Trump. Nixon voluntarily resigned; he did not fight his way to the bitter end.
Thomas: Yeah.
Andrew: His supporters did not try and invalidate the 1976 election. Nixon behaved far more charitably, in a way that is far more respectful of the republic than Donald Trump has and Donald Trump supporters have.
Thomas: [Laughs]
Prof. Eliason: Much of which, again, also falls in the “reprehensible but not necessarily criminal” camp.
Andrew: We can go down that.
Prof. Eliason: That’s a whole ‘nother show!
Andrew: Yeah, absolutely. In terms of implications, number one: I think the evidence is super clear that Ford’s pardon of Nixon accelerated partisan polarization. Far from healing the country it divided the country in two camps, into “that’s my guy” or “that guy’s a crook.”
Prof. Eliason: Hmm.
Andrew: The statistical evidence for this is really, really good. I’ll send you the article, there’s a Pew research study from 2014, it’s entitled “The Polarized Congress of Today has Its Roots in the 1970s” and it draws upon the research of-
Prof. Eliason: Yeah.
Andrew: Keith Pool, Howard Rosenthal. They’re the guys that invented DW-Nominate.
Prof. Eliason: Without even reading it-
Andrew: [Laughs]
Prof. Eliason: Can I express skepticism? Because you can’t test it. How do you test the alternative?
Andrew: Sure, you’re free to make the argument that we would have been way even more super duper extra polarized without it.
Prof. Eliason: Yeah, exactly.
Andrew: But I think that’s got an uphill battle when you look at precisely pre-pardon and post-pardon. Pre-pardon, 1973 to 1974, more than half of the House and a third of the Senate fit in what Pool and Rosenthal call “the overlap zone,” which was in between the most liberal Republican and the most conservative Democrat. 240 House members, 29 Senators. Within 10 years that dropped to 66 and 10, it dropped by a third, and today that’s zero. There is no overlap-
Thomas: Wow.
Andrew: Between the most liberal Republican and the most conservative Democrat.
Prof. Eliason: Again, I’m not a political theorist or, you know, it strikes me that you might have a correlation/causation problem there, you know. Those things happened, how do you actually pin them on Nixon’s pardon versus on Watergate itself, for example. Or on any number of social factors that could have contributed to that? I think – you’re asking the pardon to do an awful lot of work.
Thomas: Well, the same arguments apply to your “healing the country” are at point.
Andrew: Yeah, that’s the point. At minimum, even if it’s not an argument that the pardon caused polarization, it’s strong reason to doubt that the pardon did much in the way of healing partisan divides.
Prof. Eliason: And again, compared to what? We can’t do a study.
Andrew: [Laughs]
Prof. Eliason: So, we don’t know.
Andrew: No.
Prof. Eliason: It’s logical to me that it’s more likely. Maybe the reconciliation’s impossible like you two are suggesting, but which is more likely to lead to it? You know, the Biden DOJ spending the next two, three years going after Trump? Or saying “let’s try to move forward, let’s try to heal some of these divisions, let’s try to come together.” One way you do that is not give Trump another platform to yell witch hunt for the next two years before he starts his 2024 campaign.
Andrew: Look, I agree whenever you’re trying to argue by counterfactual. [Laughs] I wanna cast doubt kind of on the healing thesis. Then with respect to the intuitive argument, I think what we can look at is we can look at the way in which Ford’s pardon of Nixon was perceived at the time, and I have to tell you? As somebody who was either not born or not politically active through this, I hadn’t realized just how bad this was.
Thomas: Mm-hmm.
Andrew: Part of that is the sort of inevitable, hey, geographication that occurs when something recedes into distant memory. Nixon got an obit in the New York Times instead of Woodward and Bernstein showing up to picket his funeral. But it’s astonishing to me when I went to look into it, how unpopular the pardon was at the time.
Prof. Eliason: Right.
Andrew: And how much it really undermined Ford’s presidency. Cutting to the chase, I mean Gerald Ford has said – and I’m gonna give some of the supporting evidence, but Ford has said he thinks the reason he was not reelected in – elected to serve a second term in 1976 is because he pardoned Richard Nixon. You know, sour grapes or whatever, but I think the evidence is pretty good on that.
Prof. Eliason: But I believe he also said he still felt it was the right thing to do.
Andrew: Oh yeah, he absolutely did, but I think he’s wrong on that.
Prof. Eliason: And that the alternative would have been worse.
Andrew: I agree, we’re gonna tackle that.
Prof. Eliason: Yeah.
Andrew: But first let’s look at the harm that this cost, because I think these are equivalent potential harms that Joe Biden could face. Gallup ran a poll September 6th through 9th, 1974, which found that the public opposed pardoning Richard Nixon 53/38. Nixon was pardoned in the middle of that on September 8th. Those numbers stayed stable but went down over the next two years. So, by the 1976 election it was 55/35 opposed. Ford’s own press secretary, J.F. terHorst, resigned in protest the day afterwards. Said “I didn’t know anything about this, I think this is terrible for the country and I am resigning, I can’t work for a President who would do this.”
Shockingly to me from the historical record because this is somebody, Randall, you and I will recognize as a chief villain from the Regan administration. Ford’s Chief of Staff Al Haig, of “I’m in charge now” fame said (quote) “The President (Gerald Ford) was alone when he pardoned the President Nixon. His staff was, to a man, against it.” It was – again, Haig may have some self-serving things there and I would not want to put Al Haig on the stand as a witness, but this was radically unpopular within the Republican party. Radically unpopular within the public at large. Looking at the Gallup analysis they say, in analyzing their own poll data contemporaneously, “Ford’s job approval rating suffered as a result of the Nixon pardon. He began his term in office with very high ratings, 71% approval ratings.” That was August of ’74. “By the end of September only half of Americans approved, by the end of the year his approval rating dipped to 42% and averaged 44% for the rest of his administration.”
Thomas: And back then that used to be bad.
Andrew: [Laughs] Right, yeah.
Prof. Eliason: [Laughs]
Andrew: I think that is to suggest, and I go through the data because I am sympathetic to the argument that says that there’s kind of a “move on” contingent. There is – the way in which you reconcile is by saying alright, well that happened but the bad man’s gone and he’ll die soon so it’s done. But I think we also have some historical precedent, and maybe this dovetails with Thomas’s point on George W. Bush, for “no wait, this is still an open matter” and not bringing it to a close, not allowing us to achieve some kind of notion of finality, is also deeply unsettling. I think you know this as a former prosecutor. That’s often the only thing you can offer to victims of crime is to say hey, we had a public trial. We got this out and we achieved a resolution. What are your thoughts on that?
Prof. Eliason: Yeah, I don’t think we’re disagreeing that much.
Andrew: Mm-hmm.
Prof. Eliason: I mean, I guess I’m more skeptical than you are about how much we can draw from a 50-year-old precedent of Nixon, and there’s also a slightly different dynamic involved and I’d have to think through how it affects it, but of course that was still a Republican Department of Justice.
Thomas: Hmm.
Andrew: Mm-hmm.
Prof. Eliason: So, it would have been, you know, the Ford Department of Justice going after him, not the opposing party going after him after he left office. That makes it different, we would have to think about how exactly, but it’s not a pure precedent for that reason as well. Again, I think what I said earlier, I think blaming the political divisions over the last 50 years and assigning that primarily to the Nixon pardon seems to me potentially too simplistic. [Laughs]
Andrew: Oh I – and if I were doing that I would agree.
Thomas: And we’re gonna have to cut in here.
Andrew: [Laughs]
Thomas: We went an incredibly long time with Professor Randall Eliason that challenges the limits of bandwidth and Google drive and episodes [Laughing] length in general, and by the way our esteemed editor’s time. I’m not gonna say who it is, whoever the genius who edits our shows-
Andrew: Oh! They are amazing.
Thomas: Can only do so much. Yeah, they are great. Who can only do so much in time. So here’s what we’re doing, everybody. Sorry to interrupt, we’re gonna do part two of this debate next week. But, if you are one of our fine patrons at patreon.com/law, you will get access to that early! Very early. Not instant ‘cuz, you know, there’s a lot of editing involved in this two-hour debate.
Andrew: [Laughs] It is at two-hour, yeah.
Thomas: Yeah. But you will get it way early, so if you sign onto patreon.com/law, we will release that episode early. For everybody else, terribly sorry but that is going to be – it’s a cliffhanger. You’ll have to tune in next week for the thrilling conclusion of our debate with Randall Eliason.
Andrew: I mean, could you believe it when Randall Eliason said – oh, wait. Sorry.
Thomas: Oh no, you better not! [Laughs]
Andrew: Can’t give it away!
Thomas: Nope, can’t give it away!
[51:03.3] [Commercial]
T3BE Answer
[53:28.3] Segment Intro
Thomas: Now it’s time for T3BE answer time! Okay, Andrew, let’s find out if I porked my streak but in a good way! Here we go!
Andrew: [Laughs] Yeah, this was a question about the uh, risk of loss in a contract for deck chairs. Long confusing fact pattern, but essentially a man looks through a catalog, calls up a manufacturer says “I want you to make me four of these deck chairs,” later changes his mind, sends an email, it’s not opened. The manufacturer makes the chairs, sends them out, but they get damaged in shipping and then the man gets these chairs he doesn’t want that are broken, shows up on his doorstep and says “well I’m not paying for this.” Manufacturer sues him, and the question is who is going to prevail in the lawsuit for breach of contract?
You went with D, the man, because the chairs were damaged in transit. For that to be the correct answer what would have to happen is that the risk of loss would have to stay with the manufacturer from manufacture to acceptance.
Thomas: Yeah.
Andrew: It’s the manufacturer’s fault that the chairs were damaged in transit. Yeah, uh, not gonna beat around the bush here, the answer that stuck in your craw as “I’ve kind of heard of this,” but ultimately you did not go with was B, the manufacturer because the risk of loss had shifted to the man. That is, in fact-
Thomas: Augh!
Andrew: -the correct answer.
Thomas: God, I almost! [Groans] But I didn’t.
Andrew: You were thinking about it.
Thomas: Somewhere in my mind, I remembered for some reason shipping – risk of loss shifts when you ship it or something. It doesn’t make any sense to me, but yeah. Explain yourself, Andrew! [Laughs]
Andrew: Yup! Okay, most importantly there is a valid contract here. The man’s-
Thomas: Yeah.
Andrew: -efforts to rescind in no way invalidate the contract. Then the question is who has risk of loss? A carrier contract is formed when a third-party carrier carries your goods. Carrier contracts can be either shipment or destination, which affects the risk of loss. Shipment contract generally does not require the seller to deliver the goods to a specific destination and it is the default when a contract is silent regarding the other terms of delivery. That’s what we have here. In a shipment contract the seller must get the goods to the carrier, make appropriate arrangements for shipping, and notify the buyer of the shipment. If the seller does this it is not liable for any of the damage that occurs during transit.
That’s the difference between a shipment versus a destination contract.
Thomas: Yeah.
Andrew: This contract is a carrier contract. Third party is delivering the goods, not the manufacturer. It become the shipment contract as opposed to a destination contract because the contract is silent, so that’s the default.
Thomas: Yeah.
Andrew: Manufacturer got the goods to a third party-
Thomas: [Sighs]
Andrew: -shipper, made all the arrangements, notified them, the manufacturer not responsible for losses that occur in transit in that case. This is another one of these, and I never really appreciated it, how much in law school, but my contracts professor would often say, like, you know we, we would be talking about X or Y and he would say “right, but at the end of the day the contract’s gonna specify.” [Laughs] This is the kind of thing that you don’t just sort of leave silent and say oh, what did they do in 13th Century Saxony?
Thomas: Yeah.
Andrew: Oh, this is a shipment carrier contract? You know, that’s the kind of thing that the terms will specify.
Thomas: Important lesson here, though, is that if it’s silent then for some stupid reason we put the burden on the buyer to work it out with the shipping company, which makes no sense to me at all because that relationship is a onetime deal.
Andrew: Yup.
Thomas: When somebody – if there’s a shipping company that ships something to me, I’m like what, who are you? You’ve ruined my goods, now I need to interact with you and get the money back, versus the company that arranged the whole thing, chose that shipping company, they don’t have to deal with it.
Andrew: Yup.
Thomas: That seems completely backwards to me. It sucks because I did remember something about that, but in my mind, I was like well it specifically brought up the fact they made the arrangement so I thought that would be enough to maybe swing it the other way, but gosh! I did not pork my streak! Pork the streak, Thomas! I haven’t done it!
Andrew: I know.
Thomas: Ah! Still porked.
Andrew: It’s meant to sort of draw the line – I think you’ve analyzed this exactly correctly, which is that the default rule-
Thomas: Sucks.
Andrew: -is meant to draw the line of- well it does! But it’s meant to say “hey, when can the manufacturer have peace of mind?”
Thomas: Mm-hmm.
Andrew: When can they say alright, we’ve done everything we have to do and the default rule is if we get it, if we arrange for shipping, nothing says anything otherwise, then once we get goods to whoever’s going to ship it and we’ve paid them and done our due diligence, now it’s out of our hands, now the risk-
Thomas: Yeah.
Andrew: -shifts to you as the buyer.
Thomas: I’m so glad finally someone’s thinking of the poor manufacturers in these situations and not the customer.
Andrew: [Laughs]
Thomas: [Sighs] Frustrating.
Andrew: Again – yeah-
Thomas: It’s just wrong, but I also got it wrong. I have not porked my streak. I need to pork my streak, and now since I haven’t porked it, here’s the sad music.
[T3BE Defeat]
Thomas: Alright, Andrew, hop in your time machine and change the law so I got this one right.
Andrew: [Laughs]
Thomas: No, alright, tell us who actually got it right.
Andrew: You know, Thomas, this week’s question was so difficult that I’m gonna pick a non-winning answer that illustrates a point you and I didn’t even talk about, but helps illustrate exactly how tricky this question is.
Elsie is the winner, that is @lcmpbll, a bunch of characters with no vowels on Twitter. Elsie writes “C. The UCC requires contracts for the sale of goods over a certain amount of money to be in writing. I believe $600 is over that amount. It doesn’t sound like there was a writing until the email cancelling the order, so no contract existed.”
Well, this analysis, like yours, is absolutely perfect except for one tiny little bit, so I thought that this was great. Yes, UCC requires that contracts for the sale of goods over $500 be in writing, but what does “be in writing” mean? It means that there must be some written evidence that indicates the quantity of the goods purchased and is signed by the party to be charged. You see where this is going. That’s why they put in all of those details about the email that the man sent. He said “I am no longer interested in purchasing the four chairs from you that we agreed upon yesterday, I’m sorry for the inconvenience, and he signed it at the bottom. So [Laughing] sending the email, even though it was never opened and never read, and even though it was backing out of the contract, was actually the thing that verified the contract, that satisfied the statute of frauds.
B is the correct answer, but all of the lawyers who worked through and thought it was C, I think that’s very, very understandable. I think it goes to show you just how hard the bar is and congratulations Elsie, you helped us work through this question. Even if you didn’t get it right, you’re still this week’s winner, and everyone give them a follow, that is @lcmpbll, and congratulations on being this week’s person who expanded the discussion of T3BE!
[1:01:56.6] [Patron Shout Outs]
[1:12:50.2]
Thomas: And that’s our show. Oh man, what a debate, can’t wait to get to part two. It’s gonna be super exciting. I wish there was any way to get to that early. Oh, wait a minute! [Laughs]
Andrew: Yeah.
Thomas: There might be! Okay, that’s our show, thank you, see you next time.
[Show Outro]