Topics of Discussion:
- Breakin’ Down the Law: Consequences of Impeachment
- Case Closed: Insurrections Have Consequences
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 456. Oh, 4-5-6! Cool. I’m Thomas, that’s Andrew, how’re you doing, Andrew?
Andrew: I am fantastic on a level that has not been seen since we did episode 1-2-3!
Andrew: There you go.
Thomas: Yeah, we’re gonna complete the set. This is the middle. Normally I name the shows, but I have to give you full credit for this episode, “Insurrections Have Consequences.”
Thomas: Fantastic show name, amazing content. I’m seeing a lot of bullet points, but they’re so good that I’m like, we’ll see! Maybe we go long, I don’t care. This show’s gonna be amazing. Consequences, everybody! Can we have some of them? [Laughs]
Andrew: It would be nice, don’t you think?
Thomas: We already have some, in that the President was impeached. I don’t know if you’ve heard all this. [Laughs] This just in!
Thomas: First President to ever be impeached twice. Pretty cool.
Andrew: I maybe came across that while, you know-
Andrew: Prepping the stories for this show.
Thomas: It’s an obscure bit of trivia that you won’t have heard about except for on this show. [Laughs] The only other President to be impeached twice was nobody, is the thing.
Andrew: Right! [Laughs]
Thomas: Alright, well, apparently, I see in the announcements section here, Lin Wood next week. Did we book Lin Wood?
Thomas: Yes! Awesome!
Andrew: We are not having that asshole on the show. I guess you can clownhorn that out.
Andrew: No, to go along with “Insurrections Have Consequences,” they have already had consequences for the person who is really trying to, you know, dominate the top of the charts of America’s worst lawyer, L. Lin Wood, and I have a fantastic story involving how a judge in State court in Delaware really brought the hammer down on Mr. Wood. It’s a fantastic story, we don’t have time for it this week-
Andrew: So, tune in next week.
Thomas: Okay, I’m glad we’re not having Lin Wood on because we might lose our entire website and [Laughs]
Thomas: Twitters, Facebooks, the whole internet collapse underneath us. We’re not having Lin Wood on.
Andrew: Yeah, Opening Arguments live from Parler.
Thomas: [Laughs] Good luck with that!
Thomas: Also doesn’t exist. Alright, well, let’s get to our consequences show, overdue!
Breakin’ Down the Law: Consequences of Impeachment
[3:41.6] [Segment Intro]
Thomas: This just in, the President was impeached. Andrew, I’m told he’s the only President to be impeached twice! Can you believe it?
Thomas: Tell us about the impeachment the second time. Impeachment 2, Electric- [Laughs]
Andrew: I liked – I think Noah had the best which was “if we’re doing sequels than Impeachment 2 Secret of the Ooze is clearly the best.”
Thomas: [Laughs] Yeah!
Andrew: Electric Boogaloo is a close second. Yeah, so I’ve got, and I will include in the show notes the full text of the sole article, which is for incitement of insurrection. A ton of news outlets are reporting that, unlike last time, this has Republican votes.
Andrew: In that ten Republican members of Congress voted for the article of impeachment. That’s not true! Remember, last time Justin Amash, Republican from Michigan-
Andrew: Voted for the article of impeachment, and then they kicked him out of the party.
Andrew: I think it’s worth preserving that from a historical context. The fact that they were able to impose – Republicans were able to impose a loyalty oath two years ago that they don’t now.
Thomas: Yeah, I joked in our live show that the one Republican who stood up to Trump in the House there had to be sent out in that glass window thing like in Superman 2, Amash he just [Rocket Noise] out of the Republican universe, out of the planet. Gone.
Andrew: Yup. That condition has changed on the grounds. In addition to transmitting the article, which, again is for incitement of insurrection, not a federal crime, so we’re gonna talk about – and the President’s defenders are going to trot out the same bad nonsense arguments they trotted out last time. Expect to see Alan Dershowitz, expect to see Jonathan Turley, claiming that insurrection – inciting an insurrection – is not a severe enough crime to count as a “high crime or misdemeanor.”
Thomas: [Laughs] Yeah.
Andrew: Because, you know, it’s not in the U.S. Code. We are aided this time around by the fact that while our founding fathers probably did not anticipate a corrupt petty criminal moron being President, and that’s abundantly clear from reading The Federalist Papers, they did expect a populist demagogue who could whip up crowds to try and stay in office.
Andrew: By the exact same kind of historical, originalist criteria, it’s gonna be really interesting to watch Republicans – again, not Turley, not Dershowitz, but other mainstream Republicans kind of back away from the arguments that they made 180 degrees to the contrary with respect to Ukraine. That is, you must have an actual crime in order to remove the President. I kinda want to congratulate the Democrats on a job well done here of sort of doubling down and saying “no, we’re not gonna play that game.”
We’re not gonna try and pitch this as he violated 18 U.S.C. 1001 or something like that. We’re gonna say the President whipped up – spent weeks claiming that the election wis illegitimate, and then whipped up a rally, stood back, pointed it at Congress and said “whee!” and let it go.
Andrew: That kind of a person shouldn’t be the President.
Thomas: So, wait, are you saying that’s not illegal? Or are you saying the Democrats just didn’t care to frame it in that way, they didn’t take the bait from last time, I guess, and try to frame it.
Andrew: I’m saying both.
Andrew: Let me parse that very carefully. I think you could potentially shoehorn some of Trump’s comments into something that might look like a violation of federal law. I’m not trying to say that there isn’t any case to be made, but I will say it this way: Donald Trump has spent his entire adult life acting in that mob boss kind of mentality of just walking up to the edge and then walking back. For example, his speech and rally before the insurrection, I think, is very clearly protected First Amendment speech.
Andrew: Because there is such – and I think Trump knows this, because under the Brandenburg v. Ohio standard, to incite-
Thomas: No, I already don’t think he knows that. [Laughs]
Thomas: I think what he knows is he’s done this before and never pays the consequences.
Andrew: Yes, yes, well that’s right.
Thomas: So, probably fine.
Andrew: Yeah, he certainly wouldn’t be able to cite a case.
Andrew: But I think he knows the difference between when you are – I’ll say it this way. It was no coincidence that the mob began at the ellipse out back of the White House, which is where Trump whipped them into a frenzy, and then said “now why don’t you go on down to the Capitol?” which is a mile and a half march. “I’ll be right behind you (no I won’t).” That was, in my mind, very clearly deliberate to distance himself in time and space from the violence that he knew – he had to know – was about to erupt. That is because the Brandenburg decision says we protect hateful speech. We’ve talked about this case, that was the Ku Klux Klan guy who said “I want revengeance upon those who would strip the white race of their-
Thomas: Wait, was that the Trump one or the – sorry.
Andrew: [Laughs] Yeah, right.
Thomas: I’m having a hard time.
Andrew: It’s tough to tell.
Andrew: That was Brandenburg, was the KKK guy.
Andrew: But the Supreme Court said that something becomes hate speech, something becomes beyond the protections of the First Amendment, when it leads to imminent lawless action. If I were defending Donald Trump, which I wouldn’t, I don’t have to, and as we learned this week from Rudy Giuliani how dumb-
Andrew: I realize this as a side bar, how dumb do you have to be in 2020 to do work for Donald Trump and not get paid up front.
Thomas: [Laughing] How many Lucy football things can Trump get away with on that?
Thomas: He has the football, it’s like the retainer or something. “Oh yeah, I’ll definitely get that drawn up, get that wired over to you!” [Laughs]
Andrew: If you don’t – and again, I would never do work for Donald Trump, but in that random hypothetical of, you know, let’s suppose it’s for a good Democratic cause, but the person who is underlying it is a criminal scumbag with the history of Donald Trump. If you don’t get everything to which you might ever bill as a retainer up front and, you know, converted to specie, converted to gold and put in the Scrooge McDuck-style vault so you can swim through and make sure it’s still there, then, you know, you deserve what’s coming to you. But anyway-
Thomas: Are you telling me that Rudy might not be the best attorney? [Laughs]
Andrew: I maybe am telling you that. Yeah. I think Donald Trump knew how to keep his hands off, his fingerprints off, and to say just enough to give himself plausible deniability and to make it a bad fit for any individual federal crime. The one that is referenced in the supporting materials that I want everybody to be on the lookout for is what we broke down on the last episode of Opening Arguments.
Donald Trump very clearly committed election fraud, attempted election fraud, in Georgia, and the materials – even the text of the impeachment resolution itself – mention the Secretary of State of Georgia, Brad Raffensperger, by name. In terms of thinking about witnesses I think we’re gonna see the House managers attempt to call Brad Raffensperger to testify in Trump’s impeachment. As I look at the supporting materials, and you think about the presentations that were made during the first impeachment trial with respect to Ukraine, I’m very happy [Laughs] that there was some internal debate, and obviously the pro-impeachment side won out – but there was some internal debate of “well, do you really want the first couple of days of the Biden administration to be taken up by re-litigating the guy that just lost?”
When you look at the clear evidence of Donald Trump’s, not just efforts that are misguided, or that are completely at odds with reality, but to – the things that he’s been saying for the past two months are unconscionable and I think a lot of Democrats, a lot of moderates, a lot of independents, have just sort of tuned him out. They don’t know, until the Raffensperger call I knew Trump was saying stupid things, I didn’t realize he was saying things like “well, if you exclude all the illegal votes it’s obvious, we won all 50 States.”
Andrew: Right? I think documenting that for the historical record, that we had a President who sat by and said “obviously I won all of the States,” and we had a Republican party who, for six weeks, cheered him on and it was only at the time that that amounted to an armed insurrection in the Capitol that finally a handful said “alright, maybe you’ve gone too far.” I want to preserve that for the historical record.
Thomas: Yeah, for the communists who teach public schools. Sorry, that’ll be just – never mind. That’s a more meta commentary on what conservatives will say about the history that we teach. Anyway.
Andrew: There are a couple other silly arguments that I do want to touch on. You have probably seen that meme that’s going around that says “for those of you wondering if it’s worth impeaching Trump this time-
Thomas: Yeah, yeah.
Andrew: Then it lists all the things that impeachment supposedly does, of which-
Thomas: Right, the salary, the travel allowance, the secret service.
Thomas: Some amount of that is true, right? I mean, well the fact that he can’t run again is possible if they convict him, right?
Andrew: Here’s the thing. Obviously, Trump has already been impeached once, so the sentence is false, because everything that is listed as a potential consequence is a consequence of conviction, not a consequence of just-
Thomas: Well, does it say that it’s – Okay, I took – maybe this is my fault but when I read that I took it to mean assuming he actually got convicted this time.
Andrew: Yeah. Let’s assume that, but it doesn’t say that. It says “for those wondering if it’s worth impeaching him this time, it means he…” and then here are the four things it says, “1) Loses his $200,000+ pension for the rest of his life.” That’s potentially true, I’m gonna talk about that. “2) Loses his $1 million dollar a year travel allowance;” that is almost entirely false. “Third, loses his full time full secret service detail;” that is entirely false; and “Four, loses his ability to run in 2024;” and that is-
Andrew: Potentially true.
Andrew: It must be – the Article of Impeachment, at the end, the trailing sentence says “Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” But the Senate can vote on that separately.
Andrew: And has, in impeachments throughout its history-
Thomas: Well, look, I gave the meme a slight bit of charity in that if Republicans are gonna vote to convict they will do it because of that last bit. Honestly, that’s the only way. There is no chance they are going to vote to convict but then be like “well, but let’s have him run again in 2024.”
Thomas: I think the only reason they might convict him, maybe, I think there’s actually – I’ll get your thoughts on this, but I think there’s a decent chance Republicans actually might convict in the Senate. I think the only reason they would do that is to make sure he can’t run for President in 2024.
Andrew: I think that’s right, and I would add my estimate of the odds of conviction in the Senate go up every day.
Thomas: Yeah. Well, Mitch McConnell said!
Andrew: There you go.
Thomas: That he would support it, yeah.
Andrew: Well, Mitch McConnell said he was “open.” [Laughs]
Thomas: Right, I think he said, what, “I’m glad that Democrats are doing it in the House” sorta? Wasn’t it to that effect?
Andrew: It was something like that. It was McConnell-esque in how much it straddled the line.
Thomas: Well, yeah, but think about what that means. That’s the difference between – normal McConnell would have been [Impersonation] “These obstructionist Democrats can’t get [unintelligible]” For him to say anything other than, like, sheer condemnation that he normally would do over Democrat’s efforts to hold Trump accountable for something, that means something. That means something’s going on.
Andrew: I agree with that 100% and I will go so far as to say if McConnell votes to convict, I think we’ll get the 67 votes. I do not see McConnell taking that stance unless he knows he’s got 16 Republicans that he’s gonna bring with him. That’s the, you know, canary in the coal mine if you’re looking for an analogy.
Let’s go back to, so okay, assume that conviction is possible. Let’s work through this backwards. I think I agree with you that Republicans would only vote to convict to prevent Trump from running in 2024. That’s number four, that would then become valid. Number 3, the Secret Service Act mentions nothing about impeached or convicted Presidents, so that’s not true.
Thomas: Can we amend that? [Laughs]
Andrew: [Laughs] I would like to do that. I think we would have to amend that prior –
Andrew: It would be ex post facto if-
Andrew: If we amend it, you know, after Trump is convicted. It would sort of look petty. Probably we could undertake some regulation. I think you could safely promulgate regulations from the Department of Treasury that says you know what? We’re gonna allocate zero dollars per year for the Secret Service budget.
Andrew: Let’s talk about that one and two. Those come from a reading/misreading of the Former Presidents Act, which is contained in the “notes” section of 3 U.S.C. § 102. If that rings a tiny little bell, you might recall that the last time in November when we discussed the Presidential Transition Act, I said yeah, this is not actually codified in the U.S. Code, it’s codified in the notes section to 3 U.S.C. § 102, and it is. There are a bunch of these laws. 3 U.S.C. § 102 is just the presidential salary. Then there are a bunch of these laws that are basically built in as commentary to the law. They are duly passed laws, but they’re stored and presented in an incredibly strange way.
It is clear, section (f)(1) says, and the Former Presidents Act are the benefits that former Presidents will receive. It says “a former President means a person, (1)” (this is subsection (f)(1)) “who shall have held the office of President of the United States of America; (2) whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution;” (meaning by impeachment) “and (3) who does not then currently hold such office.” I will add, if Trump’s term expires-
Andrew: He might be able to make an argument under this section that his service in office terminated other than by removal due to impeachment.
Thomas: That’s a good point.
Andrew: Yeah, it’s not entirely clear to me. The intent of the law is super duper clear. A former President shouldn’t mean impeached President. That’s clearly what they meant, but you know, if you follow the plain language there’s nothing in there that says a dog can’t play basketball.
Andrew: Assume that he loses on that as well, assume that a court says okay, but your service in your continuing service was terminated because you were impeached, and the whole point of this is to apply to an impeached President. What would you lose? You would lose subsection (a), which says “Each former President shall be entitled for the remainder of his life to receive from the United States a monetary allowance at a rate per annum, payable monthly by the Secretary of the Treasury, which is equal to the annual rate of basic pay, as in effect from time to time, of the head of an executive department.” Okay, so he would lose the pension.
What about that million-dollar travel allowance? That’s not a thing.
Andrew: Instead, what we have is “The Administrator of General Services shall … provide for each former President an office staff.” Okay, that cannot exceed $96,000 per year and that staff can then serve the former President when he’s doing things. “Shall be responsible only to him for the performance of their duties.” You lose that staff if you are removed, if you do not qualify as a “Former President” under section (f)(1). That’s the closest I can find-
Andrew: To that travel thing.
Thomas: But I like the sound of saying “Trump, not even a former President.”
Thomas: Under section whatever.
Andrew: I do like that as well.
Andrew: The very last thing that I want to – I guess I wanna hit briefly, is the distinction between impeachment and the 25th Amendment. The House also passed a Resolution, 223 to 205, calling upon Mike Pence to engage the 25th Amendment and replace President Trump.
Thomas: That kinda means nothing, right?
Andrew: It’s absolutely, that is a statement resolution.
Andrew: It is meaningless. Only one Republican signed onto that one, that’s Adam Kinzinger from Illinois, who’s sort of been out in front as, you know, being the most vocal anti-Trump Republican in Congress right now. Far less support for that. We talked about on this show how practically speaking it’s not going to happen, but I want to emphasize it because I have gotten a lot of questions that are basically like “oh, well, does this stop the President from doing X before his term expires?” And the answer, no matter what “X” is, is no.
Andrew: He’s still the President – even though this is not a criminal proceeding, it’s a trial and the principal of innocent until proven guilty applies, so he is still the President. He can still pardon people. The pardons clause says “the President shall have power of pardons (comma), except in cases of impeachment.” That does not mean that when the President is impeached he can’t pardon people, it means that you can’t pardon the thing for which someone has been impeached.
Andrew: He can still pardon people willy-nilly; he will still do so. It’s going to be awful.
Thomas: Wait a minute-
Thomas: I’ve never thought about the other part of that. Does that mean – when it says you can’t pardon people for what they’ve been impeached for, does that mean you can’t undo an impeachment? Or is there any way to stretch that into, like, if we impeach Trump on something criminal, he can’t pardon himself for the underlying crime?
Andrew: Yeah, and there are cases directly on point, it is the former not the latter.
Thomas: Ah, dang!
Andrew: Sadly. Good thinking, but-
Thomas: I’m sure you would’ve already told us if it was the other way?
Andrew: Yup, yup. No, but it’s always good to ask and it’s good to go through. Yeah, he is going to remain the President throughout this process. If you want him to stop being the President you have to-
Thomas: I’m gonna vote for Biden!
Andrew: Yeah, well, that’s a good idea, too. That’s everything about the impeachment resolution and the consequences to be suffered by President Trump.
Thomas: Yeah, there’s not much text to it because it’s sorta – I like the idea that, you know, take it for granted that every single reasonable person is gonna see “um, started an insurrection” as like, yeah, no, that’s impeachable!
Thomas: No, don’t really need further explanation on the ins and outs of [Laughing] that one! Yup, no, started an insurrection, sounds impeachable. Got it!
Thomas: Pretty short, uh short, Articles of Impeachment, there.
Andrew: Again, just take a look for what will be blatant hypocrisy because this suffers from the same procedural alleged defects as the prior impeachment.
Thomas: [Laughs] Yeah.
Case Closed: Insurrections Have Consequences
[25:47.6] [Segment Intro]
Thomas: Okay, can’t wait to talk about this!
Thomas: Can anything happen for Josh Hawley and Ted Cruz and perhaps others, by the way? Those are kinda the headline insurrectionists. [Laughs] The ones that you may have seen out front, but there are lots of treasonous Republicans working behind the scenes that may not get enough credit! And we’ll make sure they get the credit that’s due to them.
Thomas: Anyway, there’s been talk of the 14th Amendment having something to say about these traitors. What does it say?
Andrew: Lots of great questions packed into that. The topline answer, and I know you’re not expecting me to say this; the topline answer is yes.
Andrew: There are potential consequences for Ted Cruz, Josh Hawley, and the sedition caucus. They do stem from the 14th Amendment, from section 3 of the 14th Amendment, which is – almost everybody knows and maybe can quote off the top of their heads if you’re me, section 1 of the 14th Amendment.
Thomas: Thou shalt not commit … adultery or something, right?
Andrew: [Laughs] “All persons born or naturalized in the United States and subject to the jurisdiction thereof-
Thomas: Oh, right.
Andrew: -are citizens. No State shall make or enforce any law which shall abridge their privileges or immunities-
Andrew: -nor deprive any person of life, liberty, or property without due process of law; nor deny to any person within their jurisdiction the equal protection of the laws.” That’s the backbone of modern equal protection and due process jurisprudence. It incorporated most of the Bill of Rights to the States. It’s, you know, the most important thing in the Constitution if you’re a lawyer.
Thomas: Yeah, I wouldn’t have thought that that one also goes on to say “oh, apropos of nothing, also don’t do a treason.”
Andrew: It has!
Andrew: So there are four extra sections.
Thomas: [Laughs] I can’t believe we forgot to write this in the original thing!
Andrew: [Laughs] You know, we shouldn’t have to say this but-
Thomas: Yeah. [Laughs] Just in case.
Andrew: So section 2 was about how Congressional districts would be awarded post the Civil War. Not particularly effective these days anymore. Section 4 was about honoring contracts, so because the Constitution says that the federal government would honor contracts by and between the States, they had to add a section that was like “this does not mean we’re buying back your slaves or compensating you for the fact that we freed them. Slavery is wrong, people aren’t property, go to hell you racist nitwits.” Then the last provision just says Congress can enforce the provisions by appropriate legislation.
Stuck in the middle there is Section 3. This part I had to look up, because I didn’t know until researching for this segment, there’s actually a fairly robust amount of law and history, but it’s all confined to the 19th Century, or early 20th. So, Section 3 of the 14th Amendment says “No Person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Well, that seems pretty straightforward.
Andrew: This provision was passed and was used to prevent – largely because, remember back then, Senators were appointed by State legislatures.
Thomas: Right, yeah yeah.
Andrew: But it was to prevent States from coming back into the Union after losing the Civil War and then the whites in those States, particularly, using legal procedures to try and prevent African Americans from voting, which, you know, the more things change the more they stay the same; from electing the worst of the monsters who had been in the Confederacy and sending them to Congress and being like-
Andrew: Oh yeah, you let us back in, here you go, have a whole bunch of Confederate officers. Congress was like, yeah, no, no, we’re not gonna let you do that and sabotage reconstruction by sending in these horrible people. You’re gonna have to send in a different set of horrible people.
Thomas: [Laughs] Yeah. And they did.
Andrew: [Laughs] But no, this provision was invoked more than 30 times in the 1860s, 70s, 80s, 90s, up to 1900, in which the House of Representatives collectively would refuse to seat Southern Democrats who’d been declared the winner in their State’s elections, because of various issues. Principally the determination was made that fraud, violence, or intimidation had been used against Black voters in those States. The House dealt with it in a variety of ways. Sometimes they just refused to seat the person and said “hold a new election.” Sometimes they sat the defeated opposition candidate.
I’m gonna suggest, because there’s no publicly available version, if there was, I would have linked it on the show notes, but the seminal law review article on this is by Morton Stavis, and it is called “A Century of Struggle for Black Enfranchisement in Mississippi from the Civil War to the Congressional Challenge of 1965 and Beyond.” It was written in 1987, I’m gonna give you the HeinOnline citation, so if you are a student or have access to that you can read old journals. Give the article a read, it’s really, really, really, really good.
The question is, given that this has been used this way, could it be used against Ted Cruz? And the answer is yes. It doesn’t have to be the Civil War. We know that it doesn’t have to be the Civil War because of the last time that the 14th Amendment, Section 3, was used.
Thomas: Ooh. Not during the Civil War, I guess? [Laughs]
Andrew: No! It was used in 1919. Here, we have to look at somebody who, when I was doing the research, has become a new personal hero of mine.
Andrew: A guy named Victor Berger, Victor L. Berger. He was a socialist in Wisconsin; he was an editor and journalist of the socialist newspaper, that’s kind of what it meant to be a socialist back then. You disseminated newspapers, and he was probably the second most prominent socialist in U.S. history. Everybody can name Eugene V. Debs; nobody can name anybody else. You ought to name Victor Berger. He was elected to Congress in 1910, he was then defeated in 1912, and then you might recall in the early 1910s there was that World War I thing going on.
Andrew: Like many socialists, Victor Berger was opposed to the U.S. getting involved in World War I.
Thomas: This is so weird, there’s a Victor Berger who’s like a Twitter, YouTube personality and his name is Victor Berger the 4th. We’ve gotta find out-
Andrew: If that’s a relation I wanna get this guy on, because-
Andrew: Victor Berger’s super fascinating.
Thomas: Wow, okay. Side note-
Andrew: Yeah. No, no, no, yeah!
Thomas: Vic, if you’re listening-
Andrew: Yeah. Hit us up.
Andrew: Okay, so, like most of the anti-war socialists at the time – prominent ones – Victor Berger was tried and convicted for sedition under the Sedition Act of 1918. Put a pin in that, the Sedition Act of 1918, we’ve talked about that before. In the case of Schenck v. United States. That was, upheld the Constitutionality of the Sedition Act, which prohibited (quote) “Any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the flag of the United States, or the uniform of the army or navy.” The reason we’ve talked about that is Schenck v. U.S. is the case that had Oliver Wendell Holmes employing the clear and present danger test and talking about shouting “fire” in a crowded theater. It’s why, as good Opening Arguments listeners, you never ever use that analogy of “well, the First Amendment stops when we shout ‘fire’ in a crowded theater.”
Andrew: There was never a crowded theater, the crowded theater was the United States, and shouting “fire” was distributing a newspaper that says “maybe we shouldn’t get involved in the Great War.”
Andrew: Berger, convicted, sentenced to 20 years in prison under the Sedition Act of 1918. Think about that, for the crime of writing a news article that says “we ought to have socialism in this country and we shouldn’t be involved in this European war.” As a result, and here I can use that phrase, Victor Berger was elected to Congress in 1918 from Wisconsin.
Andrew: Remember, he was first elected in 1910, lost, became a prominent anti-war spokesperson and then was elected in 1918. Then Congress, on January 3rd, 1919, went to seat its members-
Andrew: -and they conferred and they said “well, wait a minute, this guy has been convicted of sedition against the United States.” We’re gonna empanel a committee and figure out if we should seat this guy or not, because it kinda seems like that would meet the criteria of the 14th Amendment, Section 3. He’s engaged in insurrection or rebellion against the United States, or given aide or comfort to the enemies of the United States.
Thomas: Wait, and it was just for a newspaper?
Andrew: Yeah, just for sedition, for writing in a newspaper “we should not get involved in World War I.”
Thomas: Oh my gosh.
Andrew: That commission took most of 1919 to reach it’s results, but then ultimately decided, (quote) “that Victor L. Berger, because of his disloyalty, is not entitled to the seat to which he was elected and that in accordance with the unbroken precedence of the House he should be excluded from membership and that further, having previously taken an oath as a member of Congress to support the Constitution of the United States, and having subsequently given aide and comfort to the enemies of the United States during the World War, he is absolutely ineligible for membership in the House of Representatives under Section 3 of the 14th Amendment to the Constitution of the United States.”
The seat was declared vacant on November 10th, 1919, and Wisconsin held a special election to fill it. That special election took place December 19th, 1919. Guess who won the special election?
Thomas: Victor Berger!
Andrew: Victor Berger, that’s right! They were like oh, yeah, that’s not gonna – so he went back and Congress refused to seat him again. They declared the seat vacant, and this time it stayed vacant until the end of the 1920 general election. It stayed vacant for two more years. In 1920, Victor Berger lost the general election to Republican William H. Stafford. By the way, narrowly, I should add.
Andrew: [Laughs] And in a way I kinda feel bad for Stafford here, who was like “well, if you vote for me I can.”
Thomas: I actually get to go! [Laughs]
Andrew: They’ll let me in the building!
Andrew: And if you vote for Berger, they won’t.
Thomas: And still barely won! [Laughs]
Andrew: [Laughs] Right, barely won. He was seated in 1921. Now, put a pin in that and let’s take back out that pin I told you earlier about Berger’s conviction under the Sedition Act of 1918. See, as it turns out, the judge in Berger’s case was a judge named Kenesaw Mountain Landis.
Andrew: If you are a baseball fan, you will recognize that name as the racist first commissioner of Major League Baseball.
Andrew: Generally thought of as the guy who was responsible for delaying integration of African Americans into Major League Baseball. But he was a judge, and he was considered, he was kinda the, like, Judge Judy of [Laughing] 1905? He was, you know, a no nonsense kinda hang ‘em judge, and that’s why he was brought in – I said 1905 but he was brought into Major League Baseball as their first commissioner after the Black Sox scandal came to light.
Andrew: You know, to kind of root out corruption and, you know, be a no nonsense-
Thomas: Convict people of sedition for no reason.
Andrew: Right! Prior to being named commissioner of Major League Baseball, he was the judge who had tried and convicted Victor Berger. And Victor Berger collaterally attacked that decision, that conviction, on the grounds that Kenesaw Mountain Landis was racist, was biased against Americans of German descent.
Andrew: Berger was of German descent, so he thought yeah – again, you have to remember, post World War I, this was oh, yeah, Berger, you just wanted the United States to roll over-
Andrew: -because you’re a pro-German stooge. I don’t even know what the anti-German slur would’ve been in 1918, or whatever, but Berger said “look, my conviction for sedition had nothing to do with actually meeting the criteria, it had to do with the fact that this guy hates Germans and I’m German.” That went all the way to the Supreme Court-
Andrew: -in a case called Berger v. U.S. in 1921. The Supreme Court said yeah, you’re right! This guy is definitely biased against Germans, you’re a German, we’re vacating your conviction. That 20 years that Berger had to serve for sedition? Gone! What do you think Victor Berger did the minute the Supreme Court vacated-
Thomas: Ran back for his seat again!
Andrew: Of course he did! He ran for Congress again! Against William H. Stafford, and won in 1922. Was then instantly seated by the House and served three terms in Congress.
Thomas: What an uphill battle! That’s a heck of a representative.
Andrew: Here’s how I put all of that together. Article 1 of the Constitution establishes the Congress, and Section 5 has two clauses that talk about some of the powers that Congress has. Clause 1 says each House shall be the judge of the elections, returns, and qualifications of its own members. That’s by majority vote. Then Clause 2 says each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.
The House gets to judge, are you qualified to be a part of it? That judgment is just straight up majority vote, or they can kick you out. You can have been in and then they’ll say, oh, well now we want to expel you for disorderly behavior. Again, not high crimes and misdemeanors, no question here that it’s just “yeah, we don’t like you, we don’t want you in this House, so we’re gonna kick you out,” but that requires two-thirds. By the way, only of – since this is an internal rule – this doesn’t have to be a law. The Senate doesn’t get a say over the House, the House doesn’t get a say over the Senate. So, you know, the fact that Senate Republicans are far more likely to be pro-Trump.
Andrew: Excuse me, the fact that House Republicans are far more likely to be pro-Trump than Senate Republicans can’t save Cruz and Hawley if we go through this process. But I think I know what you’re thinking, which is well hey, if the House could kick out Berger just by a majority vote, why would we ever go through the expel process? Let’s just reverse McConnell, every Republican.
Andrew: We’ve got a bare majority, vote them all “not qualified” and let’s be done with it!
Andrew: Believe me, if I thought this were possible I would 100% be behind it. When I say it’s time to play hardball, yeah, I want an up or down vote on, you know, should you keep somebody who voted with Donald Trump 90% of the time in the Senate. Let Kamala Harris break a lot of ties. But unfortunately, there’s a Supreme Court case that says we can’t do that.
Andrew: I looked it up. It’s a case called Powell v. McCormack, and it has to do with a Civil Rights leader, Adam Clayton Powell, who represented Harlem in Congress, he was the first African American elected to the House of Representatives from New York. He was incredibly influential, but then became increasingly the target of investigations of corruption and abuse of power for things like, you know, flying attractive young women on his Congressional staff with him to a retreat in Bimini in the Bahamas at government expense. I should add that Powell’s “defense” (quote, unquote) here was that white members of Congress did this stuff all the time.
Andrew: And, you know, he’s probably right?
Thomas: Probably right, yeah. [Laughs]
Andrew: But, you know, so he sort of felt like he was being unfairly called out by Congress for enjoying the perks of being a representative when, you know, lots of white people were doing the same thing. We’re a rule of law show, and I should point out that, um, when, ultimately when Powell was defeated in 1970 as these allegations came to light, he was replaced by Charlie Rangel, who went on to represent that district with distinction for 30 more years until Rangel was caught up in his own ethics situations. The seat is now occupied by Adriano Espaillat, you know, just an illustration that at least on the Democratic side of the aisle it’s – the view is not, you know, let’s paper over. I think it’s fair to say that Powell was a complex figure, that Rangel was a complex figure.
Powell at least, very clear to me, broke the law, committed numerous acts of financial misconduct, and so, as a result, 1969, the House voted not to seat him.
Andrew: There was a commission that a select House committee, House was majority Democratic at the time and the members of that committee were mostly Democrats, there were a couple of Republicans. They looked at two sets of issues.
Thomas: Well, also, keeping in mind 1969 Democrats would be a little bit, you know- that’s a different story.
Andrew: That’s true, but these were, you know, John Conyers was on that committee, for example. You know, not a committee of monsters, although Arch Moore was on it, he was a Republican from West Virginia who would later have his own scandals. [Laughs] So in a way, I guess Powell did have a point.
Thomas: How many scandal-free terms have there ever been? [Laughs] Anyway, no, topic for another show.
Andrew: Topic for another show.
Thomas: Four. The answer’s four. Ever.
Andrew: They looked at two separate sets of charges that said Powell is ineligible to be seated, number one because of his age, citizenship, and inhabitancy. The argument was he didn’t really live in the district from which he was elected, he was really living in The Bahamas. The second was (quote) “the status of legal proceedings to which Mr. Powell was a party in the State of New York and the commonwealth of Puerto Rico.” Then the third, I should add that was kind of folded into that was allegations of official misconduct for the past decade in office.
That select committee said yeah, look, he does spend a lot of time in The Bahamas, but he lives in New York, he lives in Harlem, his qualifications are fine. But we think he’s guilty of all this misconduct stuff so, in our judgment, we’re not going to seat him under Article 1, Section 5, Clause 1. He’s not qualified to serve in the House by virtue of his ten-year pattern of financial misconduct. The Supreme Court said you can’t do that.
Andrew: That’s the holding of Powell v. McCormack, it said look, if you refuse to seat him on the basis of his qualification, that is he’s under the age of 30, or I guess for the House of Representatives under the age of 25; if he is not a U.S. citizen; or if he doesn’t live in the district, then you can refuse to seat him for that. But you cannot refuse to seat him on the basis of he’s done stuff you don’t like. You can, however, expel him if he does stuff that you don’t like. The Supreme Court was very clear on that. They were like yeah, you don’t like this, don’t have this committee vote by majority vote, but get 2/3 of the vote of the entire Senate, you can kick this guy out.
Andrew: Then, as it turns out, he almost certainly would have been expelled. The vote of the House – I should be clear on this, I kind of alighted over this in the history. The House committee said he should be seated, but should be sanctioned. But then when it went to a full vote of the full House, they voted 307-116, which is well above 2/3.
Andrew: Not to seat him at all. That, I think, has a lot to do with what you had said previously. That has a lot to do with racism.
Andrew: Very clearly, you know, he had few allies outside of northeastern Democrats. No Republicans wanted to seat him and not a whole lot of southern Democrats wanted to seat him either. After the Supreme Court ruled in 1969 that you could expel him for misconduct or for (quote) “disorderly behavior,” essentially the House gets to judge, you know, what constitutes disorderly behavior. He then lost in that election.
Andrew: He lost in the primary to, like I said, Charlie Rangel.
Thomas: Let me make sure I have this all straight, though. Was the point of this that there’s a separate – there’s two separate things? Is refusing to seat someone different than expelling someone? Or what was the takeaway from-
Andrew: That’s exactly right.
Andrew: It is – between the two of them the power to unseat Ted Cruz and Josh Hawley lies. Could you argue that Section 3 of the 14th Amendment operates as a qualification and thus only requires a majority vote? I believe, on a careful reading of Powell v. McCormack, and a careful evaluation of the history, that you could. I think it’s absolutely clear to me that it says one of the criteria of being able to serve in either House of Congress is that you did not previously take an oath and then break that oath, then try and get seated again.
Andrew: If that’s the case, you only need a majority vote to kick out Ted Cruz or kick out Josh Hawley, and we have – we very likely have that, I think.
Andrew: At minimum, if that doesn’t work, then you can use the Disorderly Behavior Clause to kick somebody out of the Senate for any reason whatsoever, and I will point out that this was actively discussed back in the Alabama special elections-
Andrew: That if Roy Moore had won that election that the Republicans were going to either refuse to seat him or immediately expel him.
Thomas: No, they weren’t.
Andrew: [Laughs] It was talked about!
Thomas: I feel like it was talked about like maybe that’s what Republicans would do if they had any sort of soul.
Andrew: Well, look, you don’t have to have a soul, because the Republican Governor was Kay Ivey.
Andrew: A very hard right-wing Republican, so you would just be like alright, send us somebody who’s just as stupid as Roy Moore and just as far right-
Thomas: [Laughs] It’s like “can’t find him!” Yeah, no idea. Looked everywhere.
Andrew: -but not a pedophile, and in fact that’s what Alabama now has in Tommy Tuberville. Just as much of a troglodyte, just as much of a Trump supporting lunatic, just as ill qualified to actually serve to represent anyone in the United States in the United States Senate and … there. Nobody’s gonna kick Tuberville out, although they ought to. So, there you go. That is my understanding of the 14th Amendment, Section 3. It’s not self-executing, but based on the guideposts that we have I think we’ve got a real path to remove those who gave aide and comfort to the enemies of the United States. Part of the reason – I mean, I was just fascinated by the tale of Victor Berger-
Andrew: But everything that happened, remember his sedition conviction was for arguing that the United States should not get involved in World War I. If you get a pro-Cruz defender of “well, you know, it’s not like Cruz let them into the Capitol. It’s not like Cruz gave these guys, the guy with the zip ties, a tour and told ‘em this is where you hide out and here’s where you can kidnap Nancy Pelosi.” You don’t have to do that. That nexus of aiding an insurrection and giving aide and comfort to the enemies of the United States is – could be as thin a connection as was the case in Berger in 1919.
Thomas: That would be some rough precedent to cite though, wouldn’t it?
Andrew: [Laughs] It would be!
Thomas: But point is, this could happen. We could have consequences for this insurrection, so let’s do it!
Andrew: Yeah, let’s absolutely, do not cede the ground that, you know, because there is an impeachment of Donald Trump that that means his biggest aiders and abettors get off scot free.
Thomas: What would be the criteria you would use? I’m just asking in your opinion; would you use the vote against the Biden delegates or something that happened? Because I think there was like 6 Republican Senators, I wanna say, or would you use just statements about the insurrection? What are you using to say here are the Senators who should be expelled?
Andrew: Yeah, that’s absolutely right, and what I would say is, to me it is the totality of circumstances surrounding that. With Ted Cruz you have objected to the vote and then the insurrection took place, has said it was an automated fundraising email, but literally while insurrectionists were on the floor of the Capitol, sent around a fundraising email that said “we stand with everyone who is doing everything they can to try and prevent the Democrats from stealing this election.” That’s not – if that’s an automated fund- that was really bad timing on your part.
Then, as we pointed out on the show, that number dropped from 14 to 6 after the insurrection. It’s kind of like alright, you saw where your rhetoric got you and then are you gonna back down? Are you gonna say Kelly Loeffler, however incompetently, okay, well, I have been stoking and fanning the flames of “this election was rigged” but now that I’ve seen that someone died as a result of that, now maybe I back away from that a little bit. That’s the minimum bar. To say yeah, we want to go after the remaining 6 people, which by the way does include Tommy Tuberville, who doubled down, who saw all of that and said “oh yeah, no, I want more of that.” I think that’s not a terrible argument.
Thomas: Alright, well, let’s do some consequences, folks!
Thomas: Alright Andrew, because we’re just feeling so generous. More consequences! Couple more lightening round of consequences for the shaman guy?
Thomas: What else have we got going on here?
Andrew: Yeah, so we’ve now said, right, there are consequences for the lawyers, we’re gonna talk about that next week; for Trump, we talked about that; for his aiders and enablers in the House and Senate. What about the, you know, the foot soldiers? The Q shaman guy, the dude who stole the podium? Obviously for the ring leaders there are the consequences of you’re going to be indicted, arrested, and convicted of federal crimes. The DOJ put out an incredibly robust statement earlier this week, they’ve already handed down 70 indictments, and they expect to hand down hundreds, good for them.
But there is also, and I reached out to our friends, the National Security Counselors, that is @NatlSecCnslrs on Twitter, because I had someone draw my attention to SF 86. You might be saying, what the hell is that? That is the 136-page standard form, that’s what the “SF” stands for, questionnaire for any national security position. That’s how the government conducts its background checks before issuing any clearance level of any kind to any person to receive any information. To get secret, top secret, whatever, you have to satisfactorily fill out this SF 86. Question 29.4 says you must disclose if you have (quote) “ever been a member of an organization dedicated to the use of violence or force to overthrow the U.S. government and which engaged in activities to that end with an awareness of the organization’s dedication to that end, or to the specific intent to further such activities.”
Thomas: Cut to the guy in the full shaman outfit? “No, I haven’t.”
Thomas: Why do you ask?
Andrew: And that was – I posed that as a two-part question, because you are 100% correct that folks are going to answer “no” to that question who participated in this riot or supported groups in this insurrection that supported the insurrection. The National Security Counselor [Laughing] came back and said “oh, no.” 29.4, if you were related to this in any way whatsoever you are 100% required to disclose it, and if you fail to do so, if you lie and you hide it, then that’s an instant disqualification from ever holding a security clearance, ever being able to be hired for any government position that requires a background check.
Here’s what they said, (quote): “Lawyers can make all the weaselly arguments they want about the various different qualifications in that question, but if you check yes,” if you say “oh yeah, I was part of this group-
Thomas: This one time.
Andrew: -that did some light treason” that’s a death sentence for your clearance. That makes sense. “Checking no if you had anything to do with anybody involved would be an automatic denial under guideline E for lack of candor or attempting to mislead the investigator.” I’m not surprised to see that; I was aware of that as a standard and I’ve often talked about it analogously in the bar exam. Don’t make a justification in your head as to, like, technically why something might apply or might not. Answer the damn question.
If you don’t, if you’ve lied, if you’ve misled, if you’ve engaged in a lack of candor, they continue (quote) “they don’t care about weaselly legal arguments. If security adjudicators had their way, lawyers would never be allowed to have clearance [Laughs] and anyone who sounded like a lawyer would automatically be bounced for trying to mislead them.”
Here’s the takeaway from that. We’ve talked about a lot of ways, about holding people accountable. You have an Uncle Frank in your life, you can write a letter to the U.S. Office of Personnel Management; you can write a letter to their superior and you can say “hey, if this person is in the process of filling out this application and has left Section 29.4 blank, you should be aware of their connection to and involvement with the armed insurrection on the United States of America.” That’s out there, that’s a way for us to hold these folks accountable on a personal level.
Don’t take legal advice from a podcast, you know better than that, but yeah, that’s real. As far as I can tell, those who vet security clearances would take this very, very seriously.
Thomas: That was everything I hoped for and more, Andrew. Let’s hope these consequences actually happen. Tune in on Tuesday for even more consequences.
[1:03:32.5] [Patron Shout Outs]
[1:05:01.4] [Segment Intro]
Thomas: Now it’s time for T3BE, can I start a new streak to not pork? Here we go!
Andrew: A state law provides funding for public students using a complex formula.
Andrew: Oneof the major components of the formula takes into account property values surrounding the schools.
Andrew: This leads to a disparity in student funding as schools located in areas where property values are high have substantially more funding than schools located in areas where property values are not high. A group of students from a school located in an area with low property values challenges this law-
Andrew: – on the basis that it violates the Equal Protection Clause of the Fourteenth Amendment. Wow, how much more topical could you be?
Thomas: I thought, yeah, I thought this is just how it works. So…
Thomas: I’m very confused.
Andrew: Who will prevail? A) The state, because the state can show that the law is necessary to achieve a compelling government interest.
Thomas: Huh, okay.
Andrew: B) The state, because the students will not be able to show that the law is not rationally related to any legitimate government interest.
Andrew: C) The students, because the students will be able to show that the law is not substantially related to an important government interest. Or D) The students, because the state willnot be able to show that the law is rationally related to alegitimate government interest. So-
Andrew: Well, I won’t editorialize, you know-
Thomas: Yeah, this is tricky-
Andrew: You understand this.
Thomas: -because I thought this was just how school funding works, and I don’t remember this being like overturned in a 14th Amendment case. Uh… huh. That leads me toward the State winning. I think this has to do with what kind of basis, you know, we’re looking at? It seems to be different levels of testing the burden there. Does the State have to show a substantial thingy? Does it have to show any sort of rational thingy, you know? Those lawyer law talking words. So, gosh, I feel like this is just how … this works. I’m a little worried.
Hmm, equal protection. I think that part of it might be that the Equal Protection Clause of the 14th Amendment, I don’t know that it like protects people based on income? Is that a protected class? In my mind I’m already taken for a given, I thought this is how school funding currently works, so it tells me, you know, I feel like it’s gotta be the State will win this case, and if so, why? That already could be wrong, I dunno, it could just be incorrect on that, but I’m pretty sure. My thinking will be if the State can win on this case, or does, it would be because all it needs is some barely, you know, fogged mirror test of “well, the State can say this has to do with some sort of government interest.”
Let’s see, between A and B are the State answers. A, the state, because the state can show that the law is necessary to achieve a compelling government interest. See, I don’t think it has to meet that test. That actually sounds more strict than it would need to be because I don’t think that income is a protected class, you know? Low income, I think if this were, like, more tied to race or something, which, I mean, you could argue it ultimately is, but it doesn’t seem to be anywhere in the question that they argued that way, so I don’t know. If it was based on race or something that was protected, gender or something that’s protected I think you would need a higher standard, but gosh. I’m thinking that you don’t need that for this.
S, B, the state because the students will not be able to show that the law is not rationally related to any legitimate government interest. I was gonna go with B [Sighs] now I’m a little bit questioning it because it’s weird that it puts the burden on the students? I would’ve thought the answer would be B, the state because the state can show that it’s rationally related to a government interest rather than the students will not be able to show that the law is not rationally related to any government interest. Maybe that’s still the same thing, but it seems a little weird to put the burden on the students. Maybe that just means the state gets the benefit of the doubt unless the students can prove otherwise.
This is a weird one, because I feel like, you know, if I were just voting with my heart here, I feel like it would be, you know, C or something. The students would win because the students will be able to show that the law is not substantially related to an important government interest. Maybe there’s some case somewhere that I didn’t hear about [Laughs] where it was ruled this way.
I’m gonna vote with what I think is reality, and assume that I’m right about that, and I’m gonna go with B. I think that’s the level of burden the state would need to show in this case, we’ll see if I start a new streak or if I instantly pork my one question streak. [Laughs]
Thomas: B is my final answer, although if I had to vote with my heart, I would vote probably C or D.
Andrew: Alright, with that in mind, you know how to go ahead and enter this competition. Share out this episode on social media, include the hashtag #T3BE; include your answer, your reasons therefore. We will find a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: That’s our show. [Sighs] Three happy ones in a row, Andrew, and I didn’t even have to talk about the fact that my Sharks are playing again tonight, finally. Finally, the Sharks – longest I’ll ever have to go in my life, fingers crossed, without getting to see my San Jose Sharks. It was like a year, almost, because of this COVID stuff. Crazy. Should never have to happen again. Human rights were violated, okay? No one should have to be without their San Jose Sharks for this long.
Andrew: Sure? [Laughs]
Thomas: [Laughs] Alright, well, I’m sure you’re all enjoying hockey, right? Everybody’s just like me – no, they probably don’t even know that’s back on. We’ll see you on Tuesday for even more consequences!