Transcript of OA498: The Garland DoJ Coverage is Completely Wrong

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 498.  I’m Thomas, that’s Andrew, how’re you doing?

Andrew:         [Laughing] I’m doing fantastic, Thomas, how are you?

Thomas:         I am doing great.

Andrew:         Feels like this show is on sale for $4.98, right?

Thomas:         Yeah.

Andrew:         You use that now and also-

Thomas:         I think 499 as well.

Andrew:         Use that joke on Tuesday, yeah.  [Laughs

Thomas:         You should’ve saved it; it would’ve been killer.  Naw, it’s still good.  In terms of how I am, we had a funny thing happen which is – so Lydia has wanted to get a bird feeder for a while, have some birds in the tiny backyard we have, but the problem is Arlo is allergic to literally everything and birdseed has a bunch of stuff he’s allergic to, so Lydia finds one, a special birdseed, whatever. 

Andrew:         Mm-hmm.

Thomas:         Finally gets it out there, takes a while but a couple birds come in, she was all proud, and then last night we have a Disney-movie’s worth of mice in our yard now.

Andrew:         [Laughs] Oh god! 

Thomas:         Like a full Pixar movie-

Andrew:         I’m sorry for laughing!  [Laughs]

Thomas:         Lydia is freaking out.

Andrew:         Sure.

Thomas:         I’m like, well, they look really cute to me, but I’m worried about – they chew on stuff and they cause problems.

Andrew:         They’ll eat all your cheese.

Thomas:         Lydia’s birdseed brings all the mice to the yard.

Andrew:         [Laughs] I’m sorry for laughing but that is really cute.

Thomas:         If anyone needs any mice…

Andrew:         [Laughs]

Thomas:         Actually, we could put the OA logo on them, send ‘em out as merch.  Mice merch comin’ to a merch store near you.  Anyway, enough of my Disney-esque [Laughs] challenges over at my house.  Let’s get to our – this is a loaded show.  This show has as many good topics as I have mice, and that is saying something!

Andrew:         [Laughs]

Thomas:         [Laughs] I tell you, she was like “how many are there?  Two?  Three?” and I didn’t have the heart to tell her.  I was like, “Do you want me to tell you how many I see right now?  I will tell you if you want me to.  I see eight right now, all at once and that means there’s a lot more where that came from.”

Andrew:         Yeah, yeah.

Thomas:         Holy moly!

Andrew:         That means 50, yeah.  Wow.

Thomas:         Anyway, let’s do our announcements.  Usually, we give a little teaser for Tuesday, what’s our Tuesday teaser?

Andrew:         Yeah, we’re gonna cover two things on Tuesday.  One is the Eric Swalwell, Mo Brooks, you know the Democrats are invading my house.

Thomas:         Oh, yeah!

Andrew:         I know you’ve seen the news.  We’re gonna talk about what service of process is and kinda do that deep dive and all of the things related to that.  We could repeat the funny stuff here.

Thomas:         Mm-hmm.

Andrew:         You know, it required a little extra space and we have two slightly more pressing topics that have broken this week.

Thomas:         Yeah.

Andrew:         We’re also going to revisit – I’m really excited about this – lots of feedback, lots of involvement with our Christian healthcare-

Thomas:         Yeah.

Andrew:         -cost sharing ministries episode, and I … stand by, I think you stand by-

Thomas:         You know?  [Laughs]

Andrew:         [Laughs]

Thomas:         Andrew, I’m gonna do a little mini–Andrew Was Right because when you said – on the show you’re like “oh, some of you may know people on these things or are maybe looking at it yourself,” and I was like well, nah.  [Laughs] That doesn’t sound right!  And then, wouldn’t you know it?  Tons and tons and tons of feedback.  Sounds like this is a very real issue that we do have a lot of listeners that definitely is a concern of theirs, some of them are pushing back a little.  Can’t wait to hear more about that.

Andrew:         Alright!

Thomas:         It sounds like there’s no legal issues involved in moving the moon, so we can’t-

Andrew:         [Laughs]

Thomas:         I wish we could cover that one.

Andrew:         Oh gosh, yeah.  [Laughs]

Thomas:         Eminent do-moon?

Andrew:         [Laughs] Eminent do-moon is an A+ dad joke, I gotta tell you.  You quoted me out of context and when they added back in the sentence-

Thomas:         [Laughs]

Andrew:         -that’s like, fantastic.

Thomas:         That was the best ever “you quoted me out of context,” because you know, I’ll admit when I saw the thing that was like “you didn’t get the full thing” I was like oh, great.  Is this another hatchet job by the media?  I’d better read this.  [Laughing] It’s like … it’s worse!

Andrew:         Yeah.

Thomas:         There’s no – he’s like “I asked could the forest service move the moon?”

Andrew:         [Laughs] Right!

Thomas:         You know.

Andrew:         Yeah, not just me

Thomas:         [Laughs] Or something.

Andrew:         [Sighs]

Thomas:         I don’t even know what he thought the clarification was.  Anyway, that’s excellent.

Andrew:         Ah, it’s so good.

Thomas:         But we’d better get to our show.

Andrew:         But alas, yeah, it’s time to hit the books.

Thomas:         Ooh, that’s a good catchphrase.  Remember to keep that.

Breakin’ Down the Law:  Women’s Health Protection Act

[5:32.5] [Segment Intro]

Thomas:         Alright, Andrew, this is a question we’ve gotten from time to time I think, I haven’t heard the breakdown yet, but Democrats have reintroduced the Women’s Health Protection Act and it seems like this is an effort to protect everybody from Roe getting dismantled.  How’s this work?  What would it do?  Does it have a chance of accomplishing that?

Andrew:         Yeah, so a bunch of great questions.  This legislation has been introduced continuously since 2013 with a couple changes here and there.  It was S.1645 in the last Congress, has not been docketed yet as of this record, it was just announced last night.  Richard Blumenthal of Connecticut is the lead sponsor, but there are tons of cosponsors.  Basically, the idea, right, is, as those of us who care about reproductive freedoms are increasingly terrified of what this Supreme Court will do the question is well, we seem to be a majority of the country pretty much everywhere, is there something we can do to preempt horrible State laws with federal legislation?  The answer is yes.

Thomas:         Oh, wow!

Andrew:         The answer is very clearly you can establish national federal protections for reproductive health services.  You can’t do it during the filibuster.

Thomas:         Right.

Andrew:         But I will point out that Kyrsten Sinema is a cosponsor of this legislation.  Then you’re gonna be asking, “what about Joe Manchin?”  Joe Manchin has been super quiet on abortion rights.

Thomas:         Hmm.

Andrew:         He has a mixed-to-positive record.  Usually where he gets dinged by outfits like, you know, NARAL Pro-Choice America and Planned Parenthood Action are for voting for Republican judges who have a bad record.

Thomas:         Oh, yeah.

Andrew:         And it’s scored as an anti-choice vote, and its fair for them to score it that way, but you know, you need to understand.  Similarly, Lisa Murkowski has a mixed voting record on abortion, and most of her negative votes are voting for her fellow-

Thomas:         Uh-huh.

Andrew:         Republican nonsense judges.  Prior to Democratic control of the Senate, S.1645 was not even put up for a floor vote during the last Congress, it just was introduced in 2019 and sat and languished.  At minimum we can force a floor vote on this issue.  Where it goes from there?  You know, that is a function I think of what the public backlash is likely to be to how badly this Supreme Court guts protections for abortions.  This is really the, you know, without talking about the likelihood of passage in the near term, this is really the framework that you want if you are a Democrat, if you’re thinking about “how do we protect abortion rights given an unstable Supreme Court?”  The answer is you first assert jurisdiction through interstate commerce. 

Thomas:         Mm-hmm.

Andrew:         That’s exactly what this law does.  Section 2 has factfinding, it’s paragraphs 12-14, and look, this connection to interstate commerce is as good as hundreds of pieces of legislation.  A factfinding that lots of people travel across state lines to get abortions.  The fact that abortion service providers buy drugs and hire individuals across state lines.  This very clearly burdens interstate commerce.

Thomas:         Oh yeah.

Andrew:         Yeah.

Thomas:         Sometimes the interstate commerce is a stretch but this feels like a pretty closed case.

Andrew:         Yeah, I think that’s right.  I think that’s exactly the right waw to put it.  [Laughs] Sometimes it is a stretch.

Thomas:         Yeah.

Andrew:         This is not “we’re regulating the interstate shipment of fruit,” [Laughs] right?  But it is individuals travel; healthcare providers are in economic and commercial activity where there is an interstate market for those services; they purchase medicine, medical equipment, other necessary goods and services; etc. 

Okay, I also want to add parenthetically, because I really love this language, I’m not sure when this got added to S.1645, but part of the findings in paragraph 11 say “Not all people who become pregnant or need abortion services identify as women.”

Thomas:         Mm-hmm.

Andrew:         “Access to abortion services is critical to the health of every person regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status.  This Act’s protection is inclusive of all pregnant people.”  I’m really glad to see that language in and I might include that disclaimer, particularly as we read through legislation and court decisions that tend to use non-inclusive language.

Thomas:         Yeah.

Andrew:         Anyway, what does it do?  What this piece of legislation would do is give you a statutory right, as a provider, to provide abortion services without limitations.  It then specifies 12 kinds of limitations that states cannot burden on your abortion services.

They can’t require you to perform specific tests unless generally required for the provision of medical comparable procedures.  They can’t require that the same health care provider provide follow-up specified tests, services, and procedures.  This is another one of those trap laws that states trying to restrict abortion would say like “well, you have to have 11 initial visits and then afterwards you’ve gotta follow-up every week.”  You know, it was just designed to marginalize abortion facilities because, you know, one of those follow-up visits would require that you have an ultrasound, and another one would specify that you have to have, like, a level 5 blood test.

Thomas:         Yeah.

Andrew:         And a high level NICU and all that.  It gets rid of that.  It says they cannot require that you provide medically inaccurate information.

Thomas:         [Laughs]

Andrew:         That’s a good thing.  It says you may not restrict based on a limitation on the healthcare provider’s ability to prescribe or dispense drugs.  That’s another area they would say oh, well, there’s a 1% chance that you’ll then have in a late term abortion you’ll deliver a fetus that has an abnormality that requires kidney medication and if you don’t have that – right, again, just ways to drive Planned Parenthood out of business.

You cannot restrict based on limitations via telemedicine; based on restrictions concerning the physical plant, equipment, staffing, or hospital transfer arrangements; based on medically unnecessary in-person visits.

Then, and this one I want to stick a pin in because I think it is – not even for today’s episode – because I think it’s sort of part of the larger debate that I think is really misguided.  It is a prohibition on abortion prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.  I get why a lot of the debate has sort of focused that way, but in my view it’s really the wrong inquiry.

Thomas:         Hmm.

Andrew:         I think we’ve gotten a lot of bad legislation and bad case law because abortion rights advocates are sort of focused on the question of fetal viability as opposed to the original question from Roe, which was not about the viability of the fetus outside the womb at all, but based on how do you balance rights?

Thomas:         Yeah.

Andrew:         How do you weigh competing interests?  I may be a lonely voice in the wilderness on that, but that’s mine.  Anyway, a prohibition after fetal viability when it would pose a risk to the pregnant patient’s life or health and then a requirement – I’m really glad this is in the law – that the patient seeking abortion services state their reasons for seeking the services and then any limitation based on the patient’s articulated reasons.  Because the way in which the pro-life industry was marketing those kinds of trap laws is to, you know, pass a bill that says it’s illegal to have – and they would make analogies to China and say “for purposes of sex selection” or-

Thomas:         Ah, yeah.

Andrew:         “To abort genetically imperfect fetuses,” or whatever, and it’s all the wrong inquiry.  We do not ask you, when you go in to get a medical procedure, “hey, why are you getting this medical procedure?”  Right?  That’s not anyone’s business, that’s not a legislator’s business.

Thomas:         By the way, unless you’re someone trying to get their tubes tied and then they do ask you a whole bunch of questions, but that’s because it’s in the same kind of area.

Andrew:         Fair.  Anyway, I’m glad to see that.  Then there’s a catchall provision at the end that basically requires you to consider a bunch of factors, which is are the limitations based on good faith medical judgment?  Are they reasonably likely to delay some patients in accessing services?  Are they likely to result in a decrease in the availability of abortion services in a given state or geographic region? 

Then to rebut those, requires the state legislature to bear the burden of proving, by clear and convincing evidence, by 75%, not just greater than normal, and certainly not by having an articulable reason, the sort of fogged mirror, “do you have a state interest in this?”  No, you have to prove by clear and convincing evidence that the limitation, A, significantly advances the health and safety of abortion services and B, that it cannot be advanced by a less restrictive measure.  It supersedes RFRA, and that’s specifically written into it.

Thomas:         Ahh!

Andrew:         They’ve taken that one into account, and preempts all state laws to the contrary.  Really, really great framework.  We’re talking about it right now because, again, this is a long-term battle.  This is certainly not gonna pass in this Congress, but if it’s the kind of thing that you think should pass you might ask, well why isn’t it gonna pass in this Congress?

Thomas:         Yeah, okay.  Well, what I was gonna ask, actually, is what in the world?  I would have assumed – I guess I just assumed this whole time that the Court would be able to stop this or in some ways this wouldn’t be allowed and that’s why it hasn’t happened yet.  Why hasn’t this ever happened?  I mean, I know there’s the whole conversation of, like, did we have 60 Senators in 2009 and for how long and all that?  But at some point couldn’t we have passed this?

Andrew:         We absolutely could have passed this law in 2009.

Thomas:         [Sighs]

Andrew:         And the failure to do so back when legislation got passed under Bill Clinton, I think, is directly attributable to the Supreme Court’s ’93 decision in Planned Parenthood v. Casey.  I think the Supreme Court came out, they restricted, they opened the door for a bunch of new legislation, but I think people across the spectrum – and in particular the sort of centrist approach that Bill Clinton tried to pioneer – said oh okay, look, we’re in a position where the Supreme Court isn’t gonna go about changing the rules on us even if it gets packed with conservatives, so, you know, we don’t feel a compelling need to do that.

Thomas:         Yeah.

Andrew:         But we’ve seen this slow-moving train wreck for two decades.  The 2009 criticism is apt.

Thomas:         Yeah.

Andrew:         And I don’t have a good answer for you.

Thomas:         Wow.  Jeez.

Andrew:         Can tell you what will not help-

Thomas:         – make it happen.

Andrew:         Yeah, what will not help is staying home because there’s a filibuster-

Thomas:         Yeah.

Andrew:         -and thus allowing the Republicans to retake the Senate in 2022.  That won’t help.

Thomas:         No, not at all.  Is this Supreme Court proof, though?  Is there anything the Supreme Court could do to just ruin this even if we passed it?

Andrew:         Again, the only thing – remember, and I do owe folks a deep dive on Griswold v. Connecticut.

Thomas:         Hmm.

Andrew:         That is on the whiteboard, it’s high on the whiteboard, I promise you that is coming soon.  Remember that those cases stand for the idea that there is – that Griswold, Roe, and Casey stand for the idea that there is, inherent in the principles of ordered liberty, inherent in the Bill of Rights and in particular the 5th Amendment, a basic right to make intimate, personal decisions about life, marriage, reproduction, whether to have children, and that that is a constitutional right and so can only be abridged in particular circumstances.  We’ve been fighting what are those circumstances?  If that gets overturned than that means that states and the federal government can now, much more freely, regulate reproductive services; when and where you can have children, when and where you can use contraception.  It makes those laws possible, and about a dozen states have – we’ve talked about this on the show – have passed laws with springing provisions that will say oh yeah, in the event that the Supreme Court overturns Roe v. Wade we’re banning abortion in this state, or we’re banning abortion after 3 weeks or 6 weeks or-

Thomas:         Which is effectively-

Andrew:         Which is the functional equivalent of banning abortion, as we have long pointed out.  That’s what’s set to happen, is those things will spring into case, and so then the question is how do you stop oppressive state laws?  You can stop oppressive state laws with a federal law like this.  What could the Supreme Court do to mess with this?  The first is they could so drastically curtail the federal government’s right to make laws governing interstate commerce.

Thomas:         Hmm.

Andrew:         To preempt local state laws as to say this bill is not valid as a commerce clause bill.  I think that would likely be untenable for a lot of reasons.  [Laughs] Because any view that excludes abortion services as not being interstate commerce is really going to make it impossible for the federal government to do just about anything.

Thomas:         Yeah.

Andrew:         Again-

Thomas:         And conservatives may take that gambit.

Andrew:         A, conservatives may take that; and B, a hyper-activist Supreme Court might say okay, we’re just making a Bush v. Gore for abortion here-

Thomas:         Yup.

Andrew:         -don’t cite this in any other-

Thomas:         That’s always what I think is gonna happen.  [Laughs]

Andrew:         I pushed back a lot more on those kinds of questions in 2016.

Thomas:         Yeah, yeah.

Andrew:         Until we had four years of Trump appointees who, you know, are pretty much saying the quiet part out loud.

Thomas:         Yeah.

Andrew:         Yeah, look, the Supreme Court’s gonna be a problem for the foreseeable future until we can do something about it, but I will tell you, we’ve talked about easier and harder paths, this is a harder path.

Thomas:         Hmm.

Andrew:         The other thing they could do is, dear god, they could recognize-

Thomas:         Yeah.

Andrew:         -fetuses as 14th Amendment persons.  I think there’s only two votes for that on this Supreme Court?  But the idea that there’s two votes for that among lawyers admitted to the Bar is terrifying enough?

Thomas:         [Laughs]

Andrew:         Let alone on the Supreme Court of the United States.  So, yeah, that’s super bad.

Thomas:         I mean, we have but one option always, which is go elect more Democrats. 

Andrew:         Mm-hmm.

Thomas:         It really is.  It always comes down to that.  We face an unfair system, but that’s the only choice we have is to try to overcome that unfair system and then change it so it’s not unfair anymore.

Andrew:         Couldn’t have said it better myself.

Garland DOJ Coverage Is Completely Wrong – E. Jean Carroll

[21:06.4] [Segment Intro]

Thomas:         Okay, in our main segment Andrew, I am very, very curious to know, I’ve tweeted out a couple of these stories because I’m wondering, has Merrick Garland F’d us?

Andrew:         Yeah.

Thomas:         Is this the kind of thing – this show, the reason I listen, I’m an avid listener is because often we break down stuff that isn’t reported well, there’s more to it, but also just prima facia, you know, Merrick Garland is a pretty centrist guy, and that’s why Obama picked him.  It struck me as not impossible that Merrick Garland could be, perhaps, taking too center or right an approach, because we have two stories.  So, we have E. Jean Carroll and we have this anti-LGBTQ legislation thing.  Where do you want to start?  E. Jean Carroll?

Andrew:         Yeah, let’s start with E. Jean Carroll.

Thomas:         Okay, so, to the layperson it looks like the Justice Department is, for reasons that don’t seem to be like absolute, it seems like this could be at their discretion possibly, they’re kinda taking on the Trump line that the Department of Justice should defend Trump in this suit against E. Jean Carroll, isn’t that right?

Andrew:         That’s correct, but I’m going to tell you why – and I will tell you in both of these stories I went through three distinct phases.  The first phase was reading the newspaper account or – [Laughs] it’s not holding an actual newspaper, I’m not that old.

Thomas:         [Laughs]

Andrew:         But was reading the online news account at which point I was like “well that seems bad.”  Then the second was bringing up the actual documents and just taking the first look at it and going oh, okay, well alright maybe this seems like it’s not quite as bad as it looks but, uh, I wish they’d had the discretion to go the other way.  And in both cases I moved to the third phase which is no, this is actually what I would expect-

Thomas:         Hmm.

Andrew:         -a fairly progressive Justice Department to do. 

Thomas:         Wow, okay.  [Laughs]

Andrew:         Yeah! 

Thomas:         You’re gonna have to make that case to a lot of us, I think.

Andrew:         I thought I might.  So, let’s talk about E. Jean Carroll first.  Now, we’ve discussed this case three times on the show already; episode 420 we broke down the lawsuit.

Thomas:         Heh heh heh!  Oh, sorry.

Andrew:         [Laughs]

Thomas:         [Laughs]

Andrew:         Episode 422 we talked about one of the principal cases which is gonna come back up in this discussion that was the Ballenger decision, that was the member of Congress who, when asked like “hey, man, you and your wife aren’t living together and you’re campaigning on a family values thing,” decided to go off on this long screed about how-

Thomas:         Ohh!

Andrew:         Yeah, right?  “Our DC house is across from the Counsel of American Islamic Relations, and they’re the fundraising arm for Hezbollah.”

Thomas:         Oh yeah!

Andrew:         Which, by the way, they’re not.

Thomas:         Oh man.

Andrew:         That’s totally slander.  And so CAIR sued that dude, Ballenger, and the DC Circuit said yeah, giving an interview in which you’re being asked about a political question when you’re a member of Congress is within the scope of your duties, so we talked about how that was likely to be decisive in the E. Jean Carroll case. 

Then 442 the actual order was entered, and the order went in a way that kind of surprised me.  It was Judge Kaplan, Judge Lewis A. Kaplan in the Southern District of New York ruled that the Westfall Act did not apply to the President of the United States and ordered the DOJ lawyers struck from the case.

Let’s break that down just a tiny bit, you can go back and listen to 442 for a full breakdown, but basically there was a 1988 Supreme Court case called Westfall v. Erwin which involved the question of when you can sue a government employee for doing something that hurts you; when you can sue them in their individual capacity.  In that Westfall case the Supreme Court said, “you know, being a government employee doesn’t give you absolute immunity for anything you do on the job. You can sue them for conduct (quote) ‘not within the outer parameter of an official’s duties’” (end of quote) and that is (quote) “discretionary in nature.”  And in that case, it was like it seemed like this member of the civil service was being exceptionally discriminatory and aggressive in how he was treating various employees for applying for promotions and the like, and the idea was that doesn’t seem to be the government, it seems to be this asshole’s fault, so sue him.  However, much sense that decision made at the Supreme Court it immediately led to the bipartisan passage [Laughs] of what has been called the Westfall Act, which says essentially that federal employees have near absolute immunity for acts committed during the course of their employment.

Thomas:         Hmm.

Andrew:         That set up this procedure that says when you sue a federal employee for acts committed during their employment they can A, notify the Attorney General and then B, the Attorney General makes a determination as to whether those acts are within the scope of your employment or not, and if the Attorney General says that they are, they can then move the case to federal court and substitute the United States as a party for that federal employee.  So, they come in, take over, and defend the case and the original employee is out and that is left to the absolute discretion of the Attorney General.  That determination is subject to judicial review, but the Attorney General’s determination is considered prima facia evidence.

So, then the question before the Court was kind of a two-step question, was number one, does that act, does the Westfall Act, which was meant to protect people who work in the executive branch, does that apply to the head of the executive branch, the President of the United States?  And if so, does giving an interview denying raping somebody count as “in the performance of your duties?”  The important thing to remember here for this case is the Ballenger decision we just described.  If the answer to the first question is yes, that the President is covered by the Westfall Act-

Thomas:         Hmm.

Andrew:         -then it seems like the answer to that second question is also, however reprehensible Donald Trump is-

Thomas:         Yeah.

Andrew:         -is also gonna be yes.  It is yeah, sorry, case law makes it really clear that giving press interviews is a part of the job of being a politician.

Thomas:         Yeah.

Andrew:         Particularly in elected office, and even if they’re saying horrible stuff in those interviews seems like it’s at least arguable that the Attorney General then has the right to come in and go okay, we’re gonna step in, we’re gonna defend this member of Congress, we’re gonna defend the President.

Thomas:         Yeah, ‘cuz imagine – I know it’s anything with Trump is completely unsympathetic – but imagine it’s a President we like.  Just the salaciousness of the question itself I don’t think should make it such that it’s not the President doing their job, because imagine the crap that Biden gets asked by Fox News and a Democratic President will get asked in the coming years by the Q Anon, official Q Anon Party correspondent, that kind of thing.

Andrew:         Yup.

Thomas:         It might be a lot of salacious stuff, and answering it, I think, would still be part of the President’s job.

Andrew:         I think that’s right.  So, kind of shockingly, the order issued by Judge Kaplan said yeah, but the Westfall Act doesn’t apply to the President.  Then Trump obviously immediately appealed that order to the 2nd Circuit, this is an authorized interlocutory appeal, and the first draft of the brief on appeal was filed by William Barr’s Department of Justice, because it was filed on January 15th, 2021.  Five days before Biden was sworn in.  So, Trump is still in office, Barr is still Attorney General, and it is signed off on by Jennifer Dicky, Acting Attorney General, Sopan Joshi, the Senior Counsel to the Assistant Attorney General, and then three-line DOJ attorneys: Mark Freemen, Mark Stern, Josh Salzman. 

E. Jean Carroll files her opposition on April 16th, 2021, and so the question that people were looking for was okay, this is now the first foray into this lawsuit by Merrick Garland’s DOJ.  Are they gonna endorse the same position-

Thomas:         Mm-hmm.

Andrew:         -that Trump took in January?  The first thing I need to tell you is this brief was written by the exact same three lawyers.  [Laughs] They’re still at DOJ.

Thomas:         Yeah.

Andrew:         They’re just career lawyers.  On the one hand, even before I get into the analysis, the most this could tell you is the guys who wrote a brief back in January wrote a reply brief reiterating those positions in June.  Not too surprising.

Thomas:         Mm-hmm.

Andrew:         Freeman, Stern, Salzman, all still on the briefs, all still at DOJ; and as we’ve talked about here, I’ve talked about on Cleanup on Aisle 45, there has been a ton of house cleaning over at the DOJ.  I would say if somebody is still around that presumptively they’re probably just a good institutional soldier.  Let’s take a look at the arguments that they do make.  E. Jean Carroll’s arguments in her brief were, number one, again the Federal Tort Claims Act does not cover the President at all; and then two, if it does apply defaming a rape victim isn’t within the scope of your employment.  The DOJ’s response is almost entirely focused on that first question, to say yes, the Federal Tort Claims Act does cover the President-

Thomas:         Ahh.  Which will probably help Biden in some way.

Andrew:         It will absolutely help Biden-

Thomas:         Okay.

Andrew:         -for precisely the reasons that you just described.

Thomas:         Yeah.

Andrew:         Then their argument, and this is super narrow.  They don’t even say whether the particular action, what they say is to figure out whether something is within the scope of your employment you don’t look to the act itself; you look to the type of action.

Thomas:         That’s kind of what I was saying.

Andrew:         Yeah, it’s exactly what you were saying.

Thomas:         Okay.

Andrew:         Right.  Then again, there’s the reference to the Ballenger case, we’ve already talked about that at some length.  Look, I think it is really – I think E. Jean Carroll’s lawyers know that, we’ve talked about Roberta Kaplan, lead counsel, she is really, really good at what she does.  I think she knows that if you get to the scope arguments you probably lose.  The question is, should we be surprised and/or should we want the Department of Justice to litigate that the President is covered by the Federal Tort Claims Act?

Thomas:         Yeah.

Andrew:         And I think the answer to that is, to both questions, is yes.

Thomas:         Yeah.

Andrew:         I think Bernie Sanders’ DOJ-

Thomas:         Yeah.

Andrew:         Liz Warren’s DOJ-

Thomas:         Well, just- forget that, just imagine now, you know?  Where it’s like Fox News questioner: “Joe Biden, where did Hunter Biden bury the children that he murdered?”  And then Joe Biden’s like “ah, it’s a bunch of malarky,” blah blah blah, calls him something all of a sudden, [Laughing] you know-

Andrew:         Yeah.

Thomas:         That person’s suing Joe Biden for defamation.  We would have to say oh, that’s not part of Joe Biden’s job as President, but I dunno, it kinda is.

Andrew:         I think that’s exactly right.  Again, if you ever want to have a President, you do a good job of pointing out the difference between Donald Trump and Barrack Obama, who had reasonably, I mean was better off than you and I-

Thomas:         Barrack Obama, where’s the tan suit buried!

Andrew:         Yeah.

Thomas:         Who killed the tan suit!

Andrew:         Is not the kind of person – with Trump it’s really easy to just say yeah, well, let Trump hire his own damn lawyers-

Thomas:         Yeah.

Andrew:         -and defend his own damn lawsuits.  You could imagine, particularly a President Bernie Sanders, who just now at age 105 is worth $1 million dollars?

Thomas:         [Laughing] Yeah.

Andrew:         I remember when those stories came out and were like “Bernie’s a millionaire,” and it’s like-

Thomas:         You would hope so.

Andrew:         Well, God I would hope so!  [Laughs]

Thomas:         Yeah.

Andrew:         Right, you could sue Bernie Sanders into oblivion.  That’s a thing that you could actually do if you were sufficiently well funded, and if you do not want to have future Presidents at risk of being sued into oblivion or, you know, our only future Presidents will be of the mega-billionaire capitalist class then you don’t care, but I do think you oughta care here.

Thomas:         Yeah.  The only thing I’m worried about is obviously Trump should be, I dunno, found guilty?  I don’t know what you say, I guess it’s a civil thing.  Found liable?

Andrew:         Yeah, liable.

Thomas:         Does this mean that the government’s gonna pick up the tab if E. Jean Carroll gets damages?  That’s what really doesn’t sit well with me.

Andrew:         It shouldn’t sit well with you, and the answer to that is yes.

Thomas:         Well, that sucks.

Andrew:         The reason is – yeah, it does.  I don’t disagree that that sucks as an outcome and I would say the remedy to that is let’s not elect Presidents who defame rape victims when they’re being questioned.  I agree with you, I wish there was a way to tailor the Federal Tort Claims Act such that – and look, you might have a set of Presidential amendments.

Thomas:         Hmm.

Andrew:         We know Adam Schiff has been working on a series of reforms based on things he learned that Trump did.  We know that the House Judiciary Committee has Trump’s taxes now, so at some point we are going to see a set of Nixon-era reforms that will lock the barn door now that Trump has escaped.

Thomas:         [Laughs]

Andrew:         And narrowly prevent us from ever having a criminally insane gameshow host-

Thomas:         We need to get that passed for 2024, or 2025-

Andrew:         Yeah.

Thomas:         -when Trump starts his second term.

Andrew:         [Sighs] Thanks, Thomas.

Thomas:         It will be nice to have that-

Andrew:         [Laughs]

Thomas:         Hey, well, oh, you’re mad at me, Andrew?!  Well then let’s all vote, okay?

Andrew:         Alright.  Done, done.

Thomas:         Let’s all stay engaged and make it not happen!  Make me wrong.

Andrew:         I will prove you wrong.

Thomas:         So, you’ve made a very compelling case on that one.  I think that makes a lot of sense.  I don’t like it.  [Laughs] It sucks that we would have to pay for Trump’s defamation, but I get it, actually.  The principle kind of does make sense.

[35:21.8] [Commercials]

Garland DOJ Coverage is Completely Wrong – Defending Religious Discrimination


Thomas:         What about this next case that just looked incredibly not good?  This article written by Michelle Boorstein of the Washington Post that was getting shared around certainly didn’t look good to me.  Looked a little awful.

Andrew:         Yeah.

Thomas:         It said – let me summarize from the article as it was published and as I shared it.  The Justice Department said it can vigorously defend a religious exemption from federal civil rights law that allows federally funded religious schools to discriminate against LGBTQ students, a move that surprised some LGBTQ advocates who said the wording went further than just an obligation to defend an existing law.  It goes on, but let’s get started.  What about that one?

Andrew:         Yeah.  And I will point out, we can link it in the show notes.  The Washington Post issued a correction and updated that article, removed some of the most inflammatory rhetoric that you probably saw when it first got shared around.  Look, again, I want to say I went through all three steps on this.  You sent that to me and said “Andrew, this looks bad,” and I said yeah, that does look bad.  I read the article and agreed and was outraged, and then I dug into what actually happened in this lawsuit, and again I’m going to tell you it follows the same pattern.

Thomas:         Wow.

Andrew:         In this case even more strongly.

Thomas:         Wow!

Andrew:         That the DOJ affirmatively did something that is pro-LGBTQ and inclusive, upon which they are likely to lose, and they did that to benefit gay and trans Americans.

Thomas:         Woah.

Andrew:         Now, I realize that’s a hard sale.

Thomas:         That’s diametrically opposite of what this article led a bunch of people to believe.

Andrew:         It is.  I know that’s gonna be a hard sale, so let me walk you through.

Thomas:         Okay.

Andrew:         And by the way, all of this was filed in 2021.  Unlike the E. Jean Carroll case, this is not a legacy Trump thing.

Thomas:         Mm-hmm.

Andrew:         It begins with a lawsuit, a Title IX case filed on March 29th, 2021 by the Religious Exemption Accountability Project.  That’s not somebody I know, it’s a two-person law firm and it is Paul Southwick in Portland, Oregon and what looks like his associate, Rachel Livingston.  Having a pretty good idea what a two-person law firm looks like-

Thomas:         [Laughs]

Andrew:         Not someone who has partnered with our friends and associates at FFRF or American Atheists or whatever.  But, again, I have no doubts, I have no doubts if we met Paul Southwick we would be 100% aligned on the kinds of stuff that we want to do.  I’m sure we would find them to be good people of goodwill trying to police religious exemptions that amount to discrimination against LGBTQ folks.  I 100% am onboard with what they’re doing.

They filed a Title IX case.  That lawsuit was on behalf of a bunch of named plaintiffs, about twenty, who are attending Christian colleges and universities.  It describes, in a complaint that is – and I think Paul would say that this is fair – intended to be quoted in the press.  It’s an 88-page complaint, it has 600 and some paragraphs to it and in the fact section it details horrible things that happened to these folks. For example, Megan Steffen – and again these people are, this is a public document so I’m not outing anybody. 

This is page 51 starting at paragraph 428.  I just picked this one at random, really.  She attends Moody Bible Institute.  She says, (quote) “I found myself in an environment that actively hated me and wanted me gone.  I felt like I was in survival mode every day.”

Thomas:         Hmm.

Andrew:         “I did not consider Moody Bible Institute’s stance towards LGBTQ+ students at the time I decided to attend as I was not out, even to myself, yet.”  Her sister went there, it was an alcohol-free campus that would support her efforts at sobriety and it was a Christian school, and she identifies as Christian as well as lesbian.

Thomas:         Mm-hmm.

Andrew:         Moody’s human sexuality statement states, (quote) “We conclude that non-marital sex, homosexual sex, same-sex relationships, and transgender expressions are deviations from God’s standard, misrepresenting the nature of God Himself.”  Megan says her early years at Moody were good.  However, when she began coming out to close friends and family, her peers at Moody primarily responded negatively.  She began having negative reactions to her sexual identity after she posted pro-LGBTQ+ content on social media. 

Fellow students began asking Megan to defend her sexuality and told her that her lifestyle was wrong and sinful.  She received an anonymous mail telling her she should be ashamed of herself for being a lesbian.  She would occasionally get reported to MBI officials for her social media.  Megan then says, (quote) “Attending MBI, which had felt safe and supportive before I came out, became a place of fear that had turned against me.”  She landed on the school administration’s radar after they told her they had problems with her attending the Women’s March.  She was forced to attend meetings with the school administrator at least ten times where she would have to discuss social media posts, relationship status, and her sexual identity.

She got an official warning from the school due to a social media post where she said she was a lesbian, and as a result, had to agree to no longer post on social media until she left school.  She maintained – she complied with that.  Then they threatened her with not allowing her to graduate.  Then she graduated.  Due to her experience, Megan’s depression and anxiety became very severe.  She had panic attacks, couldn’t get out of bed, had insomnia, dealt with suicidal thoughts.

Those are the kinds of stories that are told in this complaint, which I think our listeners would know to which we are heartbroken over those.

Thomas:         Yeah, I don’t – for the record I don’t believe just because you have a religion you should be able to do this to people. 

Andrew:         Correct. 

Thomas:         I don’t believe that is right.

Andrew:         And here’s what allows that to happen.  It is a law; it is Title IX; 20 U.S.C. § 1689.  The part of the law that would make this illegal if this were at USC, for example, is section (a), which says “No person in the United States shall, on the basis of sex,” and as we know, post-Bostock v. Clayton County, that means and includes sexual orientation and gender identity, “be excluded from participation in, be denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Having a special disciplinary process that applies to social media posts based on your sexual orientation?  Very clearly seems to violate that.  But section (a) says, “except that,” and except that has nine different statutory exemptions.  Now, some of those are for things like beauty pageants and The American Legion and Boys States and father-son/mother-daughter activities; because remember, again, this goes all the way down to elementary school.

Thomas:         Mm-hmm.

Andrew:         [Laughing] You know.  You understand-

Thomas:         You want to start the discrimination early.

Andrew:         Yeah.  I’m not saying that I’m a big fan of, like, you know, father-son hunting days in school, I’m just saying that it’s there, it’s in the law.  Subsection (a)(3) says it specifically exempts from coverage by the law “educational institutions of religious organizations with contrary religious tenets.”  “This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”  The first question I have for you, Thomas-

Thomas:         Hmm.

Andrew:         -is, do you think that provision of the law is unconstitutional?  Obviously, we both agree it’s a terrible idea, I would never vote for it, I would vote to repeal it.  I would have legislation to repeal that starting now.  The question is, is it illegal to have that carve out?

Thomas:         Okay, well, I’m not the lawyer.  Obviously since it’s happened, I feel like the answer is gonna be that is constitutional, probably, but I could also see is there an equal protection argument that it’s not constitutional potentially?  If we had a progressive Court full of Thomas’s – not Clarence Thomas, full of mes or yous, would they say it’s constitutional or not?

Andrew:         I think that’s exactly the right way to conceptualize this issue.  The argument that it’s constitutional is, yeah, prior to 1972 Title IX didn’t apply to anybody.  That’s when it got passed.

Thomas:         Hmm.

Andrew:         You know, if it’s possible not to have the law at all, if it would be possible to just repeal it in its entirety then there’s sort of a definition that-

Thomas:         That doesn’t strike me as a good argument, because wouldn’t that apply to any argument that unfairly targets a group of people?

Andrew:         Well, that’s what I was gonna say.

Thomas:         Okay, yeah.

Andrew:         Unless you could show that specifically targeting religious schools offends either equal protection or offends the 1st Amendment then you would have to say something like yeah, well, you don’t have to cover everybody but it would cover here.  That would be the argument, and I think there is a very, very aggressive constitutional argument rooted in, exactly you said, in the Equal Protection Clause that would say, essentially, the provisions of Title IX as applied to private schools apply by virtue of the Equal Protection Clause of the Constitution, so Title IX is kind of superfluous.  We have an equal right to access educational spaces, and that can’t be discriminated against on the basis of where you go to school.  I will tell you, that is an incredibly ambitious argument.

Thomas:         Yeah.

Andrew:         Yeah.

Thomas:         It’s the one I would make if I were there, but yeah, I get it.  Okay.

Andrew:         It is not the majority – it’s the first argument, but fully half of this lawsuit, half of the lawsuit says that the exemption is unconstitutional, the other half says that the way that it’s implemented is problematic.

Thomas:         Hmm.

Andrew:         And that it violates the Administrative Procedure Act.  It says yeah, we agree Title IX is fine, the exemption is fine, it’s constitutional but it should be implemented in a particular way.  That’s the lawsuit that got filed, and it got filed against the Department of Education.  I need to say this in the interest of full disclosure, because this is the kind of – it is the exact same issue for which we have made fun of Sidney Powell. 

Thomas:         Hmm.

Andrew:         It is this, the original lawsuit was filed in March.  The amended lawsuit was filed a couple of days ago.  There’s nothing wrong with that, you have one free right to amend in federal court for any reason, even if you’ve just sort of screwed up, but one of the things for which the first complaint was called out for was alleging § 1983 claims against federal officials, and § 1983 only applies to State actors.  It’s the kind of thing you ought to know if you’re filing a lawsuit.

Thomas:         Oh.

Andrew:         It’s the kind of thing we have made fun of those who filed in, you know, kraken related lawsuits.  I feel the need to disclose that, this initial lawsuit-

Thomas:         Since we’re low on time I’m bighting my tongue trying not to make fun of your kraken pronunciation, but it’s okay.

Andrew:         [Laughs]

Thomas:         Release the kray-ken! 

Andrew:         I didn’t see the movie!  So anyway.

Thomas:         I don’t know what movie it is.  Okay, anyway, we’re done!  We’re not gonna talk about it, Andrew!  We’re not gonna do this here.

Andrew:         Alright, fair enough, fair enough.

Thomas:         [Laughs]

Andrew:         I read the Iliad when I was really, really young and it’s always been-

Thomas:         I said!  We’re not gonna!  [Laughs]

Andrew:         Okay.  So, now the question is, now that you have a lawsuit that says Department of Education, we think this law is either improperly administered or unconstitutional; as a President overseeing the Department of Justice how do you respond to that kind of lawsuit?  The answer is that the President has a constitutional duty to defend the law.  It’s written into the constitution, it’s Article II, section 1, clause 8.  “The President must faithfully uphold and execute the laws of the United States of America.”  Even if you think the law is not a good idea.

There’s a little bit of an asterisk around this, and that asterisk is if you think a law is clearly unconstitutional then there’s kind of a grey area.  There is an OLC opinion from 1980 that says “even if you think it’s unconstitutional you should probably defend the constitutionality of a statute in court anyway if you’re the President, even if you’re secretly rooting for your side to lose.” 

There is an approach that deviates from that a little bit, and it’s what Barrack Obama did with respect to the Defense of Marriage Act in 2011.  That was they decided that they would continue to enforce the law so long as it was declared constitutional, but they would not defend its constitutionality in Court.

Thomas:         Hmm.

Andrew:         That’s why the Obama administration does not appear on the opposite side of the caption on the Obergefell decision.

Thomas:         Oh.

Andrew:         That standard that the Obama administration articulated, and again, think of how weird that is to say we’re going to enforce this law, but if you ask us if we think it’s constitutional our answer is no.  That led to another OLJ memo which said if the President believes that a law is clearly unconstitutional, he need not defend it.

I would say under the Obama approach that would not apply.  You cannot think that the exemption to Title IX is clearly unconstitutional.  You can think it’s a bad idea, you can think I would like – but you can’t think that it’s clearly unconstitutional, the law does not support that determination. 

Now, there is a group of legal scholars who believe that if the President thinks the law is unconstitutional for any reason, clearly, unclearly, whatever, he doesn’t have to defend it.

Thomas:         Okay. 

Andrew:         I will tell you, almost everybody who ascribes to that theory of belief is an arch-conservative judicial theorist.

Thomas:         Ah.

Andrew:         Proponent of the unitary executive theory.  They are people like Frank Easterbrook, and again, Easterbrook’s a super interesting study, but nobody would argue – he was a Reagan-appointee.  Nobody would argue that he’s not super conservative.

Thomas:         Ah.  So, is this a principle that allows Presidents to do really bad things, I guess?

Andrew:         To just not defend any law that they don’t think is constitutional for any reason.

Thomas:         Yeah.

Andrew:         Gary Lawson, two-time Scalia clerk, has written an article about it.  John Yoo, that John Yoo-

Thomas:         Oh god.

Andrew:         -is in favor of, yeah, yeah, yeah, duty to defend, that’s nonsense.  You could line up, you could absolutely say a President shouldn’t defend a law that he thinks is unconstitutional for any reason, whether he thinks that courts are likely to rule that way or not.  You could take that position, you are aligning yourself with John Yoo.  Yes, I realize I’m slandering your position if you’re doing that, but I’m doing that – the non-slanderous, non-guilt by association, is the reasoning immediately behind it is a reasoning that says we don’t want to articulate a principle and make an OLJ opinion that will get – an OLC opinion, Office of Legal Counsel opinion – that will be cited by the next monster who gets in and believes that, you know, insert horrible belief here.  We want the standard to be higher than just the President doesn’t like this law and therefore isn’t defending it.

I know we’re running short on time, but that’s kinda step one.  Do you believe the Biden administration is kind of stuck defending this statutory exception?  I think that they are.  Now the question is how do they handle being stuck with defending the statutory exemption?  And this is the part that was 100% missing from the Michelle Boorstein story, and it is absolutely critical to understand in the context.

What happened was, as I described it, this lawsuit was brought by the public interest group against the Department of Education.  They did not sue the individual schools themselves.

Thomas:         Hmm.

Andrew:         So, on May 13th the monsters at the Alliance Defending Freedom, on behalf of all of the religious schools, moved to intervene in the case.  Their argument was hey, if you’re gonna rule on this exemption that would obviously affect our clients who are the schools that operate by this exemption, so we’d like to be involved.  Again, I’ve described them as monsters.  That’s a good argument.  If a case is about to adjudicate my substantive rights and I’m not involved I would instantly hire a lawyer and be like um, let’s get in that case.  I care about what happens here.  The ADF said, “also, we’re kinda suspicious sketchy hinky that these commie-pinkos in the Biden administration are really gonna vigorously defend the exemption to Title IX.”

Thomas:         Ohh. 

Andrew:         “So you need us in there because we really care.  We are the bigots, we super-duper care about this.”

Thomas:         Okay. 

Andrew:         “Let us in.”

Thomas:         Interesting. 

Andrew:         What determines whether you let somebody in is Rule 24 of the Federal Rules of Civil Procedure.  It says if you’re a nonparty and you have an interest relating to the property or transaction that is the subject of the action, and are situated such that disposing of the action may as a practical matter impair or impede your ability to protect your interest – that clearly applies here.  They’ve got schools and disciplinary process and money invested and professors and everything.  This would 100% impede their interest.  You have the right, the court must let you intervene, unless (quote) “existing parties adequately represent that interest” (end of quote).  Now – the lightbulb went on for you a second ago, but I think now for everybody it’s gone on.

Thomas:         [Laughs]

Andrew:         What Biden’s DOJ did was file an opposition to the motion of the Alliance Defending Freedom to intervene in this case.

Thomas:         Right.

Andrew:         They said we do not want you in this case.  You were not sued.  We don’t want to hear from you, we don’t want your stupid arguments involved in this case at all, and by the way, the reason we think you can be kept out is because we’re in here defending-

Thomas:         Right.

Andrew:         -the constitutionality of Title IX.  We adequately represent your interests, that’s the part that got quoted.

Thomas:         Yup.

Andrew:         Even that, I want to tell you-

Thomas:         It makes sense.

Andrew:         -had a caveat.  Remember, the logic is look, your interest is in defending the exemption, we’re gonna do that, we’re gonna do it in open court, we adequately represent your interest, go home.  Even that (quote), this is page 8 of the Opposition of the Motion to Intervene: “To be sure, the Department of Education is conducting a comprehensive review of its regulations implementing Title IX pursuant to Executive Order 14,021, which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex.  See” (that EO).  “But neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter.  At present, the Proposed Intervenors can only speculate that we will back away from a full defense of the Religious Exemption and its challenged application and such speculation is too attenuated to constitute a ‘compelling showing’ overcoming the presumption that the Department of Justice, which is responsible for defending federal statutes in court, will adequately defend against the legal challenges the Religious Exemption and its application.” (End of quote).

I think I have persuaded you.  [Laughs]  

Thomas:         Yeah, no.  That’s a real eye-opener.

Andrew:         I know it took a lot, there.

Thomas:         Yeah, jeez.  Essentially, to summarize maybe, to put it into lay-Thomas’ terms, it’s like some bigot group was like “well, Biden administration, you’re not gonna defend our bigotry enough so we want in,” telling the court we want in so we can defend our bigotry super-duper well.  Then the Biden administration is like, well we don’t want that.  We don’t want to be out of the case and have this bigot group come in and defend it, so we’ll say for the sake of the court, yeah, we’re defending it.  We’re defending it adequately.  Is that kind of what’s happened?

Andrew:         That is exactly correct.

Thomas:         Jeez.  You know?  Truth faces a real uphill battle, Andrew.

Andrew:         [Sighs]

Thomas:         And I participated in this, you know?  I shared this out and I thought it was shocking, and I guess I trust the Washington Post too much.  This wasn’t a right-wing rag or something, or like a super lefty kind of rag that you might think would mislead.  This was the Washington Post, which the opinion section might be a garbage fire sometimes but I generally trust the coverage, but not in this case.

Andrew:         This is the mission statement for Opening Arguments, right?

Thomas:         Yeah.

Andrew:         Covering cases is hard.  Lots of parties have lots of interests out there, and sometimes their interest is more bringing attention than it is going 40 minutes of deep dive [Laughing] into the procedural history of how we got here.  This is a hard thing to understand.

Thomas:         Yeah.

Andrew:         And I get it.

Thomas:         Yeah.

Andrew:         I don’t blame anybody for getting it wrong, but I like to think that this is our niche of how we can help you get it right.

Thomas:         Well, I think we can hope that the Washington Post would do better, but you know?  It’s tough in this case.

Andrew:         Fair.

Thomas:         Yeah, I mean mea culpa for sharing this, by the way.  I’m gonna go back to my Twitter and retract that and emphasize that people should listen to this episode.  Sorry about that.  You know, I usually do the thing where I’m like I’m gonna wait to hear the Opening Arguments deep dive, but this seemed pretty bad and so I guess I made a mistake there.

Andrew:         On the information that was available to you I’m willing to let you off the hook, Thomas.

Thomas:         Alright, well I still want to correct it.  Thanks for the break down.  You know, you’ve convinced me and honestly, I wasn’t sure I was gonna be convinced.  [Laughs] I was like Merrick Garland might just be kind of a centrist that, you know, is not doing the things how I would want done as a progressive, but yeah, no.  That seems pretty clear cut, I get it now.  Wow.

Andrew:         Yeah, and let me add just a final as a prediction.  I think the court is likely to permit the ADF to intervene.

Thomas:         Hmm.

Andrew:         I think that they probably will, on balance, go yeah, well, this applies to the schools, we’ll let the schools themselves be a party.

Thomas:         Okay.

Andrew:         That’s where my gut says.  In other words, taking this swing in the first place was going out on a limb for the benefit of LGBTQ people.  They could have acquiesced. 

Thomas:         Hmm.

Andrew:         And they did not, and they said yeah, anything we can do to keep the monsters at the ADF from being in this case, we’re gonna do that.  The fact that this sort of no good deed goes unpunished is where we are.

Thomas:         Yeah, so hey, share this out when you see people like me, and again, I take some blame.  If you see another me out there yelling about Merrick Garland on these topics, please share this show with them.  Wow, I cannot believe how much of a difference the OA Andrew Torrez Signature Deep Dive makes here.  Please share this out, that’s vitally important that we don’t hate our own administration for reasons that we shouldn’t.

[1:01:59.5] [Patron Shout Outs]

T3BE Question

[1:04:05.2] [Segment Intro]

Thomas:         And now it’s time for Thomas Takes the Bar Exam, that’s T3BE, totally – you know, my brain took a vacation last week, Andrew.  We’ll forget about that, you know?  I gotta be like a quarterback, okay?  Gotta have a short memory, let’s do it.  I’m back, back on the saddle.

Andrew:         Alright! 

Thomas:         I have a little mini-saddle for the coin.

Andrew:         [Laughs]

Thomas:         It sits with me, a little mini one.  [Laughs]

Andrew:         Alright Thomas.  At a defendant’s trial for extortion-

Thomas:         Ooh!

Andrew:         – the prosecutor called a witness expecting her to testify that she had heard the defendant threaten a man with physical harm-

Thomas:         Okay.

Andrew:         – unless the man-made payments to the defendant – payoffs to the defendant.

Thomas:         Okay.

Andrew:         The witness denied ever having heard the defendant make such threats-

Thomas:         Oh.

Andrew:         – even though she had testified to that effect before the grand jury. The prosecutor now seeks to admit the witness’s grand jury testimony. 

Thomas:         [Sighs] Oh shoot.

Andrew:         How should the court rule with regard to the grand jury testimony? 

Thomas:         Oh man.  [Laughs] I know we’ve talked about this and I don’t think I’m gonna remember it.  Alright.

Andrew:         [Laughs] (A) Admit the testimony, because it contains a statement by a party-opponent.

Thomas:         [Exhales] Okay.

Andrew:         (B) Admit the testimony, both for impeachment and for substantive use, because the witness made the inconsistent statement under oath at a formal proceeding.

Thomas:         Mm?  Kay.

Andrew:         (C) Admit the testimony-

Thomas:         Ooh!

Andrew:         – under the former testimony exception to the hearsay rule.

Thomas:         Wow.

Andrew:         Or (D) Exclude the testimony for substantive use, because it is a testimonial statement.

Thomas:         Really unique question.  We’ve got three admits and one exclude.  Usually it’s like two yes, two no.

Andrew:         Yeah.

Thomas:         That’s uh, that’s interesting.  Odds wise you’d think it’s leaning toward admit the testimony.  Crap.  I can’t remember [Sighs] God, I know we’ve talked about this.  So, this is – grand jury testimony.  I know that you’ve said that you can use like the deposition.  I don’t know, but this sounds like more serious than a depo.  This sounds like she’s testified under oath before a grand jury before, essentially, which, you know that seems like a higher level of thing than deposition, but I don’t know, maybe I’m wrong.  I know you’ve said – didn’t you say – isn’t it true that you said this and that you can get away with that, but maybe that’s to impeach the witness and I think that’s maybe gonna be the issue here.  Can you do that to impeach the witness here, or can you get the substantive claims in the testimony there? 

Augh, that’s hard.  Okay.  Alright, this is another one I’m not gonna get.  [Laughs] Okay A, admit the testimony because it contains a statement by a party-opponent.  That sounds way too broad.  Like oh, there’s a statement by a party-opponent.  Reminder, this is the prosecution witness that’s just not saying what they thought the prosecution witness would say.  I don’t think it’s A, that just seems too broad to me.  Could be wrong, but I’m eliminating A.

B, admit the testimony, both for impeachment and for substantive use, because the witness made the inconsistent statement under oath at a formal proceeding.  I’m pretty convinced by that one.  I do think it’s under oath at a former proceeding.  Is that an exception to that?  I mean B is a real contender, there, I think at the very least but I don’t know.  I could also see it being the case that for the purposes of a trial you’d want to allow a witness to say something different than what they said maybe at the grand jury.  I think that would be something that the court would want to protect.  Maybe they were either wrong in the grand jury or they remembered something different or they changed their mind?  I mean, it’s a little weird but it sounds – it doesn’t seem right that you can just admit whatever they said at the grand jury because if that was the case what are they doing here?  Why are they even testifying?  So that leans me a little bit away from B, but I could be wrong.

C, admit the testimony under the former testimony exception to the hearsay rule.  C seems weird.  Former testimony exception to the hearsay rule.  I don’t remember that being one, but maybe.  Maybe that is one.  Ah, crap.

D, exclude the testimony for substantive use, because it is a testimonial statement.  That’s a weird answer but [Sighs] I’m kinda – okay, I think I’m between B and D, and I like that D – now that I look at it, D doesn’t say anything about impeachment, which makes sense because it’s your own witness, so like prosecutor – it would be weird to try to impeach your own witness, I guess?  That doesn’t really accomplish anything.  [Laughs] At best it’s just like you’ve brought on someone who didn’t say a thing you wanted and then you discredit them, that doesn’t really accomplish a lot.  In a weird way I kinda like D, that you can’t – you could hypothetically – I think D still allows for like bringing it up and saying “didn’t you say, isn’t it true that you said this for purposes of impeachment” but it doesn’t allow you to just say alright, you be quiet, I’m gonna now just put in the record what you said before, which I don’t think is how trials usually work.  I think we sit that person in the witness box for a reason.

Gosh, this is – ooh, this is a tough one.  I’m between B and D.  I think I’m gonna go with D.  You know?  It makes sense to me.  Yes, maybe it’s B that you’ve made the statement at a formal proceeding, that sounds plausible but I dunno.  Also, the grand jury thing is interesting because I thought those – you’re not even supposed to have access to that, or that’s not supposed to get out.  That should be confidential, usually.  I think I’m going with D. 

I’m going with D, let’s see if the coin agrees with me.  Again, I have to properly eliminate two answers for the coin to even count.  So, here’s the coin, flipping the coin now.  Tails!  The coin disagrees.  So, the coin is gonna go with B, the Thomas is going with D, final answer.

Andrew:         Alright!  If you wanna play along with Thomas and the coin, you know how to do that.  Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore.  We will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         And that’s our show!  Oh my gosh Andrew, I know I say this a lot but that really is a valuable deep dive.  Again, please share that with anybody who, like me, again, who is really disappointed at this coverage because that’s vital that we get that info out there.  So, thanks Andrew for doing great work, as always, of breaking down the real truth behind these things.

Andrew:         Hey, thank you for being pissed off about it [Laughing] and making me go figure it out!

Thomas:         [Laughs] Alright, we’ll see you Tuesday everybody.

[Show Outro]

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