Transcript of Opening Arguments Episode 316 – Unsealing Mueller’s Grand Jury Testimony & Other Yodel Mountain Madness

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 316.  I’m Thomas.

Andrew:         [Laughs]  

Thomas:         That over there is Andrew, how ya doing Andrew?

Andrew:         I am doing fantastic, Thomas!  I would ask you how you’re doing but I suspect that I know, but I do still care.

Thomas:         Yeah, just doing an Office Space style smashing of my audio interface that caused an hour and a half delay or whatever it was.  At least an hour.  But other than that, doing great!

Andrew:         PC Load Letter [Laughs]

Thomas:         PC Load – [Laughs]  Exactly!  It was pretty much “PC Load Letter,” like it was pretty much exactly that.  Oh, man!  Anway, okay, we have too much.  I quit, too much to do, too much to say.

Andrew:         [Laughs]  

Thomas:         Wow, what a weird news week and it’s a lot of stuff that I think is just developing, we’ve got some sort of whistleblower happening, we’re not gonna have the details on it yet because nobody does yet, I don’t think, we’ve got a lot to talk about.  We’ve got some Andrew Was Wrong – predictably I’m sure we were both wrong on something about Brexit, but we’ll see, and then we have Yodel Mountain today.  We have a lot of Yodel Mountain!

Andrew:         Yes we do!

Thomas:         This is like flashback to 2017 Yodel Mountain!  You’re all gonna be having a weird 2017 hairdo and the fashion, everything we did back then, you’re gonna be transported back [Laughing] because we have so much, we have like 5 things. 


Go to the Live show! Do it!

Alright, but before that we have to say the Live Show, in L.A., October 12th.  I’m still just as excited about it.  We are just about halfway sold on tickets, so go get your tickets, the links are in the show notes, I have to say it’s gonna be so much fun, we talked about the platinum (Andrew cooks for you), that’s halfway sold, so there’s still some slots there, get in on it because I cannot wait.  Andrew is going to make us dinner – a multi-course meal – and we’re going to have copious beverages, of course, tailored to everybody’s needs.

Andrew:         [Laughs]  Tailored to my needs!

Thomas:         Yeah! [Laughs]  It’s gonna be a private hang, seriously I cannot wait for that, really looking forward to it.  Also VIP is equally fun.  And, by the way, the platinum folks you get the VIP experience as well, that’s gonna be a hangout after the show, that was a lot of fun in New York as well.  Food, beverage and chatting and hangin’ out, really cool stuff.  And if that’s not your speed still about 30 tickets left for general admission which, hey!  Come see the show!  Hang out with us.  Got any hard sell Andrew?  Where ya at?

Andrew:         I’m with you on the hard sell, it’s gonna be a lot of fun.  I am really, really excited, I have planned out the menu for platinum night and we’re gonna all hang together in a super sweet location.  I’m really, really excited.

Thomas:         Oooh, you know why.

Andrew:         I’m gonna stop because I think that by the time this airs we’ll probably be oversold-

Thomas:         [Laughs]  

Andrew:         -and I don’t wanna make people feel bad that they can’t go.  But you should still try.

Thomas:         Well maybe I should announce our special guest, what do you think?

Andrew:         Uh, sure!  Go right ahead!

Thomas:         Let’s do it, let’s announce. 

Live show guest

Breaking news!  There’s going to be a special appearance in the L.A. show.  This is, of course, assuming nothing crazy happens because sometimes scheduling stuff can happen, but as of now we have a special guest, it’ll be a fun segment we have planned. 

Carrie Poppy of “Oh No Ross and Carrie” is going to join us onstage for the L.A. show.  It’s gonna be a lot of fun – I don’t want to give away the segment because I think I can make a nice little game out of it.  It’ll be a fun game and we can sneak in, as we always try to do in Opening Arguments, sneak in some law and some explainer in there too along with the fun and games.  So I’m super excited!  Carrie says she’s 100% going to be there unless something comes up. [Laughs]  

Andrew:         [Laughs]  Me too!

Thomas:         [Laughing] Yeah, exactly.  That’s all of us, though, so as sure as we are that we’re gonna be there – no, she’s gonna be there.  She’s, of course, located in L.A. so it’ll be easy for her. [Laughs]  So that’s a lot of fun, I’m so excited that she’s gonna do that.  Yeah, go buy your tickets, come see us in L.A. it’s gonna be a ton of fun! 

Okay on with the show, let’s get to our first segment.

Andrew Was Right about Brexit

[Segment Intro]

Thomas:         Okay Andrew, what were you wrong about?  Foolish as you are.

Andrew:         No, here’s the thing.  That’s an AWR on the whiteboard.

Thomas:         Oh!

Andrew:         We were, as far as I can tell-

Thomas:         You can’t do that to a dyslexic person! [Laughs]  

Andrew:         -we were pretty much right on everything we said about Brexit.  I’m as shocked as you are, to be honest.

Thomas:         Are you trying to tell me that the word “wrong” doesn’t start with the letter R?

Andrew:         We got a lot of comments. 

The one thing that we alighted over a little bit was that there is pending a process that is, in 2018 the European Court of Justice ruled that any member state of the European Union could unilaterally revoke Article 50.  Article 50 is what allows a member state to withdraw from Brexit.  So it is possible for the U.K. government to revoke its use of Article 50 and cancel Brexit.  How that interacts with the fact that there was a referendum in 2016 I still don’t know.  We’re going to, as we said, next week – probably a week from Tuesday we’re gonna have on a British solicitor to talk all things Brexit with us and kind of wind us through the details.  Hopefully we’ll have the Supreme Court ruling by then and we can kind of put all of this together. 

The betting and prediction markets have that option, the revocation of Article 50, as about a 20% option, so I think if you’re looking for a thing for me to be wrong about (and we know our listeners are), I think I analogized – I think I potentially analogized cancelling Brexit as sort of akin to the Jill Stein recounts or the efforts to get faithless electors to defect from Donald Trump in December of 2016 as, you know, ranging from impossible to a long shot.  The prediction markets have it at about 20% so not – still not likely, but seemingly a much more sane prediction than maybe I characterized it.  So there you go!  But as far as I can tell we did a good job on Brexit, which I feel like we oughtta just hang it up now. 

Thomas:         Yeah, okay, sorry!  I think maybe the tiny last letter of the AWR versus the AWW, let’s go ahead and bold that in the future?

Andrew:         [Laughs]  

Thomas:         Because along with my pessimism that I assumed we would be really wrong about Brexit, that combined to make it so I didn’t see that.  Yeah, okay, Andrew Was Right!  Good job! [Laughs]  Victory!

Andrew:         I shared your pessimism.  You know that I am kind of reluctant to wade into waters that are outside my expertise and this is about as far outside my expertise as I’ve ever gone.  But maybe I’ll be slightly less scared about swimmin’ with sharks. 

Thomas:         People did try to say, “oh but it’s not really like it’s two different Circuit Courts” when you talked about the Scottish Court and the English Court.  They’re like “Scotland’s actually applying Scottish law and the other one’s applying English law” and for my money [Laughing] to my ear that kind of still seems like a good comparison to the Circuit Courts, because they can apply – the Circuits in the U.S. can apply the law differently, right?

Andrew:         Yeah.

Thomas:         It’s just that they inform each other.

Andrew:         Yeah, no that’s exactly right and, in fact, that was – maybe I didn’t make it clear enough in our initial segment – but that was precisely what I was going for.  So, for example, pending resolution in the Supreme Court, the law in the 2nd and 7th Circuits is that Title 7’s prohibition on discrimination on the basis of sex covers discrimination on the basis of gender identity.  That’s not the law in the 5th and 11th Circuits.  Right?

Thomas:         Right.

Andrew:         So I think that is more of a dead on analogy than a distinction, so I stand by it.

Thomas:         There you go.

Andrew:         I will point out we had a Canadian law student named Lindon, I don’t know if we have permission to use his last name, so shout out to you, Lindon, who notes that in terms of criminal matters in Scotland, the High Court of Judiciary is the supreme body, you cannot then appeal from the High Court of Judiciary, which is apparently connected to the Court of Session, you can’t appeal criminal matters to the U.K. Supreme Court.  So, you know, there is nuance there, but as always on Opening Arguments [Laughing] we could go down rabbit trails and talk about nuance-

Thomas:         Yeah.

Andrew:         -I don’t think we got anything wrong, so I’m pretty happy about that.

Thomas:         Cool!  Well, go us!  Good job!

Andrew:         [Chuckles]

Thomas:         Alright, what else were you right, which apparently starts with an R and wrong you’re trying to tell me starts with some other letter. 

Andrew:         [Laughs]  

Thomas:         I don’t know how that would work.  What else were you right about on some sort of episode?

Andrew Was Right About Purdue Pharma Lawsuits

Andrew:         So in our last episode when we were talking about the Purdue Pharma bankruptcy I predicted that various States would soon be suing the Sacklers in their individual capacity and that has happened. 

First out of the gate is North Carolina.  The North Carolina Attorney General has sued the Sacklers in their individual capacity, that is incredibly fascinating, and we have an all North Carolina show for ya next week so we’re gonna cover that story on Tuesday, but I thought I would let folks know.  Purdue Pharma has now officially filed for Chapter 11 bankruptcy protection, we will talk about that on Tuesday.

Thomas:         Alright well I’m getting’ a little sore from patting ourselves on the back, but I think it was worth it.

Andrew:         [Laughs]  

Thomas:         So good job and I think it’s time for some extended yodeling!

Yodel Mountain – Mueller Report Redaction Case

[Segment Intro]

Thomas:         Okay, here we are.  Crisp, Yodel Mountain air!  What are we talkin’ about?  There’s so much!

Andrew:         Yeah!

Thomas:         There might be so much.  Yeah, what’s our first item of business, here?

Andrew:         So, first item up for bids on Yodel Mountain is the ongoing lawsuit, this is In Re: Application of the House Committee on the Judiciary, it is case 19-0048, it is before our favorite judge on the United States District Court for the District of Columbia which is Judge Beryl Howell and it is the petition of the Judiciary Committee to unseal the Grand Jury testimony that was redacted in the Mueller report.  That is, to release to the Judiciary those underlying transcripts and the unredacted material, which again comprises about 10% of the Mueller report largely in volume 1. 

This is a really, really interesting argument that is being made here, and so I thought it was worth kind of breaking it down.  One of the things that folks heard again and again in April – and [Sighs] yeah, it’s slightly disheartening that we first had the Mueller report break at the end of March and we discussed this in April – had to do with Rule 6(e) material.

Federal Rules of Criminal Procedure Rule 6(e)

Rule 6(e) comes from Rule 6, subsection (e) of the Federal Rules of Criminal Procedure, and what that rule says is that testimony before a Grand Jury is confidential.  That’s Rule 6 as a general rule, and then subsection (e) provides for statutory exceptions to that rule.  This is the grounds on which the Judiciary Committee has applied for release of those materials.  Rule 6(e) then contains a bunch of different subsections [Laughing] to the subsection under which a party can petition the Court to release Grand Jury material. 

The particular subsection that applies here is subsection 3, sub-subsection capital E.  [Chuckles]  What that says is the Court may authorize disclosure of confidential Grand Jury materials (quote) “preliminarily to or in connection with a Judicial proceeding” and that’s where we run smack dab into the Trump administration arguing that these Grand Jury investigation transcripts – so the material redacted from the Mueller report and the underlying transcripts – should not be released. 

They really have two arguments.  Their arguments are of varying merit. 

First Argument – Are impeachment inquiries a judicial proceeding?

The first is that an impeachment inquiry is not a Judicial proceeding.  So as part of the application the House Committee on the Judiciary says, “look, yeah we’ve begun an impeachment inquiry, we’re trying to figure out whether to impeach the President or not, in order to figure that out we’ve gotta look at the underlying Grand Jury materials, they’ve been redacted, they haven’t been turned over to us.  We need that, that’s one of the purposes of Rule 6(e).” 

Trump’s argument in response is kind of convoluted and it touches on a case that we’ve covered in the past, a case called McKeever v. Barr, and that case first came to our attention in Opening Arguments episode 206, it obviously had a different caption, it was McKeever v. Sessions back then (Bill Barr was not yet Attorney General) and it involved – there was a Politico article that was “is this one weird trick going to unravel the Mueller investigation?”  We said no, no it’s not, and we debunked that on episode 206 while the case was still pending. 

Ultimately the case got resolved by the D.C. Circuit.  So that case – I dunno if you remember our discussion on that case – that involved the historian who was writing about a trial of a former FBI agent from 1957 and he filed a request to release the Grand Jury information.

Thomas:         Oh, yeah.

Andrew:         Yeah, yeah, yeah. 

Quick case review – mckeever v. sessions

So he filed this request to release the Grand Jury information so that he could write his book.  That case had to do with non-statutory exceptions.  What he was saying was, “look, I get it, this isn’t necessary to prosecute anybody or anything else but, like, it’d be really, really useful if the public could get this information.  I’m a bona fide historian” and this is from 1957, who the hell cares?  Let’s get out the information and let me report on it. 

We told you at the time lots of crazy things were going around because it involved Grand Jury, and the Politico article was “will this stop the Mueller report from being transmitted to Congress?” and we were like “no, it’s not gonna do any of that.” 

But as it turns out – so we were totally right on that!  Let’s keep patting ourselves on the back!  [Laughs]  But as it turns out the case really does have an implication on the ongoing matters to uncover all of the Grand Jury testimony that’s been redacted and excluded.  This is a little bit complicated so let me try and unpack it out.  Remember, all of this goes to the argument that impeachment is not a judicial proceeding, okay?

Thomas:         Hmm.

Andrew:         So McKeever v. Barr went to the D.C. Circuit and McKeever lost.  This was a 2-1 decision, the 2 judges in the majority (Doug Ginsburg wrote the opinion) were conservative judges and then the judge dissenting was Sri Srinivasan, a moderate who was rumored to be on Obama’s short list for the Supreme Court before he picked Merrick Garland. 

Of that three judge panel the two-judge majority said “no, the Courts do not have an inherent exception to release Grand Jury materials ‘cuz they think it’d be a good idea.”  And I don’t want to be mischaracterizing this, it’s a perfectly reasonable – the argument McKeever was making was a perfectly reasonable argument.

Thomas:         Yeah.

Andrew:         In fact, I’m about to make a similar one in federal court in one of my existing cases. 

That argument is this: there’s a statute here, a rule, but essentially there is a codified rule of Rule 6(e) that says “here are the grounds for releasing Grand Jury materials,” and McKeever’s argument was “okay, sure, but the Court also has inherent power to release Grand Jury materials even if I don’t meet the requirements of the particular rule.”  The analogy that I would make there is something that is actually very, very well established, it has to do with sanctions. 

I’ve got a case in which the other side has done stuff that we don’t like and it doesn’t fit neatly into any of the specific rules that prescribe conduct, but the Court can always sanction a party for conduct that is not in the interest of justice, so that’s what we’re gonna do.  We’re gonna say, “hey, Court, use your inherent sanctioning power,” and I feel really good about the motion, I think we’re gonna win.

Thomas:         I do too.

Andrew:         [Laughs]  Thanks, Thomas, I appreciate it!

Thomas:         I know nothing about it, but I feel good about this one.

Andrew:         [Laughing] You know, so the argument of “hey, there’s inherent power to release Grand Jury materials” isn’t a crazy one, totally straightforward.  But the Court said “okay, we considered this, we evaluated, we decided we don’t have inherent powers to release Grand Jury material.” 

Judge Srinivasan dissent

That set up Judge Srinivasan in his dissent to say “okay, but if we don’t have the inherent power to release Grand Jury materials than how do you explain Haldeman v. Sirica, which is a 1974 decision of this Court, of the D.C. Circuit, in which we released Grand Jury information in connection with Congress’ investigation into Richard Nixon?”

Thomas:         [Chuckles]

Andrew:         Because all these are Nixon cases.

Thomas:         I like it!  “If that’s true then where did I get all this Grand Jury information?”

Andrew:         [Laughs]  Yeah!  That’s exactly right! 

So what he was doing was basically setting up kind of a double-bind.  He was like, “look, either we do have the inherent power to release Grand Jury materials” – and, by the way, Judge Srinivasan did this obviously in light of the Mueller investigation, he was 100% aware that when you start opining about Grand Jury material in 2019, he was obviously aware of the context in which this opinion would be used. 

So he said, “look, either we have the inherent power to release Grand Jury materials in addition to 6(e), which is the position that I’ve taken.  I get it, I’ve lost, but if not then by implication impeachment investigations, impeachment inquiries, must be part of a judicial process.  Because we definitely released these materials. 

This Court is not saying we are revisiting Haldeman v. Sirica and we screwed that one up and it’s bad law.  We’re saying it is good law and the majority is saying ‘we don’t have any residual inherent powers’ so therefore an impeachment inquiry must come under the notion of 6(e), it must be preliminary to or in connection with a judicial proceeding.” 

That is, in fact, what the majority – the two judges in the majority – decided to do.  In footnote 3 they said “our dissenting colleague, along with McKeever, points us to Haldeman v. Sirica which permitted the disclosure of sealed Grand Jury materials to an inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon” and then it kind of casts some shade on the opinion a little bit.  It’s like “well that case didn’t really do a lot of analysis on Rule 6(e)” and then the footnote says this:  “In any event, we read Haldeman as fitting within the Rule 6 exception for judicial proceedings.  Doing so reads the case to cohere rather than conflict with the Supreme Court and the D.C. precedents that have been discussed previously in our opinion which both predate and postdate that Haldeman 1974 decision.” 

So put all that together.  That is really, really strong evidence that the McKeever decision stands for the proposition that impeachment proceedings are a judicial proceeding for purposes of Rule 6(e).  That means this whole – Trump’s first line of argumentation here, that you can’t disclose Grand Jury materials because an impeachment hearing isn’t a judicial proceeding – that argument is not a good argument.

Thomas:         Huh.  That’s so weird ‘cuz I was thinking it was gonna be like the opposite of this.  I was thinking, oh, you wouldn’t want it to be a judicial procedure because then there would be fewer rules about – so it’s actually the opposite?  You want it to be one so that therefore they can realease?

Andrew:         For purposes of 6(e) you do.

Thomas:         Huh.

Andrew:         And in fact, our law students and budding young lawyers who listen to the show, check out pages 19-22 of Trump’s brief in this case.  I’m obviously gonna link the brief in the show notes.  It is an illustration of what lawyers have to do when you’re sort of staring squarely in the face at a 2019 case that holds the opposite of the proposition that you want to argue.

Thomas:         [Chuckles]

Andrew:         Look, it’s not bad lawyering for what you have to do in terms of trying to distinguish the case.  I don’t think it’s likely to fall on very receptive ears, particularly not at the District Court level because Judge Beryl Howell does not wanna be overruled by the D.C. Circuit, so I find it highly unlikely that she is going to accept this incredibly tenuous connection to try and distinguish the McKeever case. 

Second Argument – Are we preliminary to an impeachment proceeding?

But that’s not the only argument Trump has!  And his second argument is a better argument.  Again, it still kind of runs smack into McKeever and Haldeman v. Sirica, but let me know what you think of this argument.

Thomas:         Alright.

Andrew:         It is-

Thomas:         [Laughing] I’ll be the judge of this!

Andrew:         There you go!  I want you to be.

Thomas:         Move over, Beryl!

Andrew:         [Laughing] Move over bacon, now there’s something meatier! 

Alright, Trump is saying even if it is we’re not there yet.  The Supreme Court has made it clear – because remember the 6(e)(3)(E) exception is “material that is preliminary to a judicial proceeding.”  Alright our first argument was impeachment isn’t a judicial proceeding.  You don’t buy that. 

We’re not preliminary to a judicial proceeding because preliminary, as the Supreme Court has made clear, does not apply to any stage prior to a potential judicial proceeding because then that would be no restriction at all!  Obviously anything could be preliminary to a judicial proceeding if you read it that way.  I punch you-

Thomas:         Yeah.

Andrew:         -well, that’s preliminary to a – right?  ‘Cuz you could sue me for assault. 

So the Supreme Court has said it must be (quote) “related fairly directly to identifiable litigation.” 

That’s a 1983 case called U.S. v. Baggett, and that case involved a tax audit.  In it, the Supreme Court said “look, an audit is not the same as a judicial proceeding.”  An audit is an administrative proceeding, that is the IRS meeting with you to review tax irregularities.  It can lead to judicial proceedings, could lead to both civil and criminal process against you as a result of the audit.  But the audit itself is just an audit!  You might go to the audit and the numbers work out just fine and nothing happens. 

So the Supreme Court said “that’s not enough, we’re not preliminary to a judicial proceeding, we do not have to release Grand Jury material in connection with an audit.  We’ll release it if the taxpayer is formally charged, but we’re not gonna release it at the audit stage.” 

That’s Trump’s argument with respect to impeachment, and here he’s taken a page out of the playbook of everybody that’s sued the President over the past three years.  It’s not a bad idea. 

He’s quoted, at length, the kind of mealy-mouthed statements-

Thomas:         Ah.

Andrew:         -that have come out of both sides of the mouth of – so even Jerry Nadler, for example, has said “an impeachment inquiry is when you consider only impeachment.”

Thomas:         Whether or not?

Andrew:         Yeah.  “That’s not what we’re doing,” (and again I’m quoting Nadler) “that’s not what we’re doing, we’re investigating all of this and we will see what remedies we could recommend including articles of impeachment but not limited to that.” 

In the pleadings, Trump says “look, the additional remedies include censure, legislative proposals, constitutional amendments, and a congressional referral to the Department of Justice for prosecution or civil enforcement.”  Then they quote from Pelosi, same thing.

Thomas:         So it’s almost like it would be beneficial for us to actually go forward with this impeachment stuff?

Andrew:         Yeah it kind would be, wouldn’t it?

Thomas:         Yeah.

Andrew:         It’s almost like being honest and upfront and saying “yes, we are Democrats, we care about the rule of law, this is very, very important to us and absolutely, we are looking at impeaching the President if the facts fit that and that’s why we want to see the Grand Jury material.”  That would have made a much better case here.

Thomas:         Alright, well we solved it!  Okay, Nadler, Pelosi, do it!

What’s next – sealed order

Andrew:         Yup!  So here’s what’s next.  There was a sealed order in this case issued yesterday!  I can’t read it!

Thomas:         [Laughs]  

Andrew:         [Laughs]  

Thomas:         Well I can help you with that, I know how to read!

Andrew:         No, it’s not that I’ve suffered a brain aneurysm.

Thomas:         I didn’t know basic reading was gonna be an asset!  Okay, I can do it!  I’ll field this one!

Andrew:         [Laughs]  No, I mean it shows up on the docket and then when I click on it says “you are not authorized to view this material.”

Thomas:         Aah.

Andrew:         I don’t-

Thomas:         Patreon goal, get Andrew authorized!

Andrew:         Get me authorized! 

Thomas:         [Laughs]  

Andrew:         That set additional – I can see from the docket entries that it also set an additional hearing date [Teeth clenched] but I don’t know when that is either! [Laughs]  So at some point in the identifiable future. 

Judge Howell has been aggressive and has been deeply connected to the Mueller investigation and all the ancillary proceedings so I assume that this will move quickly?  But I can’t read anything on the docket that was entered, so we will continue to monitor. 

This is yet another fun thing I do every week is I page through the dockets on some of our favorite cases, and this is now on our hot list and we will see what happens.

Thomas:         Alright!  Docket Watch! 

Andrew:         Docket Watch! Aw man that would be great!

Thomas:         [Laughs]  

Andrew:         Could we slide across a Ferrari?  Jump in the windows?

Thomas:         Yeah!

Andrew:         [Announcer voice] Docket Watch with Thomas and Andrew!

Thomas:         Or we just have some overproduced CNN, you know like they do for the elections [Intense music impersonation] Dun, dun, duckadun!  Jah, pshew!  Docket Watch!

Andrew:         There you go!

Thomas:         A million dollars’ worth of CGI for no reason, ‘cuz we make so much money if we’re CNN, on selling Trump controversy so we have nothing but money to burn on graphics?!  Sorry, I turned this into a rant on the news media making money off of Trump.  Never mind, never mind.

Andrew:         [Laughing]  Good point, though!  Alright, shall we take a break for an ad and then-

Thomas:         That’s a great idea!

[Commercial –, text “OA” to 484848 to get 30% off and free shipping

Yodel Mountain – Emoluments Litigation

Thomas:         Okay and now it’s time to talk about emoluments.  Everybody’s favorite weird word that I can’t get enough of.  What’s going on?  Update us.

Andrew:         [Laughs]  Yeah, this is big news.  We are gonna tease this out in a lengthy segment all its own, but I do want to kind of give everyone the top line. 

We talked about how the 4th Circuit and the District Court for the District of Columbia have rejected the various emoluments lawsuits against Donald Trump – those that were brought either in an official capacity by State entities, the one brought by Maryland and the District of Columbia, and those brought by private party plaintiffs. 

The private plaintiffs lawsuits are people who own other hotels and restaurants who were like “dude, this is supposed to be a capitalist economy and you’ve got the President of the United States going ‘boy sure would be nice if foreign dignitaries stayed at things that have my name on it.’”

Thomas:         Seems unfair, to say the least.

Andrew:         It does seem unfair, yeah! 

2nd Circuit Court reversal decision

The 2nd Circuit has just reversed a Southern District of New York decision that granted summary judgment in favor of Donald Trump and against the private emoluments plaintiffs and has permitted those plaintiffs to go forward on a theory that they have standing, that they have suffered cognizable injuries under the emoluments clause do to the activities of the President. 

This is really, really interesting and this is a rare opportunity for me to sort of delve into a legal argument that Donald Trump is making that is not preposterously stupid and corrupt. 

Thomas:         Well, I mean, let’s be real, he’s not making it.  Somebody who actually reads

Andrew:         Well, yes, but that someone is making on his behalf-

Thomas:         Gotcha.

Andrew:         -that nevertheless passes the straight face test.

Thomas:         Mm-hmm.

Andrew:         Which, again, low bar but one that Donald Trump and his lawyers manage to slink under pretty much all the time, so we’re gonna give this a lengthier segment but the top line headlines that you have read are correct. 

This is a very, very lengthy 2nd Circuit opinion that distinguishes the 4th Circuit’s opinion, says that the private plaintiffs do in fact have standing, articulates a different reason for it, we will break down all the law in that.  I’ve seen a couple of places that say this seems like it’s taking a shot at the 4th Circuit, I definitely don’t read it that way, I just read it as a split among the Circuits. 

The 2nd Circuit thinks that individual private plaintiffs do have the right to go forward against the President on an emoluments clause theory.  This is headed to the Supreme Court, so we’ll break all that down for you, but that is a continuing development on emoluments.

Thomas:         Oooh, okay.  You’ve got a lot of bullet points to get through!  You think you can do it?  We’re running out of time!  Are we lightning rounding?

Andrew:         I’m feelin’ good!  I’m feeling lightning on this!

Thomas:         Alright, my instant first vision was do you know what happens to toad when it gets hit by lightning?  From X-men 1 back in 200- whatever?

Andrew:         [Laughs]  Why does everybody think that’s such a terrible line?

Thomas:         Oh, it’s pretty bad! [Laughs]  

Andrew:         Same thing that happens to everyone else.

Thomas:         Well, channel your inner storm-

Andrew:         Halle Berry?  Ah, love Halle Berry!

Thomas:         Ooh, actually, yeah okay!  Please do! [Laughs]  

Andrew:         [Laughs]  

Yodel Mountain – LUPE Apportionment Lawsuit

Thomas:         My co-host Halle Berry is gonna talk about a new lawsuit regarding apportionment.

Andrew:         Yeah!  I’d like to say I hope that this was inspired by our segment-

Thomas:         Oh, 100%.  [Laughs]  

Andrew:         This is absolutely the kind of thing that we talked about in our “everything is awful and will be terrible forever” episode, which is that an organization, La Unión Del Pueblo Entero, which is LUPE, that is a labor organization formed by Cesar Chavez. 

Thomas:         Oh!

Andrew:         They have challenged the Trump executive orders requiring the Commerce Department to distribute citizenship data and collect citizenship data from other branches of government. 

We talked about how that data collection could potentially be used by a President Trump to apportion the legislative districts in a way the uses the census data while not replicating the census data.  So this is a fantastic lawsuit!  It is really, really – again, it was just filed so we’ll see what the Motion to Dismiss looks like, but I can tell you from reading the Complaint it’s really well drafted, there are five causes of action. 

The four are violations of the Administrative Procedure Act and one is an Equal Protection claim.  It was filed in the U.S. District Court for the District of Maryland before a good friend of mine, Judge Paula Xinis, somebody who is unbelievably intelligent.

Sidebar on judge’s weird names

Thomas:         Is there a single judge that’s just like “Judge Steve Johnson.”

Andrew:         [Laughs]  

Thomas:         Every name is like “wow, what a comic book name,” or something.

Andrew:         [Laughs]  

Thomas:         Beryl Howell – what was his name?

Andrew:         [Laughs]  Paula!  Paula Xinis, it’s X-I-N-I-S. 

Thomas:         [Sounding it out] Ex-een-ees, that’s like.

Andrew:         Paula.

Thomas:         Paul, oh Paula.  Okay.  It’s like Mxyzptlk. 

Andrew:         Yeah! [Laughs]  She and I were in the same class, summer associate class at Covington & Burling way, way back in the day.  So she is the current President of the Federal Bar Association, somebody that I know and deeply respect, and there may not be anyone in the State of Maryland whom I would rather have this case.  She’s somebody that is going to be thoughtful and thorough and I am very, very excited about that. 

The lawsuit was just filed which is why [Muttering] I thought maybe it was inspired by our show?  Right?  The executive order was months ago but this lawsuit was just filed, and we’ll continue to monitor.

Thomas:         Well why didn’t we file it? [Laughs]  We should just start filing these things!

Andrew:         Yeah, we should!  We need to start a civic advocacy group!

Thomas:         Oooh, Patreon goal!

Andrew:         Resurrect Cesar Chavez and have him lead it.

Yodel Mountain – Lewandowski Testimony

Thomas:         Alright, patron goal for sure!  Okay.  Are we ready for bullet number 4?

Andrew:         We are!

Thomas:         Alright, what’s happening with – does he pronounce it “Lev-an-dow-ski” or “Loo-en” “Leven?”  “Levandowski?”

Andrew:         I think it’s – I always say “Loo-endowski” but I-

Thomas:         I keep hearing it two different ways, I dunno why, but okay.  It’s just like thesaurus, it’s practically the same.

Andrew:         [Laughs]  So Corey Thesaurus – oh sorry, “thess-erus.”

Thomas:         [Laughs]  Yeah, what’s up with him?

Andrew:         Uh, he’s an obstructionist jerk and he turned his hearing before the House Oversight Committee into a sideshow circus which everybody should have anticipated that that was gonna happen. 

Now the question is, is contempt quote “on the table” and that sort of thing?  Yes, all of that should be on the table.  I want to direct folks to – I’m gonna link in the show notes – a piece by Elie Mystal over at Above the Law, somebody we have linked to before that is, it’s got both a glass half empty and a glass half full moment. 

The glass half full moment is that the non-televised parts of the Lewandowski hearing involved the House Oversight Committee giving half an hour of time to Barry Berke who just ripped Lewandowski up one side and down the other.  It’s really, really good.  So if you haven’t watched the video of that I highly recommend it, just type in Berke, B-E-R-K-E, Lewandowski – [Laughing] In fact I think if you type in “Barry Berke” it will be the number one hit because this is not a household name. 

So if you want to be optimistic on Yodel Mountain the fact that the Democrats are starting to get behind the strategy of “let’s bring in a lawyer instead of having a bunch of different members of Congress ask five minute questions in a stupid way” that’s a positive sign. 

The negative sign is Lewandowski and others have telegraphed what they intend to do before Congress and, as Mystal points out, if you knew this guy was going to show up and be in contempt of Congress – this is not like the President, this is not even like Don McGhan were he’s former Whitehouse council.  This is just a guy that Donald Trump likes!

Thomas:         [Laughs]  

Andrew:         Seriously!  He was never a Whitehouse employee!

Thomas:         Oh.

Andrew:         There is zero argument that executive privilege covers this guy, I’m trying really hard not to clownhorn here.

Thomas:         Yeah.

Andrew:         You absolutely 100% could have had the Sergeant at Arms walk him off-

Thomas:         The plank!

Andrew:         -in handcuffs.

Thomas:         Oh. [Laughs]  

Andrew:         Off the plank!  Off the rails! [Laughing] You could have arrested him on the spot for using Congress’ inherent sanction powers and they did not. 

I’m hoping – I wanna spin the glass 100% empty in the most positive way that I can which is maybe the backlash to Congressman Nadler over this will encourage Democrats to be more forceful in terms of holding these witnesses in contempt because we know the playbook. 

There is no reason now, if you are a Trump loyalist you should be emboldened.  You are watching people openly defy the law.  I can’t prove that they’ve been promised behind the scenes that they’ll get a pardon, but if you’re betting on publicly available information sure looks like Hope Hicks, Michael Flynn, Don McGhan, these folks are banking on a Trump pardon and while that’s sort of the operative view in the background that’s very clearly where Lewandowski thinks he’s heading.  So if that’s what they’re gonna do force the issue early. 

Thomas:         Yeah, make him use the pardon.  Make him pardon them for something, right?

Andrew:         Yeah, absolutely.  Absolutely, 100%.  Right now you are seeing – and this is the continuing theme – Democrats are just slow to realize that Trump has brought a gun to the knife fight and they’re like “well, I’m sure he’s gonna take out the knife soon enough.”  No!  It’s not gonna happen!  So those are my thoughts on Lewandowski.

Thomas:         [Sighs] What a frustrating world.

Andrew:         Yeah.

Yodel Mountain – Trump Tax Returns

Thomas:         Okay, fifth and final bullet point for Yodel Mountain – lots of yodeling, I’m sure the poor yodeler is losing his breath over here!

Andrew:         He is indeed! [Laughs]  

Thomas:         He’s been yodeling the whole time!  Taxes.  What does this mean?

Andrew:         Yeah.

Thomas:         We’re getting Trump’s taxes?  Tax returns?

Andrew:         Trump’s tax returns!

Thomas:         Oooh.

Andrew:         Lots of different fronts right now including a lawsuit filed this morning that I checked in our break between recording and it’s docketed but still not publicly available, still not downloadable. 

That is another lawsuit filed in the Southern District of New York by Manhattan D.A. Cyrus Vance seeking Trump’s tax returns.  That sits on top of (and let me take a deep breath so that I can get through all of these) [Inhale] the Mazars case which is pending before the U.S. District Court, which is pending before the U.S. Circuit Court of Appeals for the D.C. Circuit, the last filing in that case was on August the 20th so that ruling is due any day now, which will likely require Mazars, the accounting firm, to turn over Trump’s taxes. 

The IRS case before Trump appointee Trevor McFadden in the District Court for the District of Columbia.  In that case that’s going the other direction, Democrats lost – the House Oversight Committee lost a Motion to Expedite, there was a Motion to Dismiss filed by Donald Trump on September 6th and Judge McFadden can sit on that for forever and likely will. 

The other DDC case is a lawsuit brought by Donald Trump for declaratory relief challenging the New York State law that was passed in this past legislative session that would require all Presidential candidates to release their tax returns.  That has some interesting procedural stuff largely because the New York State defendants have moved to dismiss on grounds that it belongs in New York and not in the District of Columbia. 

Trump probably has the better of that argument from a rhetorical standpoint.  He’s like, “look this is not really a lawsuit between New York parties,” this is a lawsuit between the President of the United States and the real party in interest which is the House Judiciary Committee to which the New York parties have promised to immediately turn over Trump’s tax returns. 

So all of those things are all going simultaneously.

Sternly-worded transformer

Thomas:         We’re hitting a critical mass of sternly worded letters, is what you’re saying?

Andrew:         Yeah [Laughs]  and lawsuits!

Thomas:         They’ll all combine to a sternly worded Transformer-

Andrew:         Yes!

Thomas:         -that assembles-

Andrew:         A Voltron.

Thomas:         Voltron, thank you.  Thank you.  A sternly worded Voltron, and that’ll really show ‘em, right?

Andrew:         Lots of irons in the fire. 

Look, again, disaggregating is a positive thing because Mazars is a multi-State, probably even multi-National corporation worth billions of dollars and they’re not like Corey Lewandowski or even Michael Flynn.  Mazars, LLC is not taking a bullet for Donald Trump. 

So there’s all of these different irons in the fire, are ways at which we can continue to gather information.  I’m optimistic about that.

Thomas:         Alright, well there you have it!  Lightning!

[Commercial – for a free trial]

Whistleblower Teaser

Thomas:         Let’s move on to our final segment which I think will be more or less a teaser-

Andrew:         Yup.

Thomas:         But what can you tell so far about this whistleblower?  This is just hot off the presses today.  As of recording we don’t have much but what do we have?

Andrew:         Yeah.  We do not have the Complaint so we can’t analyze it. 

In terms of speculation I wanna link in the show notes, I’ve shared out on social media, there are two really, really good threads from friends of the show and people we trust; one from our friends over at Mueller She Wrote, one from our friend Asha Rangappa.  Read those, they’re better speculation than I can do because those folks are in the business of speculating and putting together breadcrumbs, I’m in the business of reading 300 page documents which we just don’t have. 

Adam Schiff confirmed that today, that he does not have – nobody has a copy of the actual whistleblower Complaint. 

Here’s what we do have (and I’ll link these in the show notes as well) we have the September 10th demand letter which was sent to the Acting Director of National Intelligence, Joseph Maguire. 

Then we have the September 13th subpoena because presumably Acting Director Joseph Maguire said no, requesting information regarding a whistleblower Complaint filed by a Trump appointed Inspector General claiming that there were significant and troublesome issues with communications between Donald Trump and a foreign leader.  That’s all we know for a fact. 

The salient piece of information there is – again, this is not an independent Robert Mueller and his “Thirteen Angry Democrats.”  What is salient here is this is a member of the Trump administration, somebody with everything to lose and somebody who very likely does not share much in common with the ideology of this show filing this Complaint. 

But until we see the Complaint I can’t break it down and I can’t do a better job of speculating than Asha and AJ.

Thomas:         Alright well I expect – hopefully there’ll be a longer segment about that at some point depending on what it turns out to be.  Really weird.  Uh, interested to find out more information for sure. 

But that’s the time we have, and it’s time to go to our First Timer Friday for patron thanks over at 

There’s so many good reasons to join.  Hey, we didn’t even talk about Law’d Awful Movies that just came out a couple of days ago!  That was a tremendous amount of fun!  The Lincoln Lawyer with Matthew McConaughey.  [Laughs]  It was as fun as it sounds, it really was!

Andrew:         [Laughing] Yeah!

Thomas:         So go check that out, pledge a buck or whatever and go listen to all the bonus stuff and get your patron shoutout and that’s what we’ll do right now.  Andrew, why don’t you thank our first timers on this fine Friday?

Andrew:         I will!  I wanna be very clear, ‘cuz I like being clear.  Law’d Awful Movies is a $2 patron perk.  I don’t want somebody to feel like they’re giving under false pretenses.  We will take your money at any level, but $2 bucks you get Law’d Awful Movies and we talk about our varying opinions of Matthew McConaughey and The Lincoln Lawyer, that was a lot of fun.

[Patron Shout Outs]

T3BE – Question

Thomas:         Thank you so much patrons, and we are going to hop on with next week’s guest for T3BE, here we go!

[Segment Intro]

Thomas:         Alright, it is time for T3BE but we are joined by a special guest, Representative Christy Clark from North Carolina, how ya doin’?

Rep. Clark:    Oh I’m doing great, how are you guys?

Thomas:         We are great, we are excited to have you for a little bar exam question today and then of course we’ve got a nice long interview with you on Tuesday’s show that we are really looking forward to because there’s an awful lot of [Laughing] news out of your fine State lately and we’re gonna break all that down-

Rep. Clark:    Indeed.

Thomas:         -on Tuesday’s show.  But in the meantime, sorry, now we’re frenemies because we’re goin’ head to head on the bar exam! [Laughs]

Rep. Clark:    [Laughs] Alright!

Thomas:         Ready to play?

Rep. Clark:    Sure!

Andrew:         Alright, here’s the question, and for the sanctity of the game the way in which it works is we always let Thomas answer first.

Thomas:         Let me go first, yup.  No one helps me! [Laughs]

Andrew:         That way he can’t – yeah, piggy back on your expertise here.  And we have Thomas and Representative Clark, we have a criminal law and procedure question.

Thomas:         Ah, my specialty.

Andrew:         So at least it’s not real property. [Laughs]

Here we go!  Four men are being tried for conspiracy to commit a series of bank robberies.  Nine successful bank robberies took place during the period of the charged conspiracy.  Because the robbers wore masks and gloves and stole the bank’s surveillance tapes-

Thomas:         Ah.

Andrew:         -no witnesses have been able to directly identify the robbers.  Some circumstantial evidence ties each of the men to the overall conspiracy.  During cross examination a prosecution witness testified that one of the men was in jail on other charges during the last six robberies.

Thomas:         Hmm.

Andrew:         That man’s lawyer moved for a judgment of acquittal at the close of the government’s case.  Should the motion be granted? 

A) No because a conspirator is not required to agree to all of the objectives of the conspiracy. 

B) No, because a conspirator need not be present at the commission of each crime conspired upon.

Thomas:         Hmm.

Andrew:         C) Yes, provided that the man has complied with the rule requiring pretrial notice of alibi. 

Thomas:         What?

Andrew:         Or D) Yes, regardless of compliance with the alibi rule because the government is bound by exculpatory evidence elicited during its case in chief.

Thomas:         Oh that really took a left turn there.

Rep. Clark:    Yeah!  [Laughing] It did take a left turn!

Thomas:         I was goin’ one way with it.  Uh, okay.  I mean, I remember from things we’ve talked about that this conspiracy stuff can be pretty – I don’t know what the word is but you can get people on conspiracy for just – if you’re the driver then you’re liable for everything that happens in the bank and that kind of thing. 

So it sounds like there are nine bank robberies, somebody – so one of the people charged with the conspiracy was … circumstantial evidence ties them but they were in jail for six of the robberies.  Okay.  They’re being tried for the whole conspiracy. 

Gosh, I don’t know how that works.  What if you had one guy who was just kind of a free agent for like half of ‘em, would you charge them with everything

So… okay, the man’s lawyer moved for a judgement of acquittal.  Okay, so A, no – I’ll go through the answers again here, see what jumps out at me. 

A, no because a conspirator is not required to agree to all objectives of the conspiracy.  I didn’t like that one as much ‘cuz the wording is kinda weird.  If I was going with a no answer I think I’d go with B, I liked it better.  No, because a conspirator need not be present at the commission of each crime conspired upon.  That’s a strong one I’m leaning toward for me, but then this bar exam!  Augh!  They take a total U-turn here or whatever!  No, I guess a 90 degree angle turn because the yes answers are like under a totally different logic. 

So C, yes, provided that the man has complied with the rule requiring pretrial notice of alibi?  I – ah!  [Laughs] I dunno!  What?  I have no idea!  

And D, yes regardless of compliance with the alibi rule because the government is bound by exculpatory evidence elicited during its case in chief.  So that’s kind of a weird – it’s weird for the bar exam to do this, it feels like.  There’s like two totally different things going on in these answers.  I … yeah.  I think this is gonna be one of those ones for me where I could not tell you the difference between the yes answers really. 

They seem to weird to me so I’m kinda just gonna lean toward B because I at least can grasp the logic of that answer, might not be right but it’s the one I feel the most comfortable taking a stab at, so I’m gonna guess B.  I eliminate A it doesn’t quite seem right to me, but B because you don’t have to be there each of the times.  So if the conspiracy is bank robberies and this guy did three of ‘em I feel like you could still be charged there.  I don’t know how that works exactly but it seems to make sense, so I’m going with B, no because a conspirator need not be present at the commission of each crime conspired upon. 

And not to mention, who knows, maybe he’s somehow helping ‘em plan behind bars?  I dunno, possibly.  I can’t really … If I were to pick a yes answer to guess on I guess it would be – I dunno.  I don’t like either of ‘em, actually.  Maybe I would say it’s between each of the no answers, so that’ll be my – if I’m eliminating two I eliminate the yes answers boldly.  Alright that’s my thought process, I’m going with B. Alright, lay it on me, what do you think?  How’d I do?

Rep. Clark:    [Laughs]  Oh, I’m sorry.  You know, I was kinda going down the same pathway that you’re going and kind of leaning towards B as well.  Um … My Rules of Civil Procedure – I’m pretty foggy on those.

Thomas:         Me too!

Rep. Clark:    So I didn’t know what to do with that one.  I think you’re right, I think the yes ones are off the table.  It’s either A or B and I too am leaning towards B.

Thomas:         Hmm, okay.  Alright!

Andrew:         Alright! [Laughs]

Thomas:         That’s a smart game theory, I feel like you’re not gonna be embarrassed either way.  Either we both got it right or we both got it wrong. [Laughs]

Rep. Clark:    Right.

Thomas:         That’s always a good choice!

Andrew:         [Laughs]

Thomas:         Well thanks so much for playin’ the game with us!  And tune in everybody on Tuesday’s episode to hear the answer and also a fantastic interview with Representative Christy Clark about all the nonsense [Laughing] that is going on with Republicans in North Carolina!

Andrew:         And if you wanna play along with Thomas and Representative Clark you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your answer and your reasons therefore and we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, that’s our show!  Oh, wow, what a Rapid Response Friday Andrew!  You got a lot, you squeezed a lot in there like no one else can, so great job! 

So much to keep an eye on and we will see you on Tuesday for a really good interview with North Carolina Representative Christy Clark.  You’re gonna want to hear it, it’s really interesting to hear a first person perspective of, not just the Republicans being horrible like we covered, but more stuff!  Just being a lawmaker, having run for office in the wave of 2018, all kinds of cool stuff.  Tune in Tuesday, we’ll see you then!

[Show Outro]

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