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Thomas: Hello and welcome to Opening Arguments, this is episode 454. I’m Thomas, that’s Andrew, how’re you doing, Andrew?
Andrew: I am fantastic, Thomas, and I really, really am! We are coming off of the strangest day in American history yesterday, and I’m back to feeling really good about Tuesday’s election results and about where we’re headed as a country.
Thomas: Why don’t you ask me how I am?
Andrew: How are you, Thomas?
Thomas: I’m fantastic!
Thomas: I just wanted to also be fantastic.
Thomas: I rarely am, but no, the fascists got me down for a minute-
Andrew: That will do.
Thomas: Genuinely, I am so happy about the Georgia results. I hadn’t dared to dream, Andrew! I was not gonna look at a poll, I couldn’t do it, it’s too heartbreaking. I assumed the polls would show Democrats had a great shot and oh, up by one point or something. I don’t even know, I didn’t look, but that’s what I assume, and then what would happen is inevitably the bad guys would win, the goblins would take Helms Deep, it would go the other way, and then Loeffler and Purdue would win by like .4 points and then – I couldn’t do it! I just could not emotionally handle it again, so I didn’t look at polls, I didn’t look at the results, I waited as long as I could, and they friggin’ did it! They won, Andrew! We won! I’m so happy!
Thomas: It’s amazing! There’s no joke here, I’m just so happy!
Andrew: You should be. I share that, and in our main segment I wanna share stories from our listeners because we didn’t just sit this one out on the sidelines or comment on it, we got involved and in an election this close everybody who took part can feel like, you know, they were part of the boots on the ground that made this happen. I was like you! [Laughs] We just went on Ice Cream Social the other day and I cracked the joke that I had 538 blocked on my computer.
Thomas: [Laughs] Yeah.
Andrew: Using one of those porn blockers? But it’s true, I did not go to 538 until election day, and then I was like “alright, how much? The campaign has been telling me, it’s all Get Out the Vote, it’s within the margin of error,” but like you, underlying dynamics on that race, on those races, were super bad. Candidates were running a couple of points behind Biden on November election night.
Andrew: Democrats tend not to do well in runoffs.
Thomas: There were so many – yeah, I mean, we could talk about it forever. There were so many reasons that it could go either way so it was hard. Like you said, Democrats did underperform Biden. I could have seen a solid argument that, you know, enough people, not a ton but 1%, 2%, whatever it would be, of voters in the general just could not stomach Trump anymore and wanted to vote for Biden because he looked like a totally, you know, bland alternative.
Thomas: But they weren’t really Democrat supporters and they weren’t gonna vote. I could’ve seen that, and honestly maybe kinda all these factors. The other factors would be, you know, how are Republicans gonna be excited to go vote in a special election after they just lost? That’s a tough ask, you know, but on the other hand there’s the racism and the anti-Semitism. There’s the branding them both as radical leftists, especially, hmm, curiously enough the one who is black got most of that branding.
Thomas: All that combined, and honestly it kinda seems like all those factors were there, and maybe – I mean, we’ll have to analyze it after the fact, but maybe it all just kinda got us to this. It was still super close.
Thomas: It was still within a point or – Warnock within, what, a point or point and a half?
Andrew: Yeah, a point and a half, and under a percent for Ossoff. Let me throw in two more pessimistic bits: Ossoff had a third-party libertarian challenger in the general election and you would think that those libertarian votes-
Andrew: -would probably go to Purdue and not to Ossoff, but again, yeah, overcame that. Then, we’ve talked about this before. I have been trying to engage with arguments from, you know, people who are centrist, left-leaning Republicans, people in the business community where when the question is “do you want Democrats to have control over the presidency, the House, and the Senate?” there’s that kind of-
Andrew: Inherent “well, let’s have some checks and balances.”
Thomas: Oh yeah, people who have gotten their tax cut from the Trump administration but are like, you know, not fully Trumpers are like “oh, that would be great to have a split government.”
Thomas: That means nothing’s happening to my giant tax cut that blew a hole in the budget.
Andrew: Exactly right. Yeah, so we overcame all of that and when I say “we” [Laughing] I mean-
Thomas: Stacey Abrams! [Laughs]
Andrew: [Laughing] Yeah, I mean Stacey Abrams, I totally agree with that! But I also mean our listeners and our friend’s listeners. We’ll get into that in the main segment.
Thomas: Yeah, look, we deserve a little happiness here, Andrew. We deserve it. This is a little seven-minute victory lap for us. Seriously, I’m so happy! Even those fascists – you know, they got me down for a few hours. Yesterday was a rough day. We all aged several years yesterday.
Thomas: By yesterday I mean Wednesday, of course. When you’re hearing this, I suppose it could be Friday, but anyway, got me down for a little bit and then, you know, after they cleared out all the fascist trash out of the Capitol… well, not all of it. Okay. [Laughs] Hawley, I think, was still there and Ted Cruz and some other fascist trash, but after they’d cleared the unelected fascist trash out of the Capitol, I couldn’t help it, I was back to feeling great again! It’s just so good that we have control of the Senate! It’s so good! Okay.
Andrew: It is.
Thomas: We deserve that little victory lap, Andrew.
Thomas: We’d better get on with the rest of the show.
Thomas: I know you are very excited, though, to announce what Tuesday’s show is gonna be.
Andrew: Yeah, Tuesday’s show is Donald Trump is going to prison in Georgia! We are going to cover the phone call, spoiler alert I think far more convincingly than a lot of law Twitter and people that I respect, I think it is a slam dunk-
Andrew: That that hour-plus call from Trump to Georgia Secretary of State Brad Raffensperger violates Georgia State law, is beyond the reach of any pardon, and if they so choose, they can send Trump to prison. We’re gonna talk about that next Tuesday. I didn’t wanna spoil our – I mean, that’s obviously good news if and when that happens but, you know, dissecting into an hour of Trump playing amateur mafia Don I thought would bring today down a little bit, and we have a ton of other stuff to cover.
Thomas: Yeah, we’ve got a coup attempt to talk about. [Laughs] No, I’m just kidding.
Thomas: No, but really, we do have a coup [Laughs]
Andrew: That’s true. [Laughs]
Thomas: Let’s go to the rest of the show, here.
Yodel Mountain – 25th Amendment
[8:20.7] [Segment Intro]
Thomas: You wanted to do a maybe a quick thing on the 25th Amendment that’s definitely not gonna happen because people are cowards, but just in case, you wanna tell us what the 25th Amendment’s about?
Andrew: Yeah. I wanna tell you, as we are recording this Adam Kinzinger, Republican Congressman from Illinois, has publicly called for the invocation of the 25th Amendment. Various other academics and Democrats and the kind of sources that you would imagine calling for invocation of the 25th Amendment have done so, and I thought I would answer some quick questions about what that is, how it works, whether it’s plausible. At the outset I will say it can go hand in hand with impeachment.
Andrew: The 25th Amendment is designed to cover presidential succession, that’s its first three sections, but also to cover the situation that – I guess our founding fathers didn’t think about, because you know, medicine in the 18th Century was leeches and restoring your body humors and I dunno what else, but the idea that a President might, for example, be temporarily incapable of discharging the duties of the office of President of the United States. Section 4 of the 25th Amendment provides for a way to temporarily replace the President. A lot of folks are saying let’s invoke that and stop this lunatic from being able to make decision.
Thomas: You say “let’s,” and we’re seeing, as of right now – again, as always in these last four years but especially now, this is a breaking news kind of day.
Thomas: We’re recording, you know, on Thursday in the afternoon, so we are seeing some calls, you mentioned Republican, there’s also, I believe, another Republican – let’s see, Maryland Republican governor Larry Hogan, calls for resignation, but who really needs to be calling for it? Who are the people – it’s the cabinet, right? What are the signs of whether or not it’s just people calling for it, it’s actually happening?
Andrew: Yeah. As always, you cut to the main issue. So, Section 4 says that the Vice President and a majority of (quote) “the principal officers of the executive departments or of such other body as Congress may law provide.” Scratch out that second half, Congress has not by law provided for any such thing-
Andrew: And there’s no way to quickly pass a law for any, right?
Andrew: Don’t think that that’s gonna happen. Must be the Vice President plus a majority of the principal officers of the executive department, which means the cabinet.
Thomas: [Laughs] Unfortunately the cabinet is every villain from – it’s Negatron, it’s the Joker. [Laughs]
Andrew: [Laughs] I went through, so let’s talk about this. Anyway, what they have to do is they have to transmit to the President Pro Tem of the Senate, that’s Chuck Grassley, and the Speaker of the House of Representatives, that’s Nancy Pelosi, their written declaration that the President is unable to discharge the powers and duties of his office at which point the Vice President shall immediately become the Acting President.
Then the President can try and take back the powers by transmitting in writing a letter that says “I’m fine!” If that happens Congress gets two days to decide, to assemble, and then vote on whether the President is in a position to resume the office and they must render a decision within 21 days. Again, there are only 14 days left in the Trump presidency, well 13 now. They wouldn’t ever have to decide, they could just kind of run out the clock. That’s the condition of how to strip Donald Trump of power for the next 13 days, which strikes me as a very, very, very good idea.
Andrew: Is it plausible? First, let’s start off with why did I say the principal officers of the executive departments are the cabinet? Because there’s an Office of Legal Counsel memo from 1985, which I’m gonna link in the show notes, that says that. Now you might be thinking, but Andrew, you’ve told us over and over again the Office of Legal Counsel memo is just some dude writing a document, and that’s true! That is an employee of the executive branch writing words that is that person’s opinion of how to interpret the 25th Amendment. It is not – it’s a memorandum opinion, it’s a memo to the Attorney General.
It was written by a Reagan guy named Ralph Tarr, and that’s it. This is just Ralph’s opinion. But that’s the best we’ve got right now [Laughs] is Ralph’s opinion. Ralph’s opinion is this means the cabinet. You might ask, does it mean the acting members of the cabinet? [Laughs] And Ralph’s opinion is it does! It means the acting members of the cabinet as well.
Thomas: Yeah, otherwise who else? I mean, most of Trump’s cabinet is just acting members. I guess you would not have an ability to do a 25th if, you know, if we were in this situation and Trump actually, you know, had a health concern or something it would be weird if there was no way to do the 25th Amendment.
Andrew: No no no, but what I mean is if you just excluded the acting secretaries than it would be a smaller number that would constitute a majority-
Thomas: Well, aren’t they all [Laughs] How many are?
Andrew: Well, I’m gonna go through-
Andrew: Very, very quickly. We actually want it to include Acting Secretaries, because the Acting Secretaries-
Thomas: That’s less the Emperor Palpatine’s and the other villains?
Andrew: Yeah, are more likely to vote in favor of it.
Andrew: You know, there’s this sort of crazy double-bind right here. Literally as we hit record, I got an update from the always wonderful Ashley Smith who said that Elaine Chao, Secretary of Transportation and wife of Mitch McConnell-
Andrew: -is about to resign.
Thomas: Clownhorn Elaine Chao is all I have to say about that.
Andrew: [Laughs] I agree with that! But Elaine Chao is on my list of principal officers who might vote for the 25th Amendment. It’s not a great list. When I say “might,” we’re talking about some real villains on this list like Elaine Chao and Steve Mnuchin. Former Georgia governor Sonny Perdue, who is the Secretary of Agriculture. Alex Azar, who is a monster at Health and Human Services.
Thomas: That one main goblin from The Hobbit movies?
Thomas: That they set up as like a villain? That guy.
Andrew: Uh, these are the people who I count as potential allies. Then there are kind of the unknowns, and remember that the danger with the unknowns is … my biggest mistake. Literally, the thing I’ve been most wrong about in my entire life, and that was oh hey, Bill Barr seems like career Republican, you know, probably not gonna be all that bad, right? This is the Bill Barr rule for people that you don’t know who the hell they are. If I asked you to name the Secretary of Energy – not an acting guy, actual Secretary of Energy, I could not have done this until an hour ago prepping for the show. It’s a guy named Danny Ray Brouillette.
Andrew: He’s a Louisiana politician, Danny Ray. I dunno! Seems like a guy! Doesn’t seem to be an evil Trump henchperson, but could be! Like I said, neither did Bill Barr, so I have him as a possible yes. If you wanna know who the definite “no’s” are, I count at least seven.
Thomas: What’s our denominator again?
Andrew: So, we gotta hit on every other person.
Thomas: Geez, that’s not happening! [Laughs]
Andrew: Yeah, listen to this. So, Wilbur Ross, the person who was appointed Secretary of Commerce to add racist questions to the census.
Andrew: Don’t think he’s crossing Trump.
Thomas: It’s like actually in the job title. Like “Secretary of Racist Questions for the Census.” [Laughs]
Andrew: Yeah! It is. Betsy DeVos-
Thomas: Oh my god.
Andrew: The sole survivor from Trump’s original – well Betsy DeVos and Ben Carson, the two [Laughing] sole survivors from Trump’s initial round of appointments. I mean, they are Trump loyalists to the core. I don’t even know who the Secretary of Homeland Security is for purposes of voting. Chad Wolf is the unlawfully acting-
Thomas: Oh right!
Andrew: Right? Who gets to cast that vote? I think no one.
Andrew: Yeah. Gene Scalia at Labor.
Thomas: He’s horrible.
Andrew: Good old Mike Pompeo as Secretary of State.
Thomas: I read an article about Gene Scalia, horrible, worse than his dad.
Andrew: Yeah, I tried a case against Gene Scalia, he’s a monster. [Laughs] I’m counting Acting Attorney General Jeffrey Rosen as a possible yes? But who knows? Finally, you’re like okay, if Rosen is a potential yes who’s the seventh definite no? It’s a person I hadn’t heard of before named Robert Wilkie, who is the Secretary of Veterans Affairs, who is a … politically compromised racist. I’m pulling this only from his Wikipedia article.
Three weeks ago, an Inspector General for the Department of Veterans Affairs informed the Department of Justice of possible criminal conduct by Robert Wilkie. He sought to discredit – again, I’m gonna quote from Wikipedia here, “a congressional staffer who said she was sexually assaulted. The investigation started a couple of months earlier amid a news report that was published in February of 2020. Based on the IG report, six major veterans’ organizations,” and again, these are mostly right-leaning veterans’ organizations, the Veterans of Foreign Wars, AMVETS, Vietnam Veterans of America, Paralyzed Veterans of America, these are not liberal groups, all called upon Trump to remove Wilkie and he was considered a dead man walking. This is somebody who 100% is in Trump’s pocket looking for a pardon.
In addition to that, Wilkie has a long history of calling confederate President Jefferson Davis a “martyr to the lost cause,” and “an exceptional man and an exceptional age.” Somebody who’s spoken at pro-confederate gatherings and called abolitionists – abolitionists! “Radical mendacious enemies of liberty” and said that “the confederate cause was honorable.” I’m not gonna keep reading this, because this is a happy show. That dude is not voting to invoke the 25th Amendment.
Andrew: He’s possibly more crazy than Donald Trump, so-
Thomas: It’s not happening!
Andrew: Yeah, basically it would take the perfect storm. It would take every remaining non-total monster. It would take several people who are monsters!
Andrew: Elaine Chao, Steve Mnuchin, they are monsters! It would take those people, plus hacks, and they’d all have to line up, they’d all have to sign the letter. I think you could get Pence to sign the letter after yesterday, where the people he’s been courting for four years threatened to rip him limb from bloody limb.
Thomas: I was going to ask you, the VP is a must, right?
Andrew: Is a must.
Thomas: It has to be?
Thomas: Okay. That’s kind of an interesting situation. The whole cabinet was like oh my gosh, the President and the Vice President, something’s wrong with them. It wouldn’t matter, nothing you could do.
Andrew: If mind-controlled aliens, mind controlling aliens.
Thomas: I was gonna say, the aliens are mind controlled also.
Thomas: And they’re gonna come mind control. [Laughs]
Andrew: If the aliens that are controlling the aliens land and use the same-
Thomas: I don’t know why you added that intermediate step, but you know, it’s just for fun!
Thomas: [Laughing] While we’re constructing hypotheticals.
Andrew: Yeah, yeah. But no, that’s right. The aliens land, they’ve got a mind-control ray. They very clearly, both the President and the Vice President are walking around like Scooby Doo zombies and they’ve got the little spirals for eye pupils.
Thomas: Yeah! [Laughs]
Andrew: People are pointing and they’re like “look! His pupils are spirals, guys!”
Andrew: There’s a pod growing out of his neck, we know they’ve been compromised, you are correct. The 25th Amendment does not allow you to go down the line of succession. If the President and Vice President are both incompetent at the same time then the country just dissolves, that’s just it.
Thomas: Yeah, unless you can do, actually do an impeachment, but-
Andrew: And that’s what would happen, but again, impeachment-
Thomas: You say that! [Laughs]
Thomas: I no longer have confidence that anything would result in impeachment-
Andrew: Fair enough, alright! There’s your 25th Amendment, keep pushing for it! Not gonna happen.
Thomas: Yeah, and I just, you know, for anyone who doesn’t know Elaine Chao, I mean this is someone who’s profited off this administration. Obviously, the wife of Mitch McConnell. Trump somehow got rid of whoever was investigating her so she has profited off this and this, just in case any of our listeners had the wrong impression, this resignation is not anything but just an abdication of duty. This is someone who is like “well, instead of staying here and trying to fight and trying to get other cabinet members to invoke the 25th I’m just gonna quit. I’ve profited, my job’s ending in however many days anyway, probably, so I’m just gonna leave with all the stuff, with all the paintings from the walls and all the candlesticks and stuff I can grab, that I’ve already stolen, I’m just gonna leave.” That’s what this is, she is not a hero.
Andrew: No, definitely not. Now that that’s sort of out of the way with the 25th Amendment [Laughing] I want to underscore what I texted you, I think rather inauspiciously like ten minutes before the confederacy of dunces stormed into the actual Capitol itself.
Andrew: While that was a distraction, I don’t think – I think in many ways it underscored the point that I made, which is this is peak Yodel Mountain. [Laughs] It shouldn’t have to be “President leads armed insurrection,” and again, remember the definition of Yodel Mountain. Yodel Mountain was not “profiles in courage, Republican Party grows spine and conscience and is on the side of goodness and light.” No, no no. All of these people that we’re about to laud in some way we are lauding for what is mostly a self-interest calculation. That’s always what Yodel Mountain was about, the point in which selfish political operatives in the Republican party would say “alright, I stand more to gain by repudiating Trump however much that may hurt me in my next primary, than I stand to gain by standing with him, which will crush me in the next general election.”
That tide has turned. You can tell that that tide has turned based on what happened with the counting of the electoral votes on Wednesday.
Thomas: Yeah, there’s nowhere else to go. I mean, I agree with you, we’re finally at the end of Yodel Mountain, but what actually happened was the Republicans in Congress kept building platforms under the yodeler to extend further, further and further up the Yodel Mountain of Shame. They kept it going for as long as they possibly could, and only now that there isn’t a single other election that they can try to profit off of Trump’s name for, now, even now it’s not enough of them are dropping him. Some are, it’s amazing.
Andrew: Yeah! No, that’s right. [Laughs] If the schism is between Mitch McConnell on one hand and Ted Cruz and Josh Hawley on the other hand, that’s not a great place to have a schism, but that’s where we are. If you are thinking okay, I still have a Negatron bone in my body, you shouldn’t. After order was restored and the Senate reconvened at 8 pm the sedition caucus in the Senate, the number of Senators who were on record as supporting objecting to the certification of the electoral vote count, began at 14 and by 2 am was down to 6.
Andrew: Again, those 6 include the thoroughly evil and opportunistic Ted Cruz and Josh Hawley, who by the way are now so – this is the only time. I keep defending these folks, Ted Cruz obviously a year ahead of me in Harvard Law School, Josh Hawley graduated with honors from Yale Law School. These are not stupid people other than they’re unbelievably stupid in thinking that by sucking up to the Trump base they’re going to pick up the Trump base as their supporters in 2024.
Andrew: Because all that has to happen is Don Trump Jr. lifts his head from his desk full of cocaine a la Al Pacino in Scarface, and looks up and goes “yes, I declare my candidacy for presidency of the United States” and every single one of these idiots that you are debasing yourself, and the country, and the Constitution for, Ted Cruz and Josh Hawley, will say “oh yeah, no, why would I want a career politician like Ted Cruz-
Andrew: -when I could have a coked-up lunatic like Donald Trump Jr.?” It’s … it’s mind boggling to me that they don’t realize this.
Thomas: Yeah. It really is.
Andrew: [Laughs] All of this effort to overturn the election, we told you it wasn’t going to work, and it had a side benefit. It finally pushed Mitch McConnell and Lindsey Graham into delivering a speech from the floor of the Senate that says “come on.” Lindsey Graham essentially, you know, he was – to me, again, not making a joke here, he seemed drunk to me. Not just a little bit-
Thomas: Yeah, a lot of people said that. I didn’t see it.
Thomas: I should go watch this.
Andrew: Oh, his shirt was like almost untucked, he was kind of like rolling back. As somebody who’s been Lindsey Graham drunk before, he seemed good on drunk. And yet, his speech from the floor was a couple of minutes of “I cannot believe Ted Cruz is looking at the 1876 election as a model of how to move forward, because that was corrupt as all hell and we don’t need to replicate that here, and by the way, I’m done.” He basically said, like, “I’ve tried to be as helpful as I can”-
Andrew: (Meaning to Donald Trump) “But now I’m done and I’m out of here.” That’s right, these folks are done and I hope – Optimist Prime in me – you know, its rats deserting a sinking ship.
Thomas: But so many of them are staying on the ship and saying it’s not sinking! Or like it didn’t, the ocean was illegally put there. [Laughs]
Thomas: What?! Oh my god!
Andrew: I’m with you? [Sighs] I do think it is helpful that at this point you are left with – the Trump supporting line is “George Soros deputized antifa commandos using the technology of the man from Uncle to put on white face to infiltrate a Trump rally and then instigate violence on the Capitol to discredit President Trump and something something deep state lizard people.”
Thomas: Yeah, you’re right, that’s so crazy that only … all of Fox News and 37% of Americans are gonna believe that. That’s oomph!
Andrew: That is so crazy that Fox News repudiated that.
Thomas: No, Tucker Carlson’s-
Andrew: Not Sean Hannity. Yeah, yeah, yeah.
Thomas: Tucker Carlson said it’s antifa.
Andrew: Of course.
Thomas: I only bring it up because I’m not arguing with you, I’m saying after last night on that stream which we also put in the feed, so if you haven’t seen it or listened to it, check it out. It was a lot of – pft, it wasn’t fun, but it’s important stuff with Allison Gill as well. At a certain point we were saying look, if this – we weren’t predicting that Fox News was gonna change its ways or something, but like if this if this coup attempt – an actual coup attempt – can’t get Fox News to realize the danger of the lies they’re telling, I don’t know what can. Then an hour after that Tucker Carlson saying “yeah, it was probably antifa.” You know, there’s no – it is not going away, is all I’m saying. Trump is going away, we are getting Trump out of office, I’m not saying that they’re gonna – you have been right all along that barring a close enough election, which we didn’t have, there wasn’t a way to steal it, he’s out, but these people are not going anywhere. The lies are not going anywhere. It really isn’t.
Andrew: I don’t disagree with that in any way whatsoever. As you mentioned, we talked about this yesterday on the YouTube live stream. The issue of our time, of now and the foreseeable future, is how do we educate our citizenry to be able to tell the difference between lies and truth? I don’t have an answer for that, other than to say the reason I don’t have an answer for that is because that is outside my jurisdiction. You cannot legislate the ability to discern truth from falsehood. I don’t know what we can do, but yeah. At the point in which somebody will look at you and go “yeah, that crowd that Rudy Giuliani just spoke to-
Andrew: -and escorted to the Capitol was probably secret antifa terrorists deputized by George Soros.”
Thomas: Right, yeah, sometime along the route of directly being incited by Trump and Giuliani, somewhere along the route, they did the, I dunno, body switching, double [Laughs] Somehow antifa infiltrated them in that small time. That’s amazing.
Georgia Senate Win Celebration
[34:54.9] [Segment Intro]
Thomas: Alright, got that out of our system, Andrew. It is good news day, I’m already back! It’s such good news I’m already back, just like that I’m back to feeling good. It’s just so good. It’s so good that we won! What did you – where do we wanna start today with this good news episode?
Andrew: First I wanna talk about the timeline, because a lot of people are asking, you know, particularly watching Kelly Loeffler reverse course. She was part of the sedition caucus-
Andrew: Then in the 8 pm session on the 6th of January got up and gave a like weird rambling speech of “I can no longer in good conscience support the people that I support,” again-
Andrew: It was weird, but you know, hey. I’d rather have weird and not treason than weird and treason.
Thomas: Yeah! There were some great tweets about the election, by the way, if you missed ‘em. One of ‘em was like “good thing all those jeans and flannel that Kelly Loeffler bought are probably within the 30-day return limit.” [Laughs]
Thomas: And also we’re gonna find out that she secretly invested in Ossoff and is actually making a killing on this! [Laughs]
Andrew: Right, I saw the jokes on you that-
Thomas: Or is it Warnock? I can’t re- sorry, I think I probably switched which one, yeah. They invested in Warnock.
Andrew: Yeah, that Loeffler bought a ton of Warnock stock on Monday.
Andrew: That’s excellent! [Laughs]
Thomas: Ah, good times.
Andrew: Here are the mechanics of what’s happening. David Purdue was running for reelection to his Senate seat. His term ended at noon on January 3rd of 2021. Even though he was still running in that election there was no winner and the previous term ends – this is one of the beautiful things about the Constitution, and it’s one of things that I’ve been telling people since November, October, 2019, 2018. Donald Trump can’t stay in office indefinitely. The Constitution puts hard limits and says “okay, your term is up unless you can prove that you’ve gotten elected again.” His term ended, that seat is vacant at the moment.
Thomas: Oh, so we’ve seated the new Senate?
Andrew: No no no.
Thomas: Oh, sorry.
Andrew: Yes, we seated the new Senate on January 3rd at noon.
Thomas: Oh! Cool.
Andrew: And so the Georgia seat is vacant at the moment.
Andrew: As soon as the results are certified by Georgia Secretary of State Bard Raffensperger.
Andrew: Then Rafael Warnock will take that seat and will serve for a full 6 years. He’ll run for reelection in 2026. The other seat is the middle of the term of Johnny Isakson, who was just a nondescript Georgia garbage person.
Andrew: I mean garbage human being.
Andrew: I’m not insulting our sanitation engineers.
Thomas: No, he’d be great if he was an actual garbage worker, that would be better.
Andrew: That would be amazing. Kelly Loeffler was appointed to fill out that term, which ends January of 2023. In other words, it has two years left to run, which is 2021 and 2022. She will continue to serve in that capacity, although-
Andrew: In a way that I think would be as disinterested as Marco Rubio, until that election is certified and John Ossoff will take over.
Andrew: At which point Ossoff will begin immediately running for reelection.
Andrew: Because, again, he’s only got two years.
Thomas: So Warnock will, right?
Andrew: Warnock has 6 full years.
Thomas: Uh, I think you switched it.
Andrew: You are correct, I’m sorry.
Thomas: We both switched it! Because I remember thinking it was more important – I mean, it’s marginal, but it was more important that Ossoff win than Warnock.
Thomas: Because Ossoff gets to serve a full 6, doesn’t have to run again for 6 years.
Thomas: Warnock’s gonna have to run again in two years and basically start running now. [Laughs]
Andrew: That is correct, and we can leave this in. I’m happy to leave that in for our listeners.
Thomas: It’s a weird rare situation that we’re in where both seats are up the same day. That doesn’t happen often, I would imagine.
Andrew: Yeah, this is the only scenario in which it can happen in the Senate because your Senate seats are staggered so that they don’t come up at the same time. Yes, Ossoff is gonna serve 6 full years. The reason that I’m having such difficulty keeping it straight-
Andrew: -in my mind is that Warnock’s margin was larger-
Andrew: And thus it’s easier to certify. Both are outside of the mandatory recount levels, which is a half of a percent in Georgia. Either candidate could call for a recount, but I suspect that will not happen.
Thomas: When you say that, can they call for it at any margin?
Andrew: I believe in Georgia so long as the candidate pays for it-
Thomas: Which Loeffler’s like “oh, here, I just found a billion in these pants I was gonna return.”
Thomas: Oh yeah, sure.
Andrew: She could, but I don’t think she has any desire to – you don’t get to be a billionaire-
Thomas: I just found a billion quarters in my [Laughs]
Andrew: But you don’t get to be a billionaire by, like, throwing-
Thomas: Wasting money on pointless recounts?
Andrew: -several millions of dollars at a job you don’t want and have no chance of recovery.
Thomas: That’s true, that’s true. [Laughs]
Andrew: Yes. In any event, we are looking for that certification from Raffensberger. Now you might be saying, well, I get that he’s been publicly berated and intimidated by Donald Trump, but he’s also a Republican. The people of Georgia thought about that and he must complete that certification on or before January 22nd. Two days after President Biden is inaugurated. You know, we will not have a President Biden until January 20th anyway, the net effect of that is give or take 48 hours, Joe Biden will take office, will assume the office of President of the United States and will do so with a Democratic House and Senate.
Thomas: Ah! So good! [Laughs]
Andrew: Yes, and we’ve mentioned this before, but the vote for majority leader is an ordinary vote under which the Vice President can break ties. Assuming that it breaks down on party lines there will be 50 votes for Chuck Schumer and 50 votes for Mitch McConnell and [Laughs] Vice President Kamala Harris, as her first official act as Vice President and President of the Senate, will be able to cast a tiebreaking vote for a Senate Majority Leader who is a Democrat.
Andrew: I just couldn’t be more excited. We’re gonna talk about all of the implications about this. There are all sorts of Negatron reasons to, like, yes, it gives Joe Manchin veto over substantive bills, but this is so much better than the alternative.
Thomas: It’s so good! Yeah.
Andrew: Yeah. Anybody who’s telling you, you know, this is a pyrrhic victory or – they’re just wrong and we’re gonna tell you that next week.
Thomas: Yeah, I wish we could [Sighs] I wish we could show all the outcomes on like an actual scale. You know that recent graphic that I think is kind of old, I think it made a kind of comeback, went viral again that shows the wealth, you know, the actual wealth of Jeff Bezos and you have to scroll-
Andrew: Oh, yeah.
Thomas: You have to scroll to the right of the screen for like eternity to get to the-
Thomas: We need to do that but with the outcomes. Our being ecstatic about this outcome does not mean that it’s the best outcome. The best outcome would’ve been 65 Democratic Senators.
Thomas: Oh, there you go!
Andrew: 68 which would be not only-
Thomas: 68 back in 2016.
Andrew: [Laughs] Right.
Thomas: This isn’t the best possible outcome, but the difference in this outcome, with all its limitations, with the Joe Manchin limitation, everything, the fact that it’s a very, very – literally the most fragile majority you can have, 50, exactly 50, all those limitations, it is still so much better than 49/51. So much better! If we could show it all on a scale, this outcome is miles above that outcome.
Andrew: I share and I don’t know if I can exceed that enthusiasm because that’s enthusiasm turned up to 100, but I share that. I said on social media Tuesday night, I said it to you privately and to a bunch of our friends who are in the podcasting universe. You know, I was literally, I’m not lying about this, crying tears of joy. I’m getting misty eyed here thinking about this particular segment. I wanna tell a couple of stories here, and I want you to join in. In an election this close, everything [Laughs] I get when people say “I don’t know that my voice matters, I don’t know that my vote mattered.” We, as a community, as the Opening Arguments community and as a part of the larger atheist online podcasting communities, liberal political online communities, and just our friends! [Laughs]
Andrew: Who podcast. We got together and I want to tell that story a little bit because, you know, we did it sort of piecemeal here, but I wanna give credit where it belongs.
Andrew: I wanna talk about the stories. So, Cecil and Tom, over at Cognitive Dissonance. You’ve been friends with them for like a decade, right? You knew them before you knew me.
Thomas: Oh yeah, for sure. They were probably the reason I got any sort of start. I was doing a nothing podcast and they noticed it and thought it was funny and had me on and then it grew my listenership a lot. I would not be where I am today without them, for sure.
Andrew: They were super supportive of Opening Arguments early on. They approached us in November and had come up with the idea for the Livestream to Save the Senate. We participated in that, promoted it here, and asked our listeners. We led off and-
Thomas: And we definitely won! We got the most-
Andrew: We definitely won the first two and a half hours- [Laughs]
Andrew: Of that three-hour podcast. Our listeners, again, you know, you and I donated separately during that timeslot but when I say we raised almost $40,000 dollars, our listeners gave almost $40,000 dollars in half an hour.
Thomas: We were blown away by that.
Andrew: I literally-
Thomas: I had no idea it was coming.
Andrew: Yeah. No idea at all. Collectively, the six podcasts plus CogDis raised $130, over $130,000 dollars, I think pushing 140 in that first fundraiser. A lot trickled in after at the end, and it was amazing and I called up Cecil like a week later and I said “let’s do that again.” Let’s go back, I’m willing to hit my audience a second time and ask our listeners to dig deep, and then we coordinated with the Warnock and the Ossoff campaigns. We brought in some new folks, some folks kind of outside that circle to try and broaden the range. Here I wanna transition to the story of bringing in our friends Matt and Mattingly from Ice Cream Social where we just did a guest spot on their show that dropped today. Thomas is super funny on that, and I’m okay.
Andrew: You should listen, it’s pretty good. Not a political show, and in fact, Matt Donnelly has been on this show before but has kind of a strong libertarian streak. You know, hung around Penn Jillette for a long time, not – you know, you and I are liberal Democrats and that’s the way it is. This was not necessarily that kind of place, and they immediately came in and one of the things that Matt said, and I wanna kind of tie this together. He said look, it made it easier for us to participate because you guys – that is the Opening Arguments audience – had big dollar matching donors.
We had a bunch of you who were matching, some were matching $500 or $1000, we had a couple who were matching $10,000. Matt said look, that really empowered our listeners. By the way, their listeners gave almost $9,000 dollars during their segment, which is tremendous. He said look, that’s because we could tell them hey, give $10 bucks and you’re really giving 60, 70, 80 dollars. It empowered folks to give collectively. I didn’t really think about our $10,000 dollar listeners, because I know that we have listeners who are general counsel for major corporations, they’re earning six figure salaries. Partners at big law firms, and I dunno, maybe even earning seven figures. We’ve got some wealthy listeners.
Andrew: I greatly appreciate it-
Thomas: Let me tell you about this new business idea I have everybody!
Thomas: No, later. Later.
Andrew: So I appreciate it, but I didn’t ask. I saw the $10,000 and I thought “okay.” I’m glad that people are giving commensurate to what they have.
Thomas: I mean, that’s incredible, by the way.
Thomas: I get what you’re getting at, but that’s also amazing and thank you so very kindly.
Andrew: But then I learned, and I wanna call her out by name. I cleaned, out I asked Teresa to clean out our inventory of OA swag so Stephanie Fawaz, you’ve got a box of goodies coming to you. Stephanie gave $10,000 dollars, and she’s not–
Andrew: -a partner at a big law firm or general counsel to a major corporation. She cleaned out her savings account.
Thomas: Oh my god!
Andrew: Took a look at where she was, made it through the pandemic okay, and asked what’s the most I could give that’s gonna hurt but you know, it’s not gonna take food off my table and off my family’s table? I was so… I’m still so blown away that people dug deeper and sacrificed more than I thought possible. Look, we shouldn’t have to do that in a democracy, in the same way we shouldn’t have to win the House by 4% to get a majority.
Thomas: Yeah, we’re doing whatever we can within the horrible rigged system we’re in.
Thomas: It feels good, especially because we won. Had we lost, I mean this would feel horrible, but especially because we won. This is part of why I’m so happy! We won and we made a difference. It sucks that we’re in that situation where we had to pour all this money into, you know, I wish we could get money out of elections, but we have to stop fighting the rules as we would want them to be, bringing knives to gunfights constantly, and do everything we can to win so we can make the rules better for everybody. It’s just where we are, and we stepped up, and it is amazing that Stephanie gave $10,000 dollars, I had no idea!
Andrew: [Laughs] I didn’t either! I gave her a shoutout on Twitter and then I added the theme that I saw, and I’m not gonna – I really apologize, I have two dozen people that I’d love to name and hundreds more. Just have to know, I’m including you in this group but I through a shoutout to the single moms, I know a half dozen single moms working part time who gave what they could. Students, college students, law students, people who have negative income who gave what they could.
Then on that thread, listener named Rob wrote, and this was late Tuesday night, wrote back and said “yeah, I lost my job in March thanks to COVID. I’ve been unemployed since March and I threw you guys $50 bucks.” The second that I looked at that and I said “okay, that’s ridiculous,” one of our other listeners wrote back and said “hey, publish your VenMo and I’ll buy this month’s groceries for you.” A half dozen other listeners said yeah, put it up there and I’ll throw you some money. Rob emailed me and, for somebody who’s unemployed our listeners at midnight at Tuesday night sent Rob $890 bucks.
Andrew: You know, you talk about payin’ it forward, $890 bucks, that’s part of a rent payment, that’s a month of groceries plus pay your electrical bill. I’m getting little tears to my eyes right here. I love you guys. The fact that that happened spontaneously and we got together to do good for somebody who did good with no expectation of any return.
Andrew: I just, I love it, I love all of it. I needed to tell those stories.
Thomas: Absolutely. Oh, gosh! That is so cool, I love our listeners.
Thomas: This was amazing! [Sighs] I’m so happy. You know what? We’ve got two Mr. Fantastic’s. Mister’s Fantastic on the show today.
Andrew: The abbreviation Messrs.
Andrew: I love that 13th Century Saxony.
Thomas: That’s our law firm. Fantastic & Fantastic. That’s our new law firm.
Andrew: Oh! Perfect!
Andrew: Alright well-
Thomas: So great!
Andrew: Let me dry my eyes so I can read the T3BE question.
Thomas: Ah. [Laughs] You wanna drag me down! After [Laughs] Okay!
Thomas: This better be like a free question.
Thomas: Just like “spell law.” [Laughs]
[53:59.0] [Patron Shout Outs]
[56:21.2] [Segment Intro]
Thomas: Before we get to T3BE, I wanna say, we had a listener on Twitter that said they just cannot handle the sad song anymore for personal reasons, and you know what? I did not know that I would be playing that every week! [Laughs] I didn’t know I would be playing the T3BE sad music every single week.
Thomas: And now that it’s a fixture, a permanent fixture on the show, it’s now a new segment which is Thomas Got it Wrong, that’s our new segment, I’m gonna change up the song. So, one way or another, dear listener, I’m either gonna get it right or I’ll do a different sad song. I don’t wanna hear the same sad song that many times, I never dreamed that I would get every question wrong for the foreseeable future of the show, but that’s where we are because Andrew has porked the test.
Thomas: With that in mind-
Andrew: Yngwie Malmsteen solo whether you get it right or wrong.
Thomas: No, it’ll be a different sad song. I’m never gonna learn otherwise.
Andrew: Elton John’s “Sad Songs (Say So Much).”
Thomas: I don’t know what that is but maybe, okay. We’ll see.
Andrew: Okay. Thomas, an explosives manufacturer contracted with a fireworks company in a signed writing for the sale of 100 red, white, and blue-themed fireworks, 50 of them to be delivered on June 1 and the remaining 50 to be delivered on July 1.
Andrew: The agreement did not specify where the delivery would take place or when payment was due.
Andrew: On June 1, the explosives manufacturer delivered 49 fireworks and explained that one of the fireworks unexpectedly suffered water damage but that a replacement would be delivered within two days. Which of the following states the rights and duties of the fireworks company?
Andrew: That is, the purchaser. A) The fireworks company is entitled to accept any of the 49 fireworks, reject the rest, and cancel the contract for the remaining fireworks due on July 1.
Andrew: B) The fireworks company is entitled to accept any number of the 49 fireworks and reject the rest, but it may not cancel the contract as to the fireworks due on July 1; C) The fireworks company must accept the 49 fireworks, but it may cancel the rest of the contract for the remaining fireworks due on July 1; or D) The fireworks company must accept the 49 sets and is not entitled to cancel the rest of the contract.
Thomas: I mean-
Andrew: I think, dig deep, I think you can get this.
Thomas: Yeah, I know you think I can get every single one, because you have the answer key in your brain. Look-
Andrew: [Laughing] I also have the answer key on my computer.
Thomas: [Laughs] Maybe that’s why it seems so much easier to you! So, okay. First impressions, this seems reasonable. You know, one out of 50 slightly damaged and they say they’ll replace it within two days, that sounds completely reasonable to me, so that’s my first takeaway. It’s weird that the agreement doesn’t specify where delivery would take place or when payment was due. That’s a little weird, I don’t know how that factors in. It says when payment was due. I know that a contract needs to have payment involved, you can’t have a contract, because there’s gotta be consideration and whatever, I think. But that doesn’t seem – I wonder if that’s just a red herring, I don’t know, I’m not sure.
As a comparison, contract questions on the old test I aced, I’m pretty sure. I almost never got them wrong, but this new test, it’s so much harder. Each answer is plausible-ish. Okay, so A, look, I – let me narrow down the difference in the answers. So, A, any number of the 49 fireworks, that seems weird, reject the rest and cancel the contract for the remaining fireworks. That doesn’t seem right to me. I feel like this is reasonable, I’m eliminating A.
They basically go from, you know, the buyer can just say “eff off” because one was damaged, to you know, the buyer can’t really do anything because one was damaged. That’s the spectrum of answers here. B, the fireworks company is entitled to accept any number of the 49 fireworks and reject the rest, but it may not cancel the contract as to the fireworks due on July 1. That’s a weird thing. Because you’re missing one and they say it’ll be replaced within two days, that just sounds reasonable. That sounds like close enough to fulfilling the contract, I could be wrong. You know, it might be a harder question if it was like oh, we’ll give you one on July 5th. Okay, obviously that’s useless to me.
Okay, C, the fireworks company must accept the 49 fireworks, but it may cancel the rest of the contract for the remaining fireworks due on July 1. Well, can you cancel a contract just anyway? [Laughs] I mean, I guess when it says “may cancel,” I guess not. I assume that means may cancel without any sort of like penalty or without having to, you know, if somebody backs out of the contract normally, I assume it doesn’t just mean that. Because of course, we’ve talked about, you can back out of contract you just usually are gonna owe whatever profit they might’ve made. I’m assuming it’s not meaning just the regular back out of a contract like that.
D, the fireworks company must accept the 49 sets and is not entitled to cancel the rest of the contract. I’m honestly leaning toward D. This is how this question has gone every time, how this test has gone every time. I think it’s D, D is the straightforward answer, but there’ll be some BS rule that means like oh, when one – it’s the fireworks rule! It was a split 5-4 Supreme Court decision just only involving fireworks and specifically water damage that meant [Laughs] You know, it’ll be something like that. I’m doing that final check, where there’s any reason.
The agreement – the weird fact, the agreement did not specify where the delivery would take place. I don’t know, does that mean anything? Or when payment was due. I don’t know that that would do anything. It does specify a date, by the letter of the law they’ve messed up on one firework for June 1st. I suppose the challenge of the question is does that negate or allow them to back out of the contract because there’s one… and maybe it does. Maybe that’ll mean it’s a C answer, like the company must accept 49 but may cancel the rest of the contract? But I don’t know why that would impact. This just doesn’t seem material to me, this doesn’t seem like a material breach of the contract, it really doesn’t.
What’ll end up happening is yes, it’ll be C because you slightly didn’t do something and blah blah blah, I don’t care. It doesn’t seem like a material breach of the contract, seems totally reasonable to me, I’m going with D. Screw it.
Andrew: If you wanna play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE. Include the hashtag #porkthestreak! Include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright Andrew, that’s our show! [Sighs] What a great show!
Andrew: What a show!
Thomas: Not even some fascist pond scum could bring us down.
Andrew: Not even the bar exam could bring you down!
Thomas: Yeah, which I definitely got wrong, I don’t care.
Andrew: I really, really hope you’ve porked the streak on that. If ever there was a week for you to pork the streak-
Andrew: -it’s this one!
Thomas: I agree with that every week. [Laughs]
Thomas: Thanks for listening everybody! Seriously, we made a difference! We might’ve been the difference, you listeners!
Andrew: It’s true!
Thomas: I’m so happy, and Warnock and Ossoff is so young, he’s in there, new blood in the Senate. Ah, it’s great!
Andrew: And they beat – look, I have – I know this is the trailing outro.
Thomas: They beat the worst cartoon villains from Scooby Doo ever!
Andrew: I remember, I still tell the story, it was 1985, I was eleven years old when Jesse Helms won reelection by, he had an African American challenger-
Thomas: Oh yeah, you’ve told this story, yeah.
Andrew: The ad that he ran in South Carolina – in North Carolina for the Senate was you know, the evil narrator with white hands holding a rejection letter.
Andrew: I’m not kidding the voiceover was “you were qualified for that job but they gave it to a minority because of affirmative action” and then crumbling up the letter, “vote for we’re not even pretending he’s not a goddamn racist Jesse Helms.” This is the good version, mirror universe opposite of that. They digitally darkened Raphael Warnock’s skin; digitally lengthened John Ossoff’s nose to turn him into a, like 1930s German propaganda – It just, I love that they went as low as they could possibly go and finally the Hillary Clinton, when they go low, we go high didn’t mean yeah but we lose.
Thomas: It’s so good we could go on forever with the good news, but we have to-
Andrew: We have to stop, I’m sorry.
Thomas: We have to stop, I know!
Andrew: Love you guys!
Thomas: But we love you, that’s great news. Thank you donors, and patrons, and listeners, and everybody, and we’ll see ya next time!