Transcript of OA461: So Much Winning!

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 461.  I’m Thomas, that’s Andrew, how’re you doing, sir?

Andrew:         I’m fantastic, Thomas, how are you?

Thomas:         I am not tired of winning.

Andrew:         [Laughs] I thought we were gonna get so tired of winning.

Thomas:         Yeah, well no.  Not under Biden, never tired of it.

Andrew:         Wow!

Thomas:         I’m just tired in general, it’s a tiring time, but winning is not one of the things making me tired.  It’s the opposite, in fact.

Andrew:         Let the record reflect that Thomas is not tired of winning.

Thomas:         Not at all!  We’re gonna talk about some wins, I think, today.  Right?

Andrew:         We are.

Thomas:         Ah, love it!  I love it.  I love wins!  Also, before we get the show started, what is Latinos for Trump?

Andrew:         Oh my gosh.  Okay, so like a dozen of you have sent me this lawsuit.  Again, I’m grading on a curve here.  I have read a dozen Sidney Powell kraken lawsuits.

Thomas:         Yeah, how much can a line curve?  At this point you’re grading on a circle.

Andrew:         Yeah! [Laughs]  Words do not do justice of how insane this lawsuit is.  We are aware of it, it is definitely going to be either a fun Tuesday like, let’s break down when lawyers lose their minds!

Thomas:         [Laughs]  

Andrew:         [Laughs] And write stuff anyway!  Or we might do it for a Law’d Awful Movies, but in in any event, I promise you – I promise you, I promise you, listeners, we have seen this lawsuit and we have gloried in it.

Thomas:         [Laughs] Ah, can’t wait for that.  Other quick announcements, we have back to back Q&A’s coming at your real soon.

Andrew:         Q’s and A.

Thomas:         Q’s and A’s.  Uh, there are plenty of Q’s to A, don’t worry.

Andrew:         [Laughs]  

Thomas:         Plenty of Q’s and plenty of A’s.  We’ve got the one on Tuesday, that might be when you’re hearing this depending on your patron status, but we’ve got one on Tuesday, that’s the normal monthly Q&A, that’s Tuesday at 3 Pacific, 6 Eastern.  Make sure to hop onto the YouTube channel and join us for that.  There’s so much to talk about.  So much, in fact, that we’ve got another Q&A, which is what we said last time.

Andrew:         [Laughs]  

Thomas:         Last episode, our new weekly Q&A on the Stereo app, so if you want to check that out make sure you hop on that Stereo app, follow @torrez and @seriouspod and just – you’ll see the event that we have scheduled every Tuesday, hop on there, so much fun.  Don’t worry, we will not run out of questions.  In fact, I think in our normal monthly Q&A’s we get through like 20% of the questions, so…

Andrew:         Yeah, I was gonna say a third but I am Optimist Prime.

Thomas:         Yeah! [Laughs]  

Andrew:         [Laughs]  

Thomas:         So can’t wait, those are both gonna be so much fun and having said that I think we get to start the show now.  Announcement time over.

Andrew:         Let’s do it.

So Much Winning!

[4:07.8] [Segment Intro]

Thomas:         Ah!  Let’s talk about some wins, and more importantly, the only thing better than us winning, there’s one thing better than the good side winning and that is Mitch McConnell losing.

Andrew:         [Laughs]  

Thomas:         So, uh, tell us about that.

Andrew:         Yeah, I’ve got two stories here that I think are Mitch McConnell losing that I think those of us on the left have been so wary of Mitch McConnell, super evil genius, for the last, you know, six years.  That people – I get it – are looking at it and going “alright, what’s the triple Xanatos Gambit that he’s really playing here?  But here’s the thing, Mitch McConnell was super evil and able to play everything to his maximum advantage when he had a majority of the Senate.

Thomas:         Yeah.

Andrew:         And he doesn’t have that anymore! [Laughs]  

Thomas:         He does have fifty votes though, which is slightly more than a minority.  [Laughs]  Or whatever you want to call it.  It does seem like, to the layperson, it seems like things have gotten gummed up, you know?  It seems like it hasn’t gone as smoothly as maybe we would’ve thought it went.  It seems like, you know, we have the 50 votes plus the tiebreaker, bam, everything should be fine.  It feels like not that, so what’s going on there?

Andrew:         [Sighs] Okay.  Let’s start off by talking about the Senate Rules, then.  We alluded to this in last week’s show.  There was some hand wringing on the left of “why are the Democrats going to enter into a power sharing arrangement with the Republicans?” and the answer to that was math.  [Laughs]  Right? 

The reason is you only have 50 Democratic Senators to go around and so when you’re staffing committees, Standing Rule 25 of the Rules of the Senate basically says that you can only assign a Senator to three committees.  Rule 4(a)(1) says each Senator shall serve on two and no more than two of the really big and important committees that are in the Senate, and then each Senator may only serve on one of the additional committees – the Committee on Veterans Affairs – I don’t mean to suggest that these are less important, but these are less important committees.  They have less control over how legislation gets out. 

As you’re doing the math on that, every Senator gets assigned to three committees, you look at the 17 standing committees and it’s just not possible to pack a committee with Democrats and have them be the majority in all 17.

Thomas:         Yeah.

Andrew:         In fact, what you would have to do is give over lots of the super crucial committees to the Republicans or you can do what Chuck Schumer proposed to do, which was split all the committees 50/50.  But there’s a problem with splitting the committees 50/50, and that is Senate Rule 27, 7(a)(3). [Laughs]  

Thomas:         I knew it!  I knew that 7(a)(3) was gonna kind of factor … in.

Andrew:         [Laughs] 7(a)(3) says – and by the way, the standing Rules of the Senate can only be amended by a 2/3 vote. 

Thomas:         What?  Can’t we just … I don’t believe you.

Andrew:         [Laughs]  

Thomas:         Can’t we just do the nuclear option with anything?  Gas the parliamentarian.

Andrew:         You can do the nuclear option with anything, but we already have multiple Democrats-

Thomas:         Yeah.

Andrew:         Joe Manchin and Kyrsten Sinema who have said well, I don’t know that we’re gonna do the nuclear option to get rid of the filibuster, and I have to say if they’re anxious about the nuclear option to eliminate something that is clearly within the purview of interpreting the rules.

Thomas:         Mm-hmm.

Andrew:         What the nuclear option does is it says hey, this rule is ambiguous, so we want to interpret it in X way and we are appealing to the decision of the chair, that is whoever is presiding over the Senate, to say is this a valid interpretation?  Now, it is a plausibly valid interpretation of the existing Senate Rules to say that you can eliminate a cloture vote by a simple majority vote.  That would be- I mean, it would work.  The effect of taking a vote that requires 60 and making it require 51.  That’s at least a plausible, if a bit of a stretch, of an interpretation of the existing Rules. 

To take a rule that says, as 7(a)(3), 27, 7(a)(3) says, (quote) “The vote of any committee to report a matter or measure shall require the concurrence of a majority of the members of the committee who are present” and say, oh, well that really means that ties can go out.  That would require-

Thomas:         Yeah, so does Kamala not get to break internal committee ties?  Is that the problem?

Andrew:         Correct.  Because she’s not assigned to any of those committees.

Thomas:         Yeah.

Andrew:         Now it is – at the end of the day, I mean I just sort of poo-pooed it but this is the leverage that Chuck Schumer took to Mitch McConnell and said “if you don’t give us a power sharing arrangement then we will appeal to the decision of the chair, and I’m pretty sure that I have 50 votes that says we’re gonna interpret rule 7(a)(3) as including the power of the Vice President to break ties-

Thomas:         Hmm.

Andrew:         -on any committee.”  It would say, your codicil would basically say yeah, well the Vice President, as President of the Senate, is essentially assigned to all of the committees.

Thomas:         Yeah.

Andrew:         That would give her kind of a floating vote.

Thomas:         I mean or, alternatively, could you have done like a tie goes to the runner type thing?  Because I’m trying to imagine – I don’t know how every committee works, but the ones that I’m sure a lot of people have some experience, or have paid attention to, comes with Supreme Court nominees, for example, where it’s like you need to have that committee vote and then you give, what?  The yay or nay to put them forward?  What would happen?  Let’s say we get a Breyer replacement or something and under this scenario, if it’s 50/50 and we just tie, currently what would happen is just no vote in the wider Senate?  It just sits there forever?

Andrew:         Yeah, so what would happen is – and we saw this with Trump’s judicial nominees.  Remember, they go to the Senate Committee on the Judiciary first. 

Thomas:         Yup.

Andrew:         Then the question is do they get passed out of committee?  Are they a measure or matter that is – and the word for that is “reported.”  When you’re reported out of committee, you’re then put on the calendar, subject to – and this is where Mitch McConnell has, you know, McConnell’d with extreme effectiveness over the past 6 years.  The Majority Leader has tremendous authority over the calendar once items have been placed on it.  But you can’t put anything on the calendar if it’s not reported out of a committee, otherwise it just sort of sits in limbo.

Thomas:         Yeah.

Andrew:         If the Rules didn’t change then you would have the net result that everything could be stuck in limbo for forever.  That was sort of the, you know, the tractor chicken or the staring contest or whatever metaphor you wanted to use.  It was Republicans wanted to hold onto some power despite the fact that they’re in a minority, and Democrats didn’t wanna do that, but needed something on dealing with Rule 27, 7(a)(3).

Thomas:         Mm-hmm.

Andrew:         The last model for this was in 2001, it was Senate Resolution 8, and it made sense.  It says each party gets and equal number of members on all the committees, that a tie vote means that either the ranking member or the ranking minority member can report that measure out of committee.

Thomas:         Hmm.

Andrew:         You can go out on a tie.

Thomas:         Makes sense.

Andrew:         And the last power sharing arrangement, which I suspect they will just duplicate.  As of today we just have an agreement, we do not have the text of what this Senate’s power sharing arrangement will be. 

The last one also had a limitation on what is called “filling up the amendment tree.”  I’m gonna include a link in the show notes because if you like flow charts and you like Senate procedure, then you will love this Congressional Research Report. 

Thomas:         [Laughs] Why I’m lukewarm on flow charts and don’t like Senate procedure, so I… guess I won’t check it out!

Andrew:         [Laughs] That’s why I’m not summarizing it here, but basically the amendment tree – it’s super complicated.

Thomas:         Yeah.

Andrew:         It’s called the amendment tree because what happens is when you have a measure before the committee you can then propose an amendment, then you can propose to amend the amendments, and you can propose to amend the amended amendment.  So you have this branching, and literally it goes five levels deep, but the Rules prevent you from having a billion amendments.  There’s this technique that Lyndon Johnson used to use all the time called filling up the amendment tree. 

It goes like this:  because the Senate Majority Leader gets to speak first you can technically do this.  Chuck Schumer can say alright, Majority Leader exercising my privilege to speak first, I offer an amendment to the measure that’s on the floor.  Majority Leader Chuck Schumer here, exercising my privilege to go first.

Thomas:         Hmm.

Andrew:         I offer an amendment to the amendment that’s on the floor.

Thomas:         Ah.

Andrew:         You do that I think it’s like 17 times?  But I have to tell you, the flow chart was super hard for me to follow too.

Thomas:         [Laughs]  

Andrew:         So Chuck Schumer could offer like 17 different amendments, fill up the amendment tree, and then nobody else gets to offer any amendments until you go through each one of those amendments.  And as you go through each one of those amendments, you have time to debate the amendments-

Thomas:         Do it again?  Oh.

Andrew:         Well, and so the filibuster comes into play.

Thomas:         Ah.

Andrew:         You could basically force like 17 consecutive 60-votes before anybody else could modify the legislation in any way whatsoever.

Thomas:         That sounds like a hassle.

Andrew:         [Laughs] That would be a good way of describing it.

Thomas:         [Laughs]  

Andrew:         The idea was that you could, as Majority Leader, completely fill up the amendment tree and make everything that is debated on the floor of the Senate a take it or leave it proposition.  The last power sharing arrangement basically said we’re gonna agree on both sides not to use the privilege of speaking first to fill up the amendment tree.

Thomas:         Sure.

Andrew:         Which I think is a good thing.  Unsure whether that provision is going to be in this arrangement, it may be, and if you see that as, you know, sort of a limitation on the power of Chuck Schumer, that’s what they’re talking about.  They’re talking about the limitation on the ability to turn procedurally every matter reported out to the full Senate into a take it or leave it.  I will tell you, this power sharing arrangement was offered by Chuck Schumer and Mitch McConnell’s initial stake was “I’m not gonna sign onto this unless we write in the agreement that the Democrats are not gonna use the nuclear option to blow up the filibuster.”

Thomas:         Mm-hmm.

Andrew:         And keep in mind when you read – I’ll link it in the show notes – S.R. 8, it specifically says look, we get it, this does not cover all the Rules, but this covers the basics so that we can start governing the country.  It was deliberately silent, it said yeah, things we haven’t figured out are left open.  Schumer certainly could have caved, could have said-

Thomas:         Yup.

Andrew:         Okay, well- but the fact that he didn’t tells you that that is something that Schumer thinks is still in play-

Thomas:         Yeah.

Andrew:         -for the Democrats in this session right now; and it was McConnell who blinked.  Two days later McConnell said “well, Joe Manchin and Kyrsten Sinema tell me that they’ve had a longstanding opposition to getting rid of the filibuster so that’s good enough for me.”  If you’re a Democrat I want you to think about at any point in time if that had been a Democratic response, like how you would have evaluated it.

Thomas:         Yeah, I’m taking Ted Cruz and Mitt Romney’s word for it, so I’m satisfied, or something.

Andrew:         Yeah.  Lindsey Graham said “I promise I will definitely never allow a President of my party to cram through a Supreme Court nominee,” and if Chuck Schumer had been like “well, you know, Lindsey Graham double pinky swears so we’re good.”

Thomas:         Yeah.

Andrew:         You would’ve been like “Chuck Schumer you magnificent idiot.”

Thomas:         Yeah.

Andrew:         Let’s bring that full circle.  McConnell said yeah, okay, I’m willing to agree, and they just have to draw up the agreement now.  Again, as of when we’re recording this which is January 31st, that text has not been introduced yet.  Again, you know, [Laughs] nothing is getting reported out of committees in the next week.

Thomas:         Mm-hmm.

Andrew:         Then after that will be the impeachment trial of – [Sighs] ah, doesn’t it sound good to say former President Trump?

Thomas:         Yeah.

Andrew:         [Laughs]  

Thomas:         Two time impeached, two time popular vote loser, Donald Trump. 

Andrew:         Yeah.

Thomas:         Sounds like we won that one.

Andrew:         Yeah that is – so look, that is absolutely 100% a win.  The way in which it’s gonna play out is yeah, I get it, Manchin and Sinema, and look, I am – you and I, Thomas, are both far more critical of Kyrsten Sinema than Joe Manchin.  What that leaves open is sort of this dance of if McConnell obstructs everything for Manchin and Sinema to come out and be like look, yeah, we thought that this was the best way to preserve bipartisanship, but the Republicans are stopping us from getting COVID relief, the Republicans are stopping us from governing this country and so I reluctantly reconsider my view on the filibuster. 

Thomas:         It doesn’t look like it’s setting up for that based on the language that Kyrsten Sinema used.  I don’t know why, pointlessly took very firm stance, under no circumstance.  But we’ll see.  I actually have some thoughts on what they might do, but I think we’ve got too much to get to today because we also have an interview in the C segment.

Andrew:         Oh, oh!

Thomas:         We’ve gotta move on, but more on that later, safe to say.

Andrew:         Yeah, well I definitely want to hear those thoughts.  Shall we talk about the other big win?

Thomas:         I’m not tired of winning yet, so yes!

Andrew:         Okay.  This is a multi-level win.  We’re impeaching the President, the ex-President of the United States, again, for trying to destroy democracy as we know it, and just like in the Bill Clinton impeachment trial, Republicans attempted to introduce a motion to dismiss.  That is – again, I just want to emphasize, it is perfectly appropriate for them to do so.  Democrats introduced a motion to dismiss the impeachment at the outset of Bill Clinton’s trial and that failed.  There is nothing wrong with Republicans saying we think this impeachment is inappropriate and so – article has been sent to us, our considered judgment on a majority is no, go away. 

The grounds upon which the Republicans are attempting to argue this is that you can’t impeach President Trump now that he is no longer in office.

Thomas:         You keep saying impeach, by the way, you know, people keep hounding us for that.  It’s convict, you know.  I know we just loosely speaking say – he’s already been impeached but it’s conviction, right?

Andrew:         Well, but the argument is that that article of impeachment is invalid.

Thomas:         Right.

Andrew:         That the Senate has no jurisdiction over a former President.  Always good, we love pedantry-

Thomas:         Do we?  [Laughs]  

Andrew:         I do.  I love pedantry, so when I use impeach to mean removal, please do correct me on that, that’s an Andrew was wrong and I will own up to that all day wrong.  Here, I mean the argument is may an official be impeached for offenses committed while they were in office once they are no longer in office?

Thomas:         But he was impeached while he was in office.

Andrew:         Right, right.

Thomas:         So it’s about can he be convicted of an impeachment that took place when he was in office when he’s no longer?

Andrew:         Yeah, and well-

Thomas:         To me the obvious answer seems to be yes.

Andrew:         [Laughs]  

Thomas:         Because there’s nothing in the rules that says a dog can’t be impeached after they are no longer a criminal President, because we don’t want that dog to run for office again!  Part of it is barring that dog from holding office and doing another coup, insurrection thing that costs – by the way, the toll on the Capitol police is truly disturbing.  I don’t know if you’ve seen that, um, one took his life afterward, at least two deaths now, maybe three, I can’t remember.  It’s awful and it’s the kind of think you would have seen papered all over Fox News for 400 years –

Andrew:         Yeah.

Thomas:         If it had been a Democrat responsible for it.

Andrew:         Yeah, absolutely.  I want to speak to each of those things.  First, the result of the vote was 5 Republican Senators.  In addition to the usual suspects, Mitt Romney, Lisa Murkowski, and Susan Collins – by the way, I think the Democrats are doing a full court press on Murkowski right now.  I would not be surprised to see her switch parties. 

Thomas:         Hmm.

Andrew:         That’s what happened in 2001, it is typically sort of how one side gets around a 50/50 roadblock is you try and pick off the most liberal and most disaffected member of the other party.  I think that would be Murkowski.

Thomas:         I’m a little skeptical on the Murkowski thing because not only is she in a very Republican State, she’s up for reelection in 2022.  That feels like a tough ask.  Do you think she’d be incentivized to do that?

Andrew:         I think the way in which she would be incentivized is because I think that Trumpers are going to primary Murkowski.

Thomas:         Aaah.  That’s interesting.

Andrew:         She’s already had to do this once.

Thomas:         Yeah, they had to write her in!

Andrew:         Where she lost in the primaries and they had to write her in, so this is not a theoretical debate.

Thomas:         Gotcha, that’s a good point.  Maybe put an end to all that stuff, although honestly if she’s a Democrat do you think she’d get primaried by Democrats?

Andrew:         Well, look-

Thomas:         She might win, I don’t know.

Andrew:         She will immediately jump, she’s slightly to the right of Joe Manchin.

Thomas:         Yeah.

Andrew:         It will take some pressure off of Joe Manchin as being the most conservative Democrat in the Senate.  Again, further allowing Kyrsten Sinema to slip under the radar as being the most needlessly conservative Democrat in the Senate.

Thomas:         Yeah, she absolutely should be the one you’re most mad at.

Andrew:         Yup.

Thomas:         Don’t spend a minute being mad at Joe Manchin, I already talked about it on Serious Inquiries Only.

Andrew:         Yup.

Thomas:         It’s not worth it.  But still pressure him all you can, obviously, especially if you’re one of his constituents, you know, or not.  I guess you can call and write letters from anywhere.

Andrew:         That’s true, absolutely can.

Thomas:         [Laughs]  

Andrew:         Put a pin in that, that’s a prediction.  In addition to Romney, Murkowski, and Collins, they were joined by Ben Sasse, this is the first time – Ben Sasse has said a lot of things that are critical of Trump, but this is the first time he’s actually voted in a way that is critical of Trump, and that may have something to do with Trump no longer being in office; and also Pat Toomey from Pennsylvania, who is retiring at the end of his term in 2022, and I think would like to be governor of Pennsylvania. 

Rand Paul immediately was like “oh look, well, you only got 55 votes, you need 67 to convict, that means impeachment is dead on arrival,” and I’m not convinced of that.  Those 55 votes means we’re gonna hear from witnesses.

Thomas:         Hmm.

Andrew:         I have no idea how the impeachment is gonna go, but I certainly did not have – and it struck me as sort of fake bravado from Rand Paul.  The merits of that supposed motion to dismiss were crafted by Jonathan Turley, who is rapidly descending into Alan Dershowitz territory.  Jonathan Turley, George Washington University law professor, always been a gadfly.  He was involved in the last impeachment, always been media … hungry?  To put it nicely.  You know, always been sort of looking out for Jonathan Turley.  The things that he’s writing are different.  He held a closed door briefing for Republican Senators to present the argument that you cannot impeach a public official who is no longer in office.  That is a much stronger position than what he’s said in public, which is this is an unsettled legal question, which of course this is true with respect to the President.  It’s not entirely without precedent. 

I’m gonna link in the show notes, maybe we’ll do a deep dive on it, but Brian Kalt wrote a law review article that is, it’s called “The Law, History, and Practice of Late Impeachment.”  It was written in 2001 and it is widely recognized in legal scholars as being the seminal – it’s 124 pages long – as being the seminal case for what we call late impeachment, being able to impeach someone after they’re no longer in office.  It goes through, it looks at the history of 13th Century Saxony and England, it looks at State constitutions that were modelled after the U.S. Constitution that will say, in many cases, that the official can be impeached while in or after leaving office, and it looks at some historical precedent.  Again, all of these are kind of edge cases, but in 1876 the closest case is that the Secretary of War, William Belknap, B-E-L-K-N-A-P, he was impeached by the House a few hours after he resigned as Secretary of War.

Thomas:         Yeah.  Well, that brings up the obvious counterpoint.  It would be one thing if there weren’t the provision that we could prevent people from running again, maybe you’d have a case, but the fact that it’s written in the Constitution, right?  That they can bar – they can convict and bar someone from running for office again.  It would be a very easy way to get around that if you could just resign so that you could run again later.  You could instantly get out of jail free card, you do some crimes, everybody, let’s pretend we live in a non-polarized era in which everybody is aghast and the whole Congress is like “wow, we need to impeach and convict,” you could say “well, I’m reading the tea leaves here, I’m out,” and then I get to run again in four years.

Andrew:         That’s exactly right.  The question in the Belknap case, the resolution that went before the Senate was does resignation terminate the impeachment process?  The Senate voted and said no, no it doesn’t.  Belknap’s case is shockingly similar to Trump’s first impeachment.  Belknap was basically getting kickbacks for awarding these trading post licenses.  Think about the status of the United States in 1870, you’ve got all of this unorganized territory out west, so people are setting up these trading posts and they were under the jurisdiction of the Secretary of War because we were at war with the Indigenous people that lived there.  The scheme came to light six years later, it was pretty clear that Belknap was guilty.  Belknap learned that he was about to be impeached and was like “oh, okay, well.”  [Laughs]  

Thomas:         Found a way around this!

Andrew:         “Screw you guys, I’m going home.”

Thomas:         Yeah.

Andrew:         And left, went into President Grant’s office at ten in the morning and said “I’m getting – there’s about to be something that’s gonna look bad on my wife,” [Laughs]  I’m not kidding, this is his real story, “so I’m resigning so as to spare her the indignity of having the press go after her.”

Thomas:         What a noble … man.

Andrew:         Yeah.  [Laughs]  Then the House met and they knew he resigned, but they were like-

Thomas:         This is some B.S.! [Laughs]  

Andrew:         Yeah!  That’s right.  Specifically debated in the House was the provision that you alluded to, Article 1, Section 3 which says that judgment in cases of impeachment shall not extend further than to removal from office, okay, he’s gone, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States.  They said look, yeah, okay, he resigned but at least we can make sure that nobody ever lets this guy back in again.

Thomas:         Yup, case closed!

Andrew:         Yeah!  Again, what makes this – I wanna give a little bit of the opposite side.  Ultimately, 1876 if you’re using your counting by fours, that was an election year.  [Laughs]  Democrats had won back the house in 1874, due in large part to Grant’s – President Ulysses S. Grant’s scandals while in office.  So it became a politicized issue.  Yeah, you wanna talk about history repeating itself.  Democrats were saying look, you can’t trust Republicans, they’re all corrupt, look at this guy.  Then Republicans sort of circled the wagons and were like “oh, well,-

Thomas:         Typical liberal coastal elites.  [Laughs]  

Andrew:         [Laughs]  

Thomas:         In our one coast that we mainly are on, now.

Andrew:         Yeah, right.

Thomas:         The other coast wasn’t as elite, I guess, probably. 

Andrew:         At the end of the day, the Senate did vote 37-29, straight up that’s a majority, that it had jurisdiction over Belknap’s impeachment, just like this Senate voted 55-45 that it had jurisdiction over Trump’s impeachment.  It is 100% history repeating itself.  Ultimately Belknap was acquitted, they fell short of the 2/3, which, you know, we’ll see if that part of history repeats itself.

Thomas:         Yeah, I’m gonna make a prediction that Trump is not gonna be convicted, I am happy to make that prediction and stand by it.

Andrew:         [Sighs] I… I don’t think – I think there’s a possibility.

Thomas:         Hmm, you wanna go the other way?  Yeah, there’s a [Laughs]  

Andrew:         No no no no!  Look, if you gave me four to one odds right now?  I’m thinking, do I think it’s 25% likely, 20-25% likely?

Thomas:         Yeah.

Andrew:         I think I would do that.  I think I would take 4-1 odds.  You gotta get juice, but I would not say that it’s worse than 80-20.

Thomas:         Okay, so 5 T3BE answers.  [Laughs] 3 extra credit.

Andrew:         [Laughs]  

Thomas:         No, I’m just kidding.

Andrew:         Alright, we’ll come up with something off the air.

Thomas:         [Laughs]  

Andrew:         One more thing, Article 1, Section 3 says when the President of the United States is tried, the Chief Justice shall preside.

Thomas:         Hmm.

Andrew:         We have learned that John Roberts has said “I don’t wanna preside over this thing.”  [Laughs]  

Thomas:         Yeah, that is-

Andrew:         I’m busy, I’ve got stuff to do.

Thomas:         I’m still weirded out about that.  Seems like … you have to.

Andrew:         Well, here’s the way that breaks down.  Roberts’ interpretation is that the President of the United States means Joe Biden and he is not presently being tried.

Thomas:         Oh, wow.

Andrew:         It doesn’t say impeached, it says tried, that’s different-

Thomas:         Hmm.

Andrew:         That’s the proceeding in the Senate, so he does not have to preside over the proceedings.

Thomas:         That was his choice?  Or was it Democrats wanting Leahy to do it?  Was that Roberts initiating that?

Andrew:         Yeah, it’s Roberts saying that.

Thomas:         Huh.

Andrew:         Again, how you would resolve this some other way I don’t begin to know.

Thomas:         Yeah.

Andrew:         I think this is Democrats going okay, well we will defer to the Chief Justice of the Supreme Court for his interpretation of this provision of the Constitution.

Thomas:         [Laughs] Yeah. 

Andrew:         Which is, you know, probably a sensible thing to do.

Thomas:         Alright, alright.

Andrew:         No, I wish – I wish it were Roberts that were presiding.

Thomas:         Yeah, I kinda do too.

Andrew:         Yeah, but he didn’t want to and he gave a very nuanced view.  I have seen some idiots claiming that – a guy named Sean Davis on Twitter who’s just a MAGA buffoon, claiming if the Chief Justice isn’t presiding that means it’s not a real impeachment and it’s an, I dunno, Q Anon, Pizzagate fake basement- I read you the provision, you can look it up yourself in the Constitution.  Lots of impeachments have taken place of judges of former executive branch officials in which the Chief Justice does not preside.

Thomas:         Oh, interesting.  Okay.

Andrew:         Yeah.

Thomas:         I guess that’s not so weird.

Andrew:         Yeah.

Thomas:         Alright, huh.

Andrew:         In fact, impeachments in the Senate have, of judges, have often been – often the entirety of the impeachment proceedings are devolved only to the judiciary committee.

Thomas:         Hmm.

Andrew:         When you’re talking about a judge.  Then there’s a vote on all of the Senate, but basically they look at the report of the judiciary committee rather than the entire Senate having to sit as a trial.  There is nothing constitutionally infirm about someone else presiding over the impeachment of Trump now that he is no longer the President of the United States. 

Thomas:         Wow.

Andrew:         And there’s nothing constitutionally infirm about issuing a judgment, about trying him.  There we go.

Thomas:         Alright, well that’s impeachment.  I know we have so much more to talk about, but we’ve got an interview!  So we’ve gotta get on the line with Ruben Amaya, we’re gonna hop over to that and more, I’m sure, on the impeachment coverage later, but for now let’s get to our interview.

Interview with Ruben Amaya

[37:32.8] [Commercial – Stereo App]


Thomas:         And we are joined by Ruben Amaya, Democratic candidate for Maryland House of Delegates, District 10.  Ruben, how’re you doing today?

Ruben:           Good, how are you?

Thomas:         Oh, great!  We are so excited to talk to you.

Andrew:         Ruben, why don’t you just open up, talk a little bit about how you got involved in politics.  I wanted to have you on the show because you are – are you 21 now?  Are you still 20? 

Ruben:           I’m currently 19.

Andrew:         [Laughs] 19!

Ruben:           But I will be 21 if elected.

Andrew:         I love that, and one of the things that is a recurring theme on our show, we’ve had a hard four years Ruben and we have a lot of listeners-

Ruben:           I feel for you guys!

Andrew:         You know, who are sort of wondering how they can get involved and make a difference and I thought that your story was pretty inspiring.  Alright, you’re presently 19, talk to us about how you got involved in politics.

Ruben:           Yeah, so my involvement in politics really stemmed all the way since I was a freshman in high school, and it really stemmed from the fact that when I was seeing a lot of what occurred in the former President, and the issues that really created a divisive attitude amongst both parties.  It was something where I just didn’t want to sit there and see, not just my generation, but even older generations, continue to buy into this, where if we disagree on something that’s that, and there can’t be engagements, there can’t be a compromise.  So I made it my mission to get involved locally, whether it was through planning rallies or town halls with local officials. 

A lot of it just stemmed from what was occurring around the nation.  In 2018, what we saw in Parkland, immediately the day after I set up a local town hall where we invited local county officials, representatives from Cardin’s office and other people alike, and we had the whole library packed.  Even last year, what we saw around the nation with demands for racial justice, I remember that week I called my county executive, I said “sir, is it okay if I can get this space at the courthouse to do a rally?”  He gave it the go-ahead and we had over 150 people attend with local county councilmen and things like that.  Later that year in November we had the SMART Act, which was a major police reform bill, passed in our county council.  A lot of it is just seeing how I can get involved in the community and then turning that into action.

Andrew:         I remember – remember rallies, Thomas?  [Laughs]  

Thomas:         Mmm.

Andrew:         Ah, man!  What a day gone by in terms of-

Thomas:         Well, Ruben is 19 and has already organized more rallies than I have, I think.

Andrew:         [Laughs]  

Thomas:         So…

Andrew:         I mean, it sounds like that was a pretty positive experience, right?

Ruben:           Mm-hmm.

Andrew:         You know, you were able to get folks, and Maryland is a very Democratic State, you mentioned Senator Ben Cardin, this is, you were able to kind of get a toehold in with the establishment.  How did that transform for you into wanting to run for office?

Ruben:           Yeah, so a lot of it was, you know, now that we were able to turn our activism into action, unfortunately what we need is change in a faster pace than what we are seeing.

Andrew:         [Laughs]  

Ruben:           The issues that we are seeing in our country, such as the environmental crisis, is not something that can be gambled within the next ten years.  As I’m sure you both know, and your audience knows, this next decade what we do and how we tackle the climate crisis is crucial in how our future generations are going to tackle it.  That’s something you can’t gamble with.  Our education system, same thing, as well as our criminal justice system.  The reason why I decided to run was because I wasn’t comfortable just sitting on my hands knowing there’s a lot more I can do to serve my constituents and serve the people of Maryland.  That’s why I decided to run, because I know that in a representative democracy, the whole point is to listen, to engage, and then act on it.  Unfortunately, you know, there are people that just do the listening, that’s it, and don’t act on it.  I believe, in my opinion, we can’t afford that in the next decade or so, where the people of our country and our State just want to see change.  They want to know that someone is listening to them, and is going to act on their grievances and concerns.  Unfortunately we haven’t been seeing that too much.

Andrew:         This is for the House of Delegates race.  That general election is November of 2022, right?

Ruben:           Mm-hmm.  Right.

Andrew:         In terms of, you know, as we have folks who are listening who are thinking about “well, maybe I should get involved,” now’s a pretty good time to start building that infrastructure.

Ruben:           Right.

Andrew:         Talk to us a little bit about the nuts and bolts of that process, of going from – you know, because I was a lot like you [Laughs] I was politically active back in high school, it’s just that high school’s a little further in the rearview mirror for me than it is for you.  I often sat around – my dream was to be on the Supreme Court, so that really is a lot of just sitting and hoping that someone nominates you, which is appearing less likely day by day.

Thomas:         Mm?

Andrew:         [Laughs] But no, I’ve also thought about what it would be like to hold elective office, particularly back then.  Talk to us about the operationalization of going from thinking about running for office to actually taking the steps.

Ruben:           Right.

Andrew:         What’s some of the hard work, boots on the ground, stuff that you’re doing?

Ruben:           Yeah, so I mean one of the toughest parts is just galvanizing people and trying to get them to buy into what it is you want to do.  In our district it’s generally tough, because we have three incumbents.  The tough work that I had to do was try to convince a large amount of my constituency to see that, you know, you’re demanding change but you aren’t seeing it.  It ties in with our whole motto, “A New Way Forward.”  Are we going to keep electing the same people who promise the same things but we see no change, or would you rather want to go behind a movement that is willing to bring that at the forefront? 

We started this last summer in June, and a lot of it is really just getting the right people on your team, understanding the intricacies of running for office, it’s a lot more than just announcing and you’re going, it’s understanding the finance law, understanding the political dynamics of what you’re running in.  Pretty soon we’ll be starting our ground operations and door knocking and things like that.  It really does take a lot of work than just announcing your run.

Thomas:         Well, I imagine when you’re knocking doors, you know, to ask the question I imagine is on a lot of our listeners mind.  When you’re knocking doors, I imagine people are gonna be wondering, what is a 19 year old doing?  [Laughs]  Running for this spot.  What’s gonna be your response to some skepticism over perhaps your young age relative to maybe what they’re used to seeing?

Ruben:           I’m glad you asked that question, because that is something I do get a lot as a young candidate.  The answer that I say to this is, you know, we constantly elect the same elected officials, and as I’m sure you all know covering our former President, who was one of our oldest and not even he could pass proper legislation or behave his own age.  My answer to that is, you know, leadership has nothing to do with your age but has everything to do with your maturity and how far you are willing to go to represent your constituents, and how involved you’ve been in your community.  The thing I hate about legislatures is they say “I know what’s best for you,” or “I know what you need.”  No you don’t, you don’t have a degree in every field, or you don’t understand the livelihoods of that certain family.  The job that a legislator must do is to listen, engage, empathize, and try to understand their constituency. 

When knocking on doors, that has been the message we have been telling voters, and we’ve actually gotten a good reaction, because what a lot of people are seeing now is that we need to try to support a different perspective in our political process, and a lot of people have been inspired by these younger generations, from the work that they’ve done.  If we really look at the activism from last summer, mainly it was millennials and Gen Z-ers who were organizing these rallies, organizing these events, which put our representatives in a position where they had to act.  It’s really great to see voters now believing in a different pathway.  You know, you don’t have to be 30-something to enact in change. 

One thing I commit is that I’m not here to say I know everything.  What I am here to say is if elected, I will bring the right people to the table, I will listen to their viewpoints, and then work to enact legislation.  That’s what every legislator should admit, but unfortunately they don’t, and that’s why a lot of things don’t get passed.

Andrew:         And Maryland District 10, I mean, you alluded to this earlier with respect to the three incumbents, and that’s based on the way in which voting is allocated in Baltimore County in Maryland, but the incumbents are Democrats, right?  We’re not talking about you’re running against monsters that have aided and abetted-

Thomas:         Yeah, Marjorie Taylor Greene or something.

Andrew:         [Laughs] Right.

Ruben:           Right.

Andrew:         Q-Anon supporters.  Is it fair to say that, you know, you sort of looked at that situation and said that Maryland is a deep blue State and we want, sort of not just younger energy but also more progressive energy in terms of actually representing where the heart of the Democratic party, where the people who are volunteering and energized and active kind of are.  You mentioned climate change and other progressive issues, is that the kind of strategy that you’re putting into place? 

Ruben:           Yeah.  In the Democratic party within Maryland, we have such a strong progressive base, it’s kind of a sad thing where a lot of moderate Democrats, they ride on the coattails of these progressive groups and then once they’re in office they don’t try to engage.  They don’t try to see the other side of what we can do to enact certain issues.  I can say within my district, the three incumbents are generally moderate in certain views, and some have been progressive in other areas, but what we are seeing is that the party is changing towards a more progressive attitude and that’s because, like I mentioned earlier, we just can’t sit here and do nothing.  We have to act, we have to do so in a way that engages our constituents.  The progressive base is really good at getting people involved in community activism, so that’s something our campaign is going to utilize, to get people involved in politics, to get them involved in the political process and try to get them to galvanize behind the issues they care about.  It’s also just expanding our voice. 

Another thing is not only would I be the second youngest elected in State history, but I’d be the first Latino elected in Baltimore County in Maryland.  It’s not just expanding the progressive voice, but also our minority voice.  Maryland has such a strong Latino population, and it’s growing year after year.  The fact that I’d be the first Latino elected in my County, which is one of the most diverse in the State, not only is it a barrier breaker but it goes to show how long we have to go to continue to bring all voice to the table.  What our campaign is really just galvanizing is on that.  We are here to bring all voices to the table.  We are different because we are going to bring different voices to the platform, to the table, when proposing and solving solutions.

Thomas:         You know, you bring up a good point, Ruben.  Also there’s something that we tend to do, there’s a bias that we have as a country and also a lot of cynical actors on the right say this too.  Whenever it’s a question of wow, wouldn’t this be exciting if we had – whether it’s the first female President in 2016 it would have been, or whether it’s the VP.

Ruben:           Mm-hmm.

Thomas:         There’s the cynical answer, “oh, why are you just voting based on demographic, it should be about qualifications,” and I’ve always thought, first off, qualifications is a very nebulous, subjective term when it comes to representative government because there’s no objective list of qualifications that somebody has.  That only comes up when it counts against people who haven’t typically been elected, you know?  It only seems to come up when it counts against, you know, women, or people of color.  But secondly, what the job of a representative is to do is to represent.  So the fact that it’s been overwhelmingly white and male and older for so long means that they aren’t, perhaps, representing us as well.  Maybe they are less qualified to represent the people than typically they’ve been thought of being.

Ruben:           Right, and a lot of that just – it has to be reflective of our country.

Thomas:         Yeah.

Ruben:           I can only speak to the State of Maryland, but Maryland is one of the most diverse States in our country.  One of the main reasons why I’m running is that it’s also that I know that other people are watching, and that when you could be the first of something it could possibly inspire a whole, you know, a whole different base of people that probably never saw themselves doing that.  You know, a lot of the time why people tell me they don’t engage in the political process, they say “Ruben, I don’t even see people like me doing what you’re doing.  Doing the things that you’re advocating for.”  I tell them, well that’s why we need to expand our diversity within our legislature. 

That’s one of the main reasons why I’m running, because I know if I win it can hopefully motivate other people to see themselves doing the same thing, not just in political office but in the careers that they want to do.  A lot of it is about expanding our voices, the diversity within, who is representing us.  Like you mentioned, taking away the notion that there’s these set standards for qualifications.  That’s why I mentioned that has nothing to do with – you can have all the experience in the world but still do a terrible job.  It has everything to do with putting your ego in place and listening to your constituents and empathizing with what they’re going through and translating that into legislation as a representative.

Andrew:         Really well said.  I like that.

Thomas:         Ruben, thanks so much for joining us, inspiring story.  We’ll definitely be keeping an eye on you.  Is there any call to action?  I know it’s kinda, it’s not only a national show it’s an international show so I don’t know how many direct constituents we have listening, but probably a few.  Is there anything you want to point people to doing if they want to get involved?

Ruben:           Yeah, so if you want to get involved or you can chip in $5 dollars or $10 dollars, we are a grassroots campaign.  You can got to our website at  We are entirely grassroots efforts, we aren’t taking money from special interests and we are really trying to set a standard of what politics could be in the future.  If any of that interests you and you are from our area, go to our website and sign up to volunteer, and if you’re not we would really appreciate you chipping in to help us out.  As you all know, politics, you can’t do this without the proper amount of money.

Andrew:         [Laughs]  

Ruben:           If any of that interests you, we would really appreciate the support, and thank you guys so much for having me on.

Thomas:         Excellent, thanks for coming on!

Andrew:         Thank you so much, this was really great and I think the message of – Obama used to say “don’t boo, vote,” and I think don’t – there’s a way to translate that into, you know, don’t just angrily Tweet, get out there and get active and make a real difference.  I think it’s really inspiring that you’ve put a lot of thought into this, put a lot of effort into it, that you are kind of organizing for the long run and I really do wish you all the best, Ruben.

Ruben:           Thank you.

[56:09.5] [Patron Shout Outs]

T3BE Answer

[1:06:08.0] [Segment Intro]

Thomas:         Alright, T3BE Answer time, another tough question.  Andrew has definitely porked the test, but let’s see if I somehow found a way around the porking.

Andrew:         [Laughs] Yeah, Thomas, this was a question about a commercial lease.  A landlord commercially leased his building to a woman intending to open up an ice cream shop.  She installed a whole bunch of equipment, which was permitted by the lease, began making the ice cream, but then the freezer, the cooling system broke, the freezer overheated, the ice cream all melted.  She asked the landlord to fix the cooling system, he refused.  She had to close her store while searching for a mechanic to fix the cooling problem.  She stayed on the premises and was working on new marketing projects.  Angry at the landlord over not fixing the cooling system, which has still not been fixed, she refused to make her next rent payment and the landlord began eviction proceedings.  In response, the woman sued for breach of contract, for breach of the lease.  Assuming the lease is silent, who will prevail?

Thomas, you immediately gravitated to that the woman would prevail, you were choosing between answer C, because the landlord breached the implied warranty of habitability.  Rejected that answer, good rejection.

Thomas:         Oh wow.

Andrew:         There’s not warranty of habitability in a commercial lease.

Thomas:         Oh interesting.

Andrew:         If you think about habitable, that comes into play in residential leases and think about it, it’s like if – I actually had a condition like this before I went to law school where the landlord failed to fix a window so in D.C. in winter it was-

Thomas:         Yeah.

Andrew:         -below 30 degrees Fahrenheit in my apartment, which is not a habitable condition! [Laughs]

Thomas:         Not by humans!

Andrew:         No.  So, when the landlord does stuff that means you can’t live there in a residential lease you can, under certain conditions – please don’t take legal advice from a podcast – sue your landlord for breach of the implied warranty of habitability.

Thomas:         Hmm.

Andrew:         Uh, a commercial lease doesn’t have that.

Thomas:         So, I kinda lucked into that, I mean kinda lucked.  I thought the fact that she was in there doing, you know, marketing plans or whatever, I thought that would be a good reason why you couldn’t argue this habitability thing.

Andrew:         Well, that gets into the answer you chose, which was the landlord breached the covenant of quiet enjoyment by constructively evicting her prior to the withholding of rent.  It would be hard to argue that you’ve been constructively evicted if you’re still on the premises.

Thomas:         True.  Yeah, that wasn’t very smart of me.

Andrew:         You could still be there, but to be constructively evicted you have to have no use of the premises.

Thomas:         At all?

Andrew:         Yeah, well-

Thomas:         It just seems like with a commercial lease and you rented it to make ice cream, it seemed a little tough to be like yeah, you can still sit in the closet.  [Laughs] You can still – I don’t know, I know it was a reach, I guess I really wanted the woman to win, but you know.  Apparently, Andrew is anti-feminist and he wants the landlord to win.

Andrew:         [Laughs] Yeah, I do not – there is not moral imperative associated with bar questions.

Thomas:         Sure!  I see who you are.  Yeah, okay, why don’t you mark me down on this one?  Andrew, the man.

Andrew:         [Laughs]

Thomas:         [Laughs] I’m just resorting to any tactics I can at this point.

Andrew:         Yeah, I know.

Thomas:         I’ve got no ability to answer questions correctly on this new test.

Andrew:         Answer A, sadly, is correct.

Thomas:         Yeah, simple as that.

Andrew:         It’s the landlord who will prevail because the woman had no legal reason for withholding rent payments.

Thomas:         What is the weirdness with the refusing to make the next rent payment?  That was another reason I was leaning toward the woman, because nothing’s even happened yet.  It says she refused to make the next rent payment.  Was I reading too much into that?

Andrew:         Well, no.  That’s what came up.

Thomas:         Yeah.

Andrew:         This dispute, so you pay prospectively.  Presumably-

Thomas:         Yeah, but he starts to evict her before she even does anything, really, other than saying “I’m not gonna- I guess that’s fine.

Andrew:         Well-

Thomas:         If somebody says “I’m not gonna pay the next payment” you can start eviction proceedings?

Andrew:         Well, it says “refused to make the next rent payment.”

Thomas:         Yeah.

Andrew:         So presumably that payment came due and she didn’t pay, and so at that point if nothing else is –

Thomas:         Ah, that threw me off.  I dunno.

Andrew:         -you can begin eviction proceedings.  Yeah, I mean, look, think about it from a commercial standpoint.  What the law basically says is if you want to sue for breach of contract, go ahead and sue for breach of contract.  If your contract permits you to withhold rent barring certain obligations of the landlord, then the contract says it, but in the absence of that we’re not gonna let you-

Thomas:         What’s the minimum that a landlord has to do in this arrangement?

Andrew:         [Laughs]

Thomas:         Nothing?

Andrew:         Well again, practically speaking the contract terms would not be silent.

Thomas:         Yeah.

Andrew:         You would sort of go back and forth and you would say-

Thomas:         Oh man.  [Sighs]

Andrew:         Hey, I’m doing this for an ice cream shop, if I ever can’t operate this as an ice cream shop because you know, you have shut off electricity, then I get to withhold that from the lease until you’ve fixed it.

Thomas:         Yeah.  This is one I probably should have gotten, I guess.  This test is just really-

Andrew:         It’s tough.

Thomas:         Once it’s gotten so hard it’s gotten me in my head on everything and I don’t-

Andrew:         I do get that. 

Thomas:         Yeah.

Andrew:         Again, just remember that when we’re talking about – particularly in landlord/tenant situations – those are feudal obligations.

Thomas:         Yeah.

Andrew:         In a commercial lease there is no obligation to make repairs outside of kind of the broad category of rendering the property entirely unusable.  That’s because you have a different equitable situation as opposed to it being someone’s house.

Thomas:         Right.

Andrew:         Again, they probably ought to change that but the reality is all commercial leases are, you know, the terms of the lease are what are gonna control.

Thomas:         Okay.

Andrew:         It’s tough.

Thomas:         Well, I blew it, let’s find out who didn’t blow it and see who this week’s big winner is.

Andrew:         This week’s winner, Thomas is Tina Ament on Twitter, that is @IronmanTina, love that name, who says “the answer is A.  The woman has a ‘rocky road’ because no warranty of habitability or covenant of quiet enjoyment for commercial leases.  Thus, her arguments ‘melt’ away.”  [Laughs] And I love dad jokes and bad puns as much as anyone.  A bunch of people pointed us to Tina’s answer, which I have to agree is a good one.  Congratulations Tina on being this week’s winner, and everyone if you want more ice cream related puns follow @IronmanTina on Twitter.

Thomas:         That’s our show, thanks so much for listening.  Reminder, come check us out on Stereo on Wednesday.  That is gonna be every single Wednesday.  So, if it’s a Wednesday, that’s now! [Laughs]

Andrew:         [Laughs]

Thomas:         Every Wednesday at 5 Pacific, 8 pm Eastern.

Andrew:         Yeah.

Thomas:         Come hop on that Stereo app.  Find us, @Torrez is obviously Andrew and @SeriousPod is me-

Andrew:         Oh, you should’ve been @Torrez and I could’ve been @SeriousPod.

Thomas:         We could’ve really messed with people.

Andrew:         Yeah, oh well.

Thomas:         That would’ve damaged your credibility, so…

Andrew:         [Laughs]

Thomas:         No, come join us on Stereo.  Alright, that’s our show, we will see you next time.

[Show Outro]

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