Transcript of Opening Arguments Episode 314 – The Supreme Court and Trump’s Asylum Rules

Listen to the episode and read the show notes

Topics of Discussion:

Thomas:         Hello and welcome to Opening Arguments, this is episode 314, it’s our pie episode, I guess.

Andrew:         Yeah!

Thomas:         Andrew, on the fly change the entire episode now that I just said this to pie and math related law stories.  Go!

Andrew:         [Laughs]  Alright, well we will do nothing but math related law stories this entire episode.

Thomas:         [Laughs]  Math law!

Andrew:         Did I tell you when Alex was in middle school-

Thomas:         He probably memorized all of pie and furthermore he found the last digit of pie, is that what your son-

Andrew:         [Laughs]  What he did was memorize 314 digits of pie.

Thomas:         Ah.

Andrew:         And then did it at a school talent show, he was in like 6th Grade or something like that.  It was pretty cool.

Thomas:         I remember when I was in a math class in 8th Grade the digits of pie were on the wall and because I couldn’t pay attention in class I inadvertently memorized 3.1415926539789 and then that’s it.  That’s all I got.  But that was just off the top of my head from the year 1999!

Andrew:         That’s pretty good!  From, yeah.

Thomas:         So someone check me.

Andrew:         From 50 years ago, not bad!

Thomas:         Yeah.  Alright, anyway, all that is definitely what we planned to talk about! [Laughs]  

Andrew:         [Laughs]  


Thomas:         But in addition, how are ya doin’ Andrew Torrez, esquire?

Andrew:         I am doing fantastic, Thomas, I am super excited!  You know why?

Thomas:         I, no [Sarcastically Incredulous] Why? Here, I’ll play the – I dunno, why are you so excited Andrew Torrez?

Andrew:         I think I lack the words to explain it so, why don’t I let you take it over?

Thomas:         Okay, do you want me to help?  Could it be, here, I’ll take a stab at it! 

Andrew:         Okay.

L.A. Live Show

Thomas:         Are you so excited because the tickets are out, right now, to our patrons (and very soon thereafter will be everybody) for the L.A. live show!  [Sirens]  Is that it?

Andrew:         That’s it.

Thomas:         I hope Brian put in some horns and alarms!

Andrew:         [Laughs]  

Thomas:         That’s October 12th, as we already told you to reserve that weekend, and hopefully you guessed the right city. [Laughs]  

Andrew:         [Laughs]  

Thomas:         Flight to that city.  But we have to tell people about this, this is gonna be so much fun.  The tickets are out, we’ll release them to everybody very soon so keep an eye out, but folks, ha ha, HA! 

Okay.  Platinum attendees.  I am so excited for this I can’t even believe this is real.  We are going to do Andrew Cooks For Us as a platinum attendee special!  I cannot wait, Andrew is going to cook a delicious, a marvelous, multi-course meal, and of course with, you know, wine pairing and alcohol pairing and all that stuff as well, it’s gonna be so much fun, it’s gonna be delicious.  Andrew, I think you’ve worked out your menu already, haven’t you?

Andrew:         Yeah, I have!  I am really, really excited about it.  Lots of – multiple courses, lots of fun  things, if you followed any of my food posts online you know that I love to cook.

Thomas:         Mm-hmm.

Andrew:         And I love sharing that with folks and this is, it’s the best way I can think of to kind of hang out and share the other thing that is really, really important to me alongside teaching people about the law which is obviously one of my major passions, so is like hanging out and talking about food and drink and I’m really excited about it.

Thomas:         It’s gonna be so good you’ll wonder why he even bothers with the law stuff.

Andrew:         [Laughs]  

Thomas:         You really will, I can’t wait. 

Andrew:         Thanks, I think!  All my clients are like, oh yeah, why do I use Andrew for legal stuff?  Like come on!

Thomas:         [Laughs]  Yeah I just came here so you’d cook me some food, I don’t even have a business.  Yeah, write me a contract and cook me food.  So that’s gonna be a lot of fun!  Now of course that’s platinum attendees. 

VIP we’ve got the usual, you know, the swag bag for platinum, we’ve got the VIP, there’s gonna be a hangout afterward, that was a ton of fun in New York and I’m sure it’ll be just as fun in L.A. and plenty of general admission as well, of course.  Can’t wait!  That’s, like I said, October 12th at the Hudson Theaters, it’s called, and 7-9pm?  Any other details I need, Andrew?

Andrew:         No.  Downtown Los Angeles, Santa Monica Boulevard, the Hudson Theater.  I think we’ll probably have the link in the show notes in, at minimum, Tuesday’s episode, you’ll be able to get it on EventBrite, just go in, search Opening Arguments Los Angeles and we’d love to see you there!

Thomas:         I can’t wait, it’s gonna be so much fun.  Okay, that said, I think we’ve got other announcements.

Andrew:         Yeah!

Thomas:         So, yeah.

Serious Inquiries Only – Democratic Debate Coverage

Andrew:         So we are recording this before the third Democratic debate but it will be released after the third Democratic debate so Thomas are you doin’ anything special about the Democratic debate?

Thomas:         Funny you should ask, I am.  I just wanted to say a couple things about old Serious Inquiries Only, my other show, SIO.  As I mentioned before I’ve got Jamie Lombardi on with me lately, she’s brilliant, it’s been so much fun I would highly encourage you to check it out if you’ve ever checked it out or been away for a while.  We had a really amazing discussion.  You know, we talk about ContraPoints from time to time, the YouTuber that we’re both big fans of.

Andrew:         Yeah.

Thomas:         And she had a big like Twitter spat and deleted her Twitter and so Jamie and I talked about what happened in the cancel-culture kind of charges that go on, so that just came out, but also I wanted to mention that we are going to jump on the show right after the debates and do a little post-debate special, I’m gonna record that as though it’s live and just get it out right away.  We are so excited, we’ve been pumped to watch this debate for months, so Jamie and I will be bringing that to you over on SIO.  Go check it out!  If you haven’t I think maybe you’ll like it.  Alright.

Andrew:         That’s awesome, I’m very excited about that!

Thomas:         Okay, any other announcements?  Are we ever gonna get to the show?

UPcoming Show Topics

Andrew:         Yeah just one more, I’m really excited about these as well!  Next week we are going to discuss the absolute crazy events that happened in the North Carolina State Legislature yesterday in which the House Republicans, the State House Republicans effectively staged a coup, exploited a loophole in the North Carolina Constitution, we’re gonna break all that down for you.  I have an interview lined up that won’t be on Tuesday but it will be after that with a member!  With a Democratic member of the North Carolina legislature.

Thomas:         Ooh!

Andrew:         So we’re gonna cover that, don’t worry, and we’re gonna explain what happened and talk about fighting back.  And we’re also gonna talk about Brexit.  And all that’s gonna be on Tuesday’s show for reasons that you’ll hear on Tuesday.  So make sure you’re listening to that one.

Thomas:         Alright, well, all that said, so much to be excited about, but we’ve got to get to our show, our regularly scheduled programming.  Today we’ve got a quick Andrew Was Wrong on [Laughs]  

Andrew:         [Laughs]  

Thomas:         Just a super short Andrew Was Wrong that we’ve gotta take care of, those are always fun, they’re my personal favorite especially since the T3BE is just Thomas Was Wrong every single week.  [Laughs]  

Andrew:         [Laughs]  Oh I can’t wait for this week! 

Thomas:         Yeah.  Hey, great!  We’re gonna be talking about asylum and the Supreme Court and finally we’ve got a little tryst on Yodel Mountain, a romantic getaway briefly to Yodel – actually it might not be so brief!  Looks like we’ve got a lot to talk about there.  So that’s our schedule, here we go, let’s do it!

Andrew Was Wrong About Nunes’ District Gerrymandering

[Segment Introduction]

Thomas:         Okay Andrew, what were you wrong about this time?

Andrew:         Yeah, a little throwaway line in the Devin Nunes lawsuit, I said, “and of course this guy’s gonna get re-elected, he’s in a super safe district.  Thanks gerrymandering!”

Thomas:         Oh yeah.

Andrew:         Approximately 28,000 people emailed to point out something that, you know, we have said on the show, which is-

Thomas:         It’s something I should have known, I just didn’t catch it I guess.

Andrew:         Yeah, which is in California, a nonpartisan independent commission draws the districts, it is one of the least gerrymandered States in the Union and it’s one of the ones we have talked about commandeering using the Governor and the Legislature, Democratically controlled, to actually gerrymander California more to fight back under the new post-Rucho world that we’re living in, so yes we knew that, that was a throwaway line.  But I will own up to it, that was my mistake I should not have said “Devin Nunes is in a gerrymandered district.”  He is not, he’s just in a district with lots of people that-

Thomas:         Everyone made fun of us when we elected the Governator but, you know what?  He was key in the gerrymandering reform, so.

Andrew:         Yeah, he really does – Schwarzenegger really does have good positions, particularly on gerrymandering, he sort of made that his signature issue.  And, again, if we had a Supreme Court that was reasonable in 2017 I certainly would have agreed with them, so I was wrong on that. 

andrew Was Wrong about Power Tools

Also I can’t remember if I did this correction on the air or not but a couple of episodes ago when we were talking about various brands of power tools I used Black & Decker and DeWalt as two examples, and-

Thomas:         I think once again you’re trying to shield me from the criticism.

Andrew:         [Laughs]  

Thomas:         I already have a hard enough time with T3BE.  No, I threw out DeWalt, I think-

Andrew:         Yeah.

Thomas:         -and you threw out Black & Decker or vice versa, something like that.

Andrew:         Well, Black & Decker owns DeWalt, so-

Thomas:         Yeah.

Andrew:         Those would not be two separate entities anymore and it will probably not surprise the listeners to know that my expertise with power tools is pretty minimal, but I’ll own up to that one too.

Thomas:         Let’s face it, though, if anything happens with product liability you’re just gonna sue Disney Corp. at this point for anything.

Andrew:         [Laughs]  

Thomas:         Right?  Pretty soon it’s gonna be one corporation [Laughing] owns every single thing, so we can just count on – you sue Disney, Comcast, Time Warner, AT&T, you know, whatever, Disneyland – what else am I forgetting?  McDonald’s I guess. That’s it.

Andrew:         Yeah, yeah.

Thomas:         That’s everything.

Andrew:         Coca-Cola maybe.

Thomas:         [Laughs]  Coca-Cola, yeah!

Andrew:         Yeah, no I wish we lived in a country that had antitrust laws.  It is seriously on our whiteboard to talk about the demise of antitrust in this country.

Thomas:         I know a certain candidate named Elizabeth Warren who might be able to fix that for us.

Andrew:         It would, you know, I understand she has a plan for that, so we’ll find out!

Thomas:         [Laughs]  

Andrew:         Alright, I’m done being wrong, now.  Let me be wrong about something prospective now.

Thomas:         Yeah, I’ll never forgive you for how wrong you were.  Yeah, that was unforgivable, you were absolutely wrong about all that and I don’t know why anyone listens to you, so… Alright, with that said, let’s listen to Andrew some more! [Laughs]  

Andrew:         [Laughs]  

Thomas:         Let’s get to our main segment here.

Immigration Expedited Removal Case Status

[Segment Intro]

Thomas:         Alright Andrew, so, [Groans] the Trump administration has been trying to quickly and, I don’t know if you’d say quietly but, sinisterly, re-write the asylum rules and get it through as fast as possible, and I know there was an injunction.  What’s the status of all that? 

Andrew:         Yeah, the Supreme Court has just blocked that injunction from going into effect so this is a disastrous ruling and let me kind of put it all into context.  We talked about this last on episode 301 at the end of July right after the Trump administration sort of quietly changed the rules and then a U.S. District Court in the Northern District of California, six days later, issued a nationwide injunction blocking those rules from going into effect. 

So here’s what’s going on, and this is absolutely critical because almost nobody reporting on the asylum rules change is reporting on what the actual effect of this is going to be.  So I want you to know it is way worse than even the stories are suggesting.

Thomas:         Yikes.

Description of Expedited Removal

Andrew:         And here’s why, yeah.  As we talked about in episode 301 the process that the Trump administration wants to use in these massive raids by ICE is a process called “expedited removal.”  It’s exactly what it sounds like.  You get zero due process, they apply whenever a U.S. Customs and Border Protection agent determines that a non citizen arriving at a Port of Entry is inadmissible for misrepresenting a material fact or lacking necessary documentation. 

You just get summarily deported, that’s what expedited means, that’s what these raids are about, and historically expedited removal has applied to non citizens – initially the idea was if you watch somebody cross the border illegally, an immigrations and customs enforcement officer can say “hey, I just watched you sneak across the border, do you have documentation?  No?  I can point my gun at you and require you to turn around.”  You don’t get due process of law.  And we can talk about whether that’s a good way to run a border or not, but that’s the original implementation of the statute and the underlying regs. 

It immediately got expanded to include expedited removal to noncitizens who are arrested within 100 miles of the border and unable to prove that they have been in the United States for more than the past two weeks.  So, again, kind of stretching that initial border crossing, it then became instead of “I just watched you cross the border,” “okay, you crossed the border a week and a half ago and you managed to get 50 miles away and we caught up with you, we’re gonna include you in that same set of rules.”  And again, we could debate the efficacy of that, we could debate the morality of that.

Thomas:         Right, but I think we see the trajectory of this.  [Laughs]  

Andrew:         Yeah.

Thomas:         It’s getting harsher and harsher.  Pretty soon it should be “your ancestors immigrated here but we’re still going to apply this to you.”

Andrew:         Yeah, if we can make that rule 1600 I’ll be for it.

Thomas:         [Laughs]  

expansion of the scope of expedited review

Andrew:         No, on July 23rd the Department of Homeland Security published the notice that, this is what we talked about on the episode 301, that it was expanding the scope of expedited review to apply to aliens encountered (quote) “anywhere in the United States for up to 2 years after they have arrived.”

Thomas:         Hmm.

Andrew:         That did not follow the normal notice and comment period and we discussed the injunction, we put a big yellow smiley face on that episode and we said “hey look, District Court has enjoined this procedure and the Trump administration has so fallen all over itself to try and rush this obviously ridiculous reinterpretation of the rule into place such that it’s gonna get blocked, it did get blocked, and good thing.” 

So you already know the punch line, which is the Supreme Court has now issued a stay of the District Court’s order.  I’m gonna talk about procedurally where it is, you can probably anticipate what it means, but first I want to explain the significance of that change going into effect. 

That change going into effect means that now for thousands, hundreds of thousands of folks, they will not, if they have been in the country – if they cannot prove that they have been in the country for more than two years to the subjective satisfaction of the agent and they’re encountered anywhere in the United States, they can be subject to this expedited removal proceedings. 

Thomas:         How do you – when you say the “objective satisfaction”?

Andrew:         No, no.  Subjective.

Thomas:         Subject – okay, I misheard you, I guess.  That’s bad.  [Chuckles]

Andrew:         Yeah.  And look, applications for asylum were the way in which folks getting caught up in Trump’s net were triggering a modicum of due process. 

In episode 301 we talked about how bad the immigration courts are.  I read at length from an article written by a sitting immigration judge who basically says, look, our hands are tied, there’s very little that we can do, we don’t have the same discretion, we don’t have the same general grant of jurisdiction as a normal Article III Court judge and there’s not a lot that we can do.  Also our pay and our ratings are tied to how expeditiously we blow through cases.  It’s really, really bad.  But at least that’s something

The change to the asylum rules means that for hundreds of thousands of individuals, they will not be able to invoke any semblance of due process.  They will not get before an immigration judge.  They cannot request asylum and thus trigger the proceeding, and the threshold is “do you have a credible fear of persecution in your home country,” right?  That’s what you have to demonstrate to the asylum officer, and the underlying regulations are, there must be a significant possibility taking into account the credibility of the statements made by the alien in support of their claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum. 

So, in other words, petitioning for asylum was already a really, really hard thing to do, but it at least triggered the process and now lots and lots of people will not be able to trigger the process.  You will not be eligible to petition for asylum if you are caught anywhere in the United States and you cannot prove that you have been here for over two years.  Now how did this happen?

Thomas:         Well I think we should leave a little cliffhanger, take a little break, and we’ll find out how it happened after this.

[Commercial – for $60 off your first order]

Thomas:         Alright, Andrew, how in fact did it happen?

Procedural History

Andrew:         The way in which it happened is that plaintiffs who were legal services organizations that work with immigrants petitioned for a temporary restraining order and preliminary injunction in the U.S. District Court for the Northern District of California, that was granted. 

That was then immediately appealed to the 9th Circuit – and by the way I should say, Thomas as you well know, as our listeners well know, granting that preliminary injunction means that the plaintiffs established both irreparable harm and the likelihood of success on the merits. 

Thomas:         Yes, that’s my area of expertise in the law!

Andrew:         Yeah.

Thomas:         That’s where I have studied the most.

Andrew:         [Chuckles]

Thomas:         Injunction law, yeah.

Andrew:         So the 9th Circuit affirmed and reversed in part.  The 9th Circuit said, “you plaintiffs have established irreparable harm with respect to the jurisdiction of the 9th Circuit, with respect to California and the Pacific Coast, but this is a nationwide injunction and there is not enough evidence in the record to support irreparable harm everywhere in the nation” so they sent it back to the District Court and said, “look, that’s without prejudice,” you can still conduct additional fact finding, but on this record we can only sustain the injunction with respect to the States that are within the ambit of the 9th Circuit. 

So it went back in mid-August to the U.S. District Court, the plaintiffs moved to supplement the record with additional facts, the Court allowed that, they considered the additional facts, and a couple of days ago on September 9th, the U.S. District Court re-affirmed its nationwide injunction.  It said “yeah, we’ve considered all the facts and absolutely this rule has to be blocked from going into effect everywhere in the United States.” 

supreme Court Ruling

The Trump administration immediately petitioned the Supreme Court to stay the effect of that injunction and yesterday on a 7-2 decision

Thomas:         Seven, two?

Andrew:         Yeah.  The Supreme Court, in a one paragraph non-analytical opinion, issued a stay of the District Court’s opinion.  So a couple of things with respect to that.  The first, as you point out, this was a 7-2, this is the same lineup as in Trinity Lutheran and Masterpiece Cake Shop. 

In other words, the majority was able to peel off both Kagan and Breyer as well, the dissent was only Sotomayor and Ginsburg.  I’m gonna speak to that in a minute. 

The opinion does not express any legal evaluation whatsoever which is kind of odd because, again, to stay a court’s judgment the Trump administration needed to petition and convince the U.S. Supreme Court that they would suffer irreparable harm if the rule change was not allowed to go into effect, and I don’t know that that’s the case, right?  That’s not a slam dunk argument.

Thomas:         They would just say the irreparable harm is some immigrants getting to live a day without being hounded?  Is that what it would be?

Andrew:         Yeah.  That’s right.  And look, that’s why it’s irreparable harm the other way, it’s about to get way worse.

Thomas:         Yeah.

Andrew:         But saying continuing the status quo is irreparable harm strikes me as a harder argument, and also saying that you have a substantial likelihood of success on the merits strikes me as a hard argument.  The Supreme Court didn’t answer either of those, it just said “the application for stay is granted, the District Court’s September 9, 2019 order restoring the nationwide scope of the injunction is stayed pending disposition of the government’s appeal to the 9th Circuit and disposition of any Petition for Writ of Certiorari.” 

So the rule change is about to go into effect and the Supreme Court is signaling – and again, you can maybe change their mind, but that is them having prejudged the question and said, “yeah, no we think the government’s probably right that it has the authority to promulgate this change to the rules.” 

That means, by the way, that the Supreme Court is going to say that the procedural irregularity, that is this rule was not subject to a notice and comment period, the only thing (this is a prediction) the only thing I can think of is that the Supreme Court is gonna say that that’s harmless error.  “Yeah well they should have published it for notice and comment, they didn’t, but it’s in effect now so what are you gonna do about it?”  This is a terrible, terrible ruling and life is about to get miserably worse on the border. 

We have already seen reports of U.S. citizens who have been swept up in ICE raids, I don’t know how U.S. citizens are going to avoid being summarily deported under the expedited removal process because they’ve taken this – it’s an expedited process!  They’ve taken it out of any kind of opportunity to go before anyone that has the authority, even an immigration judge that has the authority to look and it and go “okay, well you’ve got ‘X’ hearing and you can gather together the appropriate documents by that date and prove your citizenship.” 

It’s gonna be bad, and the likelihood of obtaining relief – I mean, I think the 9th Circuit will uphold the injunction but then the Trump administration will immediately appeal to the Supreme Court. 

This is something that we need to fix at the ballot box.  This is going to be, I think, the grounds upon which the election really is waged in 2020.  If you enjoy living in a country in which children are separated from their families and people at the border are rounded up and put into cages and you want more of the same, you can get more of the same.

Thomas:         Have I got a country for you!  Yeah.

Andrew:         Yeah.  I don’t see around it.

Thomas:         So was the main case for the original stay, the injunction that the Circuit Court, I guess, issued, how did we get such different outcomes here?  Was it just this comment period?  Is that what it hinged on?  Or like is it taken for granted that they have the right to do this they just needed to go through these hoops first?

Andrew:         No, the original decision was comprehensive.  It said, look, not only did you violate the procedures but also you violated the Administrative Procedure Act, that the underlying interpretation of the regulations was not reasonable. 

And we talked about how that was a really, really high bar.  Administrative agencies get substantial deference to interpret their regulations and reinterpret their regulations, but that seems like a good view.  Again, regardless of the outcome, the idea that you would transform a rule that was designed to cover folks sneaking away from the border for up to two weeks and up to 100 miles, and expand that to two years and nationwide seems flatly inconsistent with the delegation of authority given by Congress. 

But this is an example of the, you know, heads I win tails you lose game of the Supreme Court and the right wing stripping Chevron deference out.  This is a case in which Chevron deference very clearly would not apply because it’s gone beyond the authority of the statute.  But you can, by eliminating that, you can put every question of administrative grants of authority is now a question for a conservative court to review de novo as a matter of first impression. 

And the Supreme Court has told us where it’s gonna come out.  It would not have granted, summarily granted a stay, if it did not think that the government had a substantial likelihood of prevailing on the merits in the 9th Circuit and it would not have written the order the way it did, which said “this injunction will continue effect through the ruling by the 9th Circuit and any Cert Petition filed by the government.”  That is as clear a signal as possible of, “yeah, yeah, and if the 9th Circuit, those crazy liberals, gets this wrong just appeal on up and we’ll take care of it.”

Thomas:         Huh.  Well that seems bad.

Andrew:         It’s real bad!

Thomas:         If it’s that bad how did they get 7-2?  I’m puzzled by this.

Andrew:         Yeah, I think-

Thomas:         When you said 7-2 I was thinking, “okay well this will be the case where like, yes, they have the right to do it, but it’s just a procedural thing” but-

Andrew:         No.

Thomas:         Why wasn’t this 5-4?

Andrew:         So I think it is the following situation, and it should give you great pause.  One of the things we discussed in the earliest days of OA was the end of the Supreme Court’s 2015-2016 term in which Justice Kennedy appeared to be siding more with the Court’s left wing than in previous terms, and one of the things that you may have recalled that I was hypothesizing was, you know, Justice Kennedy was probably tired of being-

Thomas:         Mm-hmm.

Andrew:         -the key swing vote.  He was sort of looking at it going “alright, I see which way this is going, Hillary Clinton is going to be elected, Antonin Scalia is gonna be replaced either with Merrick Garland or with someone even further to the left than that and I’m sick of fighting the fight for these things and having every single opinion come to that.”

Thomas:         Well I remember Seidel I think it was – or Seidel, Andrew Seidel, I remember he disagreed with you and said “no I think Kennedy loves bein’ the center of attention.” [Laughs]   

Andrew:         Yeah, yeah!  And either way, right?  So that was predicated on a fact that obviously did not occur. 

Thomas:         Yeah.

Andrew:         Antonin Scalia was not replaced by Merrick Garland, Hillary Clinton was not elected, and now the Supreme Court has swung very far to the right, and I would offer up that same kind of potential hypothesis with respect – particularly with respect to Stephen Breyer, who’s 81 years old, and I can see Breyer going, “look, I’m tired of everything being 5-4 and of being the Washington Generals to the Harlem Globetrotters of the Court’s right wing, I’m going to strenuously dissent on the issues where this Court is completely off the rails, but I’m just weary of dissenting all the time when it will do absolutely no good whatsoever.” 

And that should be troubling.  That has the potential to grant more of the veneer of objectivity if these 5-4 decisions start becoming 6-3 and 7-2 decisions.  Maybe I’m misreading it.  Look, you know, it’s idiosyncratic. 

Thomas:         Why is this so speculative?  Because they issued such a short ruling you’re not even able to access-

Andrew:         Yup, yeah.

Thomas:         -a guess on the logic of it?

Andrew:         Yup.  Because, literally I read you the entirety-

Thomas:         [Laughs]  

Andrew:         I mean I alighted over a couple of words, but that was it. 

Thomas:         Yeah.

Andrew:         And again, they very easily could have joined in the Sotomayor/Ginsburg dissent which says, it’s two pages long and it says “this is an extraordinary rule and we should not disturb an injunction from preventing it from going into effect while the Court adjudicates whether it’s permissible.” 

The fact that they didn’t join that – again, could be a very pragmatic decision.  Could just be “well look, whether I join this or not the Court is going to stay the judgment” but it’s a warning flag, it’s something that I’m gonna keep my eye on, it’s something you should keep your eye on, listeners should keep their eye on. 

We’ve seen, up until now, the only political cases where we’ve seen that kind of 7-2 alignment that I can recall are religion cases, because Breyer and Kagan have had that sort of more soft accommodationist view on separation of church and state issues.

Thomas:         Yeah, from my memory they tend to be like “well sure it’s totally unconstitutional, separation of church and state, but they’ve been doin’ it for 80 years, so that’s fine.”

Andrew:         Yeah.  That’s the Breyer position.  The Breyer position is absolutely, when it’s been a long time, cooommme ooon!”

Thomas:         [Laughs]  

Andrew:         So yeah.  So I hope I’m over – I hope that this is just kind of a one off, but-

Thomas:         Bottom line for us that means these rules are in effect and in all likelihood will just be in effect and nobody can change it, right?

Trump Administration Denying Temporary Protected Status to Bahama Refugees

Andrew:         Yeah, until we replace the President that’s correct.  And if you want it to be worse, news that came out just this morning-

Thomas:         I don’t, but okay.  [Laughs]  

Andrew:         The trump administration will deny temporary protected status to Bohemians who have fled here from hurricane Dorian, their home country is in shambles, temporary protected status means that you can get a work visa and these folks now cannot get work visas in the United States unless they were otherwise eligible, which, again, they’re not otherwise eligible. 

I want to explain the insidiousness of this because this will then – because, look, these people have been displaced from their homes.  They’re living in the United States.  It is not cheap to live in the United States.  They will now be forced to go underground, ‘cuz you’ve gotta get money, right? 

They’re not eligible for government benefits, they’re now not eligible for work visas, and again these are temporary visas, so they will be driven into the underground economy and then a year from now you will hear them demonized as “illegal immigrants”-

Thomas:         Huh.

Andrew:         -because they will have broken the law because they will be working without a work visa.  The reason they’re working without a work visa is because the administration is monstrous. 

I cannot find – and again, our listeners love to correct me – I went through the last six or seven major disasters dating back to the George W. Bush administration, it is routine and a matter of course for the government to issue these kinds of temporary protected status waivers that allow folks whose home countries have been devastated by natural disasters to work for a brief period of time so that they can feed themselves while their home country gets rebuilt.  This administration isn’t doing that.

Thomas:         [Sighs] Yeah.  I mean, I guess they should have thought of that before they summoned a hur- I dunno.  I don’t know.

Andrew:         And by the way, this is not just a handful, this is 1500 people so far, NBC news report I’ll link in the show notes, have fled from hurricane Dorian to the United States.  Those 1500 people, they can stay as temporary evacuees but they can’t work, and there you go.

Thomas:         It’s just so illogical to me, it’s so backwards.  We really need to change the administration, simple as that.

Andrew:         Yeah, yes we do.

Thomas:         Understatement of a lifetime.  Oh, alright, well, are you done bumming us out? [Laughs]  

Andrew:         I am!  I am.  I’ve got good news in the next segment.

Thomas:         Alright, good news in the next segment.  Well, I think we should take a quick break and then we’re yodeling!

[Commercial –, businesses that successfully sign up will receive an extra $1000 capital]

Yodel Mountain – Initial Roadmap to Impeachment

[Segment Intro]

Thomas:         Okay Andrew, you hear the yodeling echoing through your ears.  Impeachment?  That can’t be, that must be a typo.  What are you talking about?

Andrew:         No.  Report this morning in the Washington Post, corroborated credible sources, the Judiciary Committee has voted on the initial roadmap for how to draft potential articles of impeachment against Donald Trump.  This is the same process that was used by the Republican House Judiciary Committee in 1998 against Bill Clinton. 

The interviews in the Washington Post article, A, I should point out, were up to 134 Democrats who have publicly come out in favor of moving forward with an impeachment inquiry, and the interviews here – what the Washington Post did because, again, sort of journalistic “both sides,” they interviewed a New York representative, Anthony Brindisi.

Background on Brindisi

I’m gonna talk about him in a minute, but first I will tell you that the sense in the House of Representatives – and Brindisi (I was gonna save this for later) Brindisi is by some measures the most conservative Democrat in the House of Representatives, he was elected from an upstate New York district that is R+15, he’s a freshman so, you know, he’s paranoid about losing in 2020.  He comes from a very, very conservative district.  It was the second most conservative district-

Thomas:         Did you say he won’t be held responsible?

Andrew:         [Laughs]

Thomas:         Oh this is a reference you’re not gonna get.  This is like you dropping a nice ‘80s music reference on me, but he was only a freshman [Singing] for the life of me, I cannot-

Andrew:         Oh, I got that one!

Thomas:         Oh, okay!  Alright!

Andrew:         It’s a terrible song, but I do know it, so…

Thomas:         [Laughs] How dare you. [Laughs] We’ll let the audience decide.  Anyway just trying to provide some levity to our depressing, horrible episode.  Go on! [Laughs]

Andrew:         Yeah!  So other than Ben McAdams who won in [Laughing] Utah’s 4th District which is R +20, Brindisi was elected from the second most conservative district in 2018.  Ben McAdams is also a freshman. 

By Progressive Punch which is, as you might imagine, a left progressive organization that ranks members of congress they rank Brindisi as an “F” they rank him as the most conservative member of the House of Representatives, of the Democratic members of the House of Representatives, in terms of voting record compared to district.  So even coming from a conservative district he’s more conservative than that.  He is, by their estimation, the most conservative member of the House. 

So keep all of that in mind when Brindisi says “I think the train has left the station and at some point there’s going to be a vote on articles of impeachment and that’s a concern for members like myself who represent moderate districts.  I said, look, over the next 6 months I would much rather see the Democrats as the party of lowering prescription drug costs, not the party of impeachment.”  The message he got in response was that the committee is doing their due diligence and that they were not committed one way or the other as to where that investigation would lead. 

But I think the fact that that’s the thought process of one of the handful of Democrats who is likely to be lukewarm on impeachment, and I’ve said, nakedly self-interested.  That’s gonna sound worse than it is.  So I don’t wanna pick on Brindisi too badly, I think I said, you know, nakedly self-interested vote here. 

Look, I would much rather have Brindisi in the House of Representatives, and we need people like him because if Brindisi goes he’s gonna be replaced by a member of the howler monkey contingent, right?  If we lose McAdams in Utah he’s gonna be replaced with a Utah Republican and Utah Republicans are-

Thomas:         Yeah.

Andrew:         -way worse than Utah Democrats.  So I get that they need to make a political calculus to get re-elected and I get that they’ve only won once.  Once you’ve won a couple of elections you start feeling like, “oh hey I’ve got the incumbent bonus, I can weather through the storm.” 

The impeachment struggle

So I don’t begrudge him viewing it through a political lens and I want to point out, so this sort of all ties together with the Optimist Prime in me, this is Brindisi saying, “look, it’s about messaging, I’m not saying that Trump doesn’t deserve to be impeached” now look, he’s not saying that Trump does, he’s saying “I want us to be running on a solutions message rather than me have to answer on impeachment when I’m back campaigning in my district, ‘cuz it’s not what I’m gonna be campaigning on.”  I get that.  That’s what Nancy Pelosi is struggling with. 

You and I have come out very, very strongly nationwide the other way and I stand by that, but I don’t wanna pick on Brindisi too badly here, and I do think that the underlying notion that continues to support what I said in that Optimist Prime segment.  I think we are moving towards an impeachment vote in the House.

Thomas:         Alright, everybody take one ear pod out.  I just gotta say this.  Alright, I just have to say this, though, again, the dichotomy to this guy and some other people is “we can’t be the impeachment party, we’ve gotta be the reduce the prescription…” [Yelling] NOTHING IS PASSING!  You’re not going to pass anything!  You’re not gonna pass anything. 

So, he’s like “okay, well we can’t be the impeachment party we have to be the party that draws up bills that NEVER will see the light of day in the Senate and that Trump won’t sign!  That’s what we need to use our valuable time for because we all knows those ‘message bills’ that don’t pass, those just tear through the media and [Sarcastically] make such a big impression.”

Andrew:         [Chuckles]

Thomas:         It doesn’t do anything!  I mean, right now the prescription drug bill, I’m just Googling it, they’ve got one that I imagine is probably pretty great, it’s all drawn up, I don’t know if the House has voted on it but they seem to have done that work, that took, you know, however long that took, and then nothing’ll happen because Trump is not – McConnel won’t put it for a vote or Trump’s not gonna sign it. 

The idea that the House can’t do two things – one is, maybe there’s one bill that Trump’ll sign, maybe, like if you do the right combination of voodoo and magic and whatever, maybe you’ll find something that’s a watered down terrible bipartisan somethin’ that doesn’t do anything, maybe he would sign that.  But the idea that that takes 100% of your time and you can’t do anything else?  You can’t even look into impeachment or start doing it?  It just drives me nuts.  Sorry.  Andrew, am I wrong?  Am I wrong Andrew?

Andrew:         No, you’re not wrong.  The only thing that I would, if I’m steel manning the-

Thomas:         Feel free.

Andrew:         -contrary position here, it would be, yeah, it’s not about the time it takes to pass the bills, it is about the messaging.  So what I want to do is, I want to go back to my home district and talk about the vision of what we can do starting in 2021 with a Democratic President and a Democratic Congress, and not talk about impeaching Trump in 2020.  That would be the counterargument, that is the Pelosi argument by the way.

Thomas:         But you can still just do that.

The Pro-Impeachment Argument

Andrew:         Well no because, look, and again sticking with the steel man, the counterargument is Thomas’, the reason you’re pro-impeachment is because impeachment will command the attention of the American public, right?

Thomas:         Well, I’m-

Andrew:         It will be on TV-

Thomas:         -let’s steel bot me, I’m pro-impeachment because it’s the right thing to do because he deserves to be impeached and if that clause does not apply to him get rid of it out of the Constitution, it’s nothing, it’s worthless.

Andrew:         Fair.  One of the – and we both have been pro-impeachment on rule of law grounds – but one of the advantages you might claim, in fact you have claimed and I have claimed, so if you wanna distance yourself from it for purposes of the argument I’ll argue against myself here, but on the political argument we have made the point on this show that the impeachment process itself has the potential to drive public opinion, so the fact that a bare majority in surveys right now are not pro-impeachment is a condition you would expect to change during the impeachment process.  And I have certainly made that point. 

So the counterargument, the Brindisi argument is, right, in order for that to change that means substantial public opinion and attention will be tied up in impeachment which will make it harder for me to talk about the non-impeachment things that I’d like to talk about.  That, I think, is the steel bot of that position from a political calculus.  And, again, I don’t agree with it, folks know where I come from on that, but I do want to fairly give voice to that argument ‘cuz I don’t think it’s a crazy argument.

Thomas:         Okay, little exercise for you and the listeners.  I’m seeing – sorry this is on short notice the best I can find is a Vox article from May 24th, so that’s four months ago or whatever, the House has passed 49 bills as of May.  So I was trying to find a more accurate number, who knows, it could be 100 for all we know.  Can you name a single one? 

Andrew:         [Laughs]

Thomas:         Do you know anything about a single bill that the House has passed?

Andrew:         No. 

Thomas:         Yeah, it doesn’t do anything!  I get that they still have to go through the motions, and there’s the budget and stuff they’ve gotta do-

Andrew:         They passed the equality act, I can name that. 

Thomas:         Okay, cool, good job!

Andrew:         [Chuckles]

Thomas:         So there’s one.  It doesn’t matter!  I mean, yes, they should be doing – I’m not saying they should do nothing, but this idea that [Laughing] we need to stick to the stuff that really matters, passing 100 bills that nobody ever hears about and don’t see the light of day.  Okay?  Point made, [Laughing] I hope!

Andrew:         [Laughing] I don’t disagree with that.

Thomas:         There ya have it.  Alright, what else do we need to talk about?  We’re still yodeling.

Cohen’s Cooperation with New York Investigation

Andrew:         Yeah, we’re still yodeling.  So a couple of things, obviously as always a Friday show we’re running long.  I have seen the reports that Michael Cohen is cooperating, possibly even has an additional agreement with the State’s Attorneys office in New York in connection with their ongoing investigation of the Trump organization, but just reports.  So I’m aware of it, there are no documents, there’s nothing that I can do to confirm or analyze to tell you anything differently than what you’ve heard. 

Obviously Cohen has been one of the key cooperators ever since he was thrown under the bus by Donald Trump so, you know, we’ll keep our eyes on that, when I know more I’ll report it.  The opposite of Michael Cohen is, of course, Michael Flynn.

Thomas:         Hmm.

Flynn’s New representation

Andrew:         We have covered Flynn on the show, we covered it back when he fired his excellent defense team from Covington & Burling and replaced them with a Fox News talking head in Sidney Powell.  I should add, Sidney Powell has credentials to be a lawyer in the same way that Ann Coulter has credentials to be a lawyer, I wish I could think of another prominent talking head, it isn’t that she doesn’t have a legal background it’s that she’s now a total hack and conspiracy theorist and, in fact, she has taken hackery and conspiracy theory into the Flynn proceedings.

Which, just to keep everyone up to speed, Michael Flynn was scheduled to be sentenced in December of 2018 and the parties agreed to postpone that so that Flynn could continue giving assistance to the Special Counsel’s office.  At that time the Special Counsel’s office prepared a sentencing memorandum that said “Michael Flynn has rendered substantial assistance to the government” and that they did not oppose a sentence in the 0-6 month range, and they specifically said “including a sentence that involved no jail time.” 

Motion for Brady Material

Flynn, of course, pled guilty to 18 U.S.C. § 1001(a) which is making a false statement to the FBI in connection with the Mueller investigation.  Well, Sidney Powell has filed a whole bunch of motions, I’m going to upload the latest one which was filed yesterday in Flynn’s case demanding that they turnover Brady material.  Brady material is named after the Supreme Court decision in Brady v. Maryland, which I believe is a 1973 case-

Thomas:         I know that.

Andrew:         -which requires prosecutors to turnover exculpatory evidence that they find-

Thomas:         Yeah!

Andrew:         -in the course of an investigation to a criminal defendant.

Thomas:         This lawyer knows that!

Andrew:         Yeah [Laughs] It is designed-

Thomas:         Right with ya, lawyer!  Lawyer to lawyer, I getcha!  I hear ya!  Brady violations!

Andrew:         Yeah, you’ll hear it from time to time in-

Thomas:         I know!  [Chuckles] I’m right with ya!  Totally same page!  I just wanna emphasize how much I knew what you were talking about with Brady violations.

Andrew:         Awesome!  And I will tell you, the prosecutors I know who are friends of mine, to an individual they take the notion of Brady violations very, very seriously. 

I am sure there are some prosecutors who are jerks out there, who are the kinds of stereotypes that we deal with on Law’d Awful Movies, who [Impersonation] don’t care, a conviction at all costs!  But most prosecutors that I know of really do wrestle with the idea that they could be convicting an innocent person, so even if they think (and this is really what happens in Brady cases) is you look at a situation and you say “boy, I think that Thomas Smith is guilty, I think I’ve got a strong case against him and I think if I disclose this piece of information to Thomas Smith’s attorneys it’s gonna make it harder for me to put Thomas Smith away, but I’m gonna err on the side of making sure that they have access to everything that I’ve uncovered that is potentially exculpatory because that’s-

Thomas:         That’s the law!

Andrew:         That’s my ethical obligation,” yeah. 

I have been involved in a Brady case, it was a pro bono matter that I handled for a witness, I think I’ve talked about this in our Q&A’s, this was 10, 15 years ago and I was asked by a judge to represent a witness in a criminal prosecution, this person was a victim of a pretty vicious crime ring and my witness was himself potentially subject, he had potentially committed some crimes and was skeptical of the whole process, and in any event he wound up contradicting his testimony on the stand. 

He said things that were different than he had said in prep sessions with me and with the District Attorney and the District Attorney called me up and said “hey, I think this is a Brady issue and I’ve gotta tell the other side that he’s changed his story.” 

And so I pass that on because the idea that the Mueller team of seasoned prosecutors did not take their Brady obligations seriously-

Thomas:         Yeah.

Andrew:         -is really hard for me to believe.

Thomas:         Yeah.

Goal of Flynn’s Motion

Andrew:         And this pleading, I’ll upload it, it’s got 40 separate line items and it’s the “you didn’t turn over all of the Peter Strozk and Lisa Page emails,” it’s just Fox News garbage, which is what you would expect from a Fox News garbage human who Flynn hired as his attorney. 

The suspicion is that Flynn is looking for ways to tear up his plea deal, his plea deal was negotiated with the Special Counsel’s office and requires him to testify truthfully and not to commit any criminal violations. 

And now we get to what happened yesterday, which is Adam Schiff with respect to an outstanding subpoena requiring Michael Flynn to testify before the House Judiciary Committee has now rescheduled Flynn to appear. 

If Flynn refuses to appear we will go through the same process that we are going through with McGhan and with Hope Hicks, but there will be that additional hammer hanging over the head, a sword of Damocles, whatever analogy you wanna use, hanging over Flynn’s head because if he is convicted of criminal refusal to testify pursuant to a valid subpoena that will invalidate his plea deal and he can be re-indicted and all of his statements, his guilty plea still stands and all of this statements, including everything he’s said that has been recorded in connection with the Mueller investigation can be used against him in subsequent prosecutions.  There’s an asterisk around that, which we’ll talk about if and when Flynn decides not to show up, but that’s the calculation that makes Flynn a little different. 

Now is he angling for a pardon from the President?  He’s probably angling for a pardon from the President, but there you have it.

Thomas:         Alright, as you said, we are now officially way over time, but that was some fun yodeling!  I appreciate it, it’s always good to be back to Yodel Mountain. 

Now I think it is time for our switcheroo that we made, and we had a listener help us out to keep the alliteration going, so in the patron thanks this is now First Timer Friday, Tuesday will be Top Patron Tuesday.  Thanks!  I wanted to thank who that person was by name but immediately the notification disappeared on Facebook and it’s impossible to find anything on there when you get a bunch of notifications.

Andrew:         [Laughs]

Thomas:         So sorry about that, but thank you for that whoever helped us with that!  So here we go, First Timer Friday, and it’s Andrew’s turn first.

[Patron Shout Outs]

Thomas:         Alright, time for me to get the question wrong when I decide the wrong thing between the two that I land on!  It’s T3BE!

T3BE – Question

[Segment Intro]

Andrew:         Okay, and this week’s T3BE is brought to you by, this is from longstanding hall of fame patron.


Andrew:         So alright, now on to the question and you’re on a slightly lengthy – we’re not gonna dwell on that.

Thomas:         I’m gonna turn it all around right now!

Andrew:         You’re gonna turn it all around with this Real Property question.

Thomas:         [Laughs]

Andrew:         I honestly think, I have faith in you.  Thomas-

Thomas:         I don’t even want to hear it, don’t worry about it!  It’s fine, I’m gonna get it wrong and it’s okay and we’re all fine with it.  You know why?  Because I didn’t use Bar Prep Buddy.

Andrew:         [Laughs]

Thomas:         But maybe someday I will get things right.

Andrew:         A buyer and a seller entered into a written contract for the sale of an identified parcel of land.  The contract expressly provided that the buyer was to pay $150,000 cash for the land at the time of the closing but did not state the closing date.  The parties had not agreed on the closing date because the buyer was not sure at the time the contract was signed how she would raise the cash.

Thomas:         Huh.

Andrew:         15 days after the contract was signed the seller learned that he could sell the land to a third party for $200,000 so the seller asked the buyer if she would agree to rescind the contract.  Buyer refused.  The seller then told her he would not complete the transaction contending that the contract was unenforceable under the Statute of Frauds because an essential element, time for performance, was not agreed upon by the parties and was not expressly stated in the written agreement.

Thomas:         Hmm.

Andrew:         The seller sold the land to the third party.  The buyer brought an appropriate action against the seller for breach of contract.  For which party is the Court likely to find? 

Thomas:         This sounds like a contracts question more than a real property question, but maybe that’ll be why I get it wrong.

Andrew:         [Laughs]  A, the buyer, because of the doctrine of unjust enrichment; B, the buyer because the Court will infer that performance within a reasonable time was intended; C, the seller because the contract is unenforceable under the Statute of Frauds; or D, the seller because time of performance is presumed to be of the essence.

Thomas:         Oh jeez, because time of performance is in the eye of the beholder.  I don’t – okay, so this seems more like a contracts question to me than anything else, but maybe because it’s real property there could be different rules?  That’s possible, I don’t know. 

The contract provided – so the problem is they didn’t even specify a closing date, that does seem, it seems pretty critical to a contract, but who knows?  Is it indeed critical to a contract or is it something you can kind of fudge in the details of?  They didn’t agree on the closing date because the buyer was not sure at the time of the contract how she would raise the cash.  I don’t… okay, that leans me toward the seller, but I’m not sure. 

15 days after the contract was signed seller asked the buyer if she would agree to rescind the contract.  I guess my first instinct is that this is a 50/50 thing that I’m gonna get wrong so I don’t care! [Laughs]  

Okay well I’ll just try going through the answers.  A, the buyer because of the doctrine of unjust enrichment.  I don’t really think that would be it, I think if it’s gonna be a buyer it doesn’t seem like that would be it, it seems like it would be some other reason if the buyer were gonna win. 

B, the buyer because the Court will infer that performance within a reasonable time was intended.  So that’s possible, I can’t really argue with that, it’s so vague too.  Oh, yeah, performance within a reasonable time.  Well what’s a reasonable time?  I don’t really know but I suppose it’s possible that – one thing that makes me think that this should be a contract, and this is not in any of the answers, so that sucks, is that the seller asked the buyer if they would rescind.  You know, it’s one thing if they were like “hey this is an invalid contract,” it’s another if they’re like “hey you wanna rescind this totally valid contract?” and then later they’re like “wait a minute, it’s not valid.” 

I dunno, I was hoping for an answer related to that, you know, where it seems to be the case sometimes that if both people kind of assume that it is a contract then, you know, that says that maybe it is.  C, the seller because the contract is unenforceable under the Statute of Frauds.  Well that’s the most straightforward going with the logic of the question answer, you know?  Like the question, the seller thinks it’s unenforceable under the Statute of Frauds and this answer is like, “yeah, that’s true.”  So it could be that, but that also seems really obvious, who knows. 

D, the seller because time of performance is presumed to be of the essence.  [Sighs] I am gonna be so mad if that’s the answer.  It could be, could be the answer.  How would you differentiate between C and D?  Because C and D both seem to be the time of performance is important. 

So like, this sentence, back to the question, the seller then told her that he would not complete the transaction, contending that the contract was unenforceable under the Statute of Frauds because an essential element, time for performance, was not agreed upon by the parties.  So C and D are both that sentence.  Like, C is it’s unenforceable under the statute of frauds and D is time of performance is presumed to be of the essence.  I dunno how I would pick which one of those would be right, so maybe I go with B?  Infer that the performance within a reasonable time was intended. 

But I guess what’s holding me back from B is it feels weird that you could sign a contract and be like “well I have no idea how or when I might pay you, but here’s the contract.”  Okay, I’m having a hard time differentiating between C and D, I’m gonna go ahead and say it’s between B and C, I like C slightly better than D even though I think D could be the sneaky answer. 

And I’m gonna go with B, and you know what that means! [Laughs] The answer is probably C, but I’m gonna go with B!

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

Thomas:         Everyone come to our L.A. live shooow!  If you’re anywhere near, just come!  ‘Cuz we’re not gonna have another show near there.

Andrew:         Even if you’re not near!

Thomas:         If you’re not near, if you’re far, [Sighs] it’s gonna be so fun.  And by the way, I didn’t even – we’re so loaded with fun in this show that I didn’t even announce that we’re gonna have a special guest.  Maybe I’ll save that announcement for later.  Special guest, you’re gonna want to come see.  Alright, thanks so much for listening, come to the live show, buy those tickets, we will see you on Tuesday.

[Show Outro]

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