Show Intro

FLETCHER REEDE Your honor, I object.
JUDGE STEVENS And why is that, Mr Reede?
FLETCHER REEDE Because it's devastating to my case. (Liar, Liar (1997))

MICHAEL NORMAN SMITH I did, you know, the murders, but as you're all so looking forward to his I thought I'd plead not-guilty. (Pleasure At Her Majesty's (1976))

GOMEZ ADDAMS They say a man who represents himself has a fool for a client. Well, with God as my witness: I am that fool. (Addams Family Values (1993))

LIONEL HUTZ Mr Simspson, this is the most blatant case of fraudulent advertising since my suit against the film "The Never Ending Story" (The Simpsons: "New Kid on the Block" (1992))

LYDIA Welcome to Opening Arguments, a podcast that pairs an inquisitive interviewer with a real life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC for entertainment purposes, is not intended as legal advice and does not form an attorney client relationship.
Don't take legal advice from a podcast.

THOMAS Hello and welcome to Opening Arguments! This is episode one-hundred and fifty-nine. I am your host, Thomas Smith; that over there is your other host, Andrew Torrez. Andrew, how ya doing?

ANDREW I am great! I am really really excited, not only about this episode, but we're doing our live Patron Q&A tonight. If you're listening to this when the show drops on Tuesday, March 27th, we're gonna do our live Q&A at 8:30 my time, Eastern, 5:30 your time, Pacific, and you can figure out if you're in one of those other unimportant time zones between those two. –

THOMAS There will be an appearance by Baby Opening Arguments Smith!

ANDREW Oh!

THOMAS She's cute as a button, you don't want to miss it! So Andrew will be providing the legal knowledge, I will be providing the baby. That, that's a good -

ANDREW Yeah!

THOMAS That's all I have to offer …

ANDREW I'll see if I can't get my puppy to bark in the background!

THOMAS [laughs] Awesome, can't wait! Check that out, Patrons, it's the least we can do for your amazing support, I hope you enjoy it as much as we do. Alright, let's get right into it, shall we? I'm excited about today's episode, we're gonna learn a bit about Watergate and compare it to what's going on these days, and, of course we've also got an update on the Republican tax bill, and later on we'll have a listener question which - they're always good! We've got intelligent listeners, and those are always fun, so, fun episode, let's get started, shall we?

Closed Arguments

LIONEL HUTZ I rest my case.
JUDGE JULIE You rest your case?
LIONEL HUTZ What? I thought that was just a figure of speech. Case closed. (The Simpsons: "The Boy Who Knew Too Much" (1994))

THOMAS Alright Andrew, why is this a "Closed Arguments"? The continuing unintended consequences of the Republican tax bill, I'm very curious about where you're going with this one.

ANDREW Yeah, so one of the things that is just an undeniable fact about the Republican tax bill, whether you agree in broad measure with the idea that we should have cut corporate taxes in half and added a trillion dollars to the deficit, or you don't - you can probably figure out where we come in - is that the bill is a massive overhaul to the tax code that was rammed through in a record short time due to our political system. That is not a unique feature, right? Our legislature is pretty broken and, you know, you can argue about Democratic bills under President Obama, but the point is, this radically overhauled our tax system and most people who are lawyers like me, who deal with tax questions, accountant friends that I know, we're still trying to figure out everything that's in this bill. And I want to point out a situation where the deletion of one word in a very, very obscure provision of the tax code, is designed, a) to save 31 billion dollars, which was necessary in order to manipulate this tax bill under the -

THOMAS Yeah, to offset the trillion dollar deficits just enough -

ANDREW Yup!

THOMAS - where they could get it through. Yeah.

ANDREW and, b) where there are unintended consequences for Major League Baseball, the National Basketball Association, for all of the sports that all of us love and hold dear, this is a crazy wild ride, so hold on! [chuckles]

THOMAS Ooh, I'm excited! Okay!

ANDREW It begins with 26 U.S.C. § 1031, which –

THOMAS I know it well! [laughs]

ANDREW Yeah, yeah, yeah!

THOMAS No! [laughs]

ANDREW So Thomas will recite it from memory!

THOMAS Yeah, yeah! *clears throat* Let me think, here …

ANDREW I’ll get you started, it says -

THOMAS Yeah, go ahead -

ANDREW Yeah, it says “No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment.”

THOMAS Investment. Okay, yeah I was right there with you.

ANDREW Yeah, yeah, yeah! So, what does that mean? Well, it means two things. First, there is this niche little real estate business where real estate companies that owned commercial properties could swap out those commercial properties for residential properties and vice versa. It will not surprise you to know that Donald Trump is involved in that business. It also meant, however, that smaller businesses – usually smaller businesses – could exchange assets and not have to go through valuing the assets, selling the assets, buying the new ones. And, let me give you a real world example of how that comes to be. Sometimes, you’re an owner of a franchise and the parent company of the franchise is bought by another company.

THOMAS Hmm.

ANDREW And a classic example of this is the fast food chain Hardee’s, which is also –

THOMAS Oh, Carl’s Jr.

ANDREW Carl’s Jr.? I think out where you are, right?

THOMAS Yup.

ANDREW In the 1970’s they bought a huge fast food chain called Sandy’s, they bought a chain called Burger Chef, and in the 1990’s they bought Roy Rogers. And so in each of those cases, if you were the owner of a Roy Rogers franchise now all of a sudden you’re a Hardee’s franchise, so you’ve gotta swap out your sign that says “Roy Rogers” for a sign that says “Hardee’s”, you gotta swap out your, you know, one kind of grill for the other kind of grill – I don’t know, I don’t really eat at Hardee’s –

THOMAS Nah, it’s probably all the same crap! [laughs]

ANDREW [laughs]

THOMAS Uh, delicious crap.

ANDREW But you have all these assets, and without this provision in the code you’d have to say, “Oh, well, we’re selling the Roy Rogers sign, that’s worth this, we’re buying the Hardee’s sign, that’s worth this,” and you have to pay taxes on the difference. This “like kind rule” said, you know what, we can just re-fit your restaurant.

THOMAS Okay.

ANDREW Alright, so –

THOMAS So it’s trying to save a bit of, yeah, paperwork -

ANDREW Yeah, yeah, yeah! Right.

THOMAS - red tape, kind of, yeah – swap it out.

ANDREW Exactly. So what did the tax bill do? The tax bill inserted the word “real” into section 26, 10 U.S.C. 31.

THOMAS Oh.

ANDREW So now it says “no gain or loss shall be recognized on the exchange of real property” you know, blah blah blah. Right? So you have to exchange real property for other real property. In the law, the phrase “real property” does – is not to distinguish it from imaginary property.

THOMAS It’s real estate, like land?

ANDREW Yeah, exactly! It means land. So it preserves this position for people who do what Donald Trump does, right?

THOMAS Yeah.

ANDREW Which is, swap out land, but it eliminates the like-kind exchange for any other anybody, any business, that is exchanging personal property – non real-estate property that is owned by the business. So our Hardee’s franchise owner. So you might say, “well, that seems kinda weird that that would save 31” –

THOMAS Oh yeah, not - so you’re saying that not only does it add the real aspect, the real estate land aspect to it, it gets rid of the other thing.

ANDREW Exactly!

THOMAS Oh, wow.

ANDREW And that’s how it saves the 31 billion dollars.

THOMAS Oh my gosh.

ANDREW So now you’re gonna ask yourself, “alright, you promised at the beginning of this segment that this would have to do with Major League Baseball.

THOMAS Hmm.

ANDREW Because our listeners are huge sports fans. Here’s what it has to do with Major League Baseball. And I swear to you, this is not – I’m not making this up – now suppose, as happened, for example, the Miami Marlins trade Giancarlo Stanton to the New York Yankees for three terrible players.

THOMAS [laughs]

ANDREW Which really did happen in this off season. It was criminal! It was a terrible, awful trade. Do they have to pay taxes on the difference in value –

THOMAS Aw, man!

ANDREW - between Giancarlo Stanton and the garbage they got back from the Yankees? Now, you would say, “No, teams don’t pay taxes when they trade players!” But the reason teams don’t pay taxes when they trade players is because of a 1967 ruling from the IRS. In fact, in 1967, Major League Baseball wrote to the IRS and said “hey, if we swap one player for another is that – are we gonna have to pay taxes on bringing in that new asset?” and the IRS issued a ruling, and that ruling said “No. You know why you don’t have to pay taxes? Because of section 26 U.S.C. 1031. And it’s kind of –

THOMAS And it essentially it’s kind of a wash, right? As far as the federal government is concerned, you would think that just swapping players, you know, it’ll be offset one way or the other, wouldn’t it?

ANDREW You would think, but what you would have to do without this provision, without 26 U.S.C 1031 -

THOMAS Yeah, one team would have an increase in taxes and the other team would have a decrease, possibly, right? I mean you’d have to do all that -

ANDREW Yeah.

THOMAS -Transactions –

ANDREW You’d have to value the assets.

THOMAS Yeah.

ANDREW Right? And Major League Ba – how do you value an asset, right? What is the worth of Giancarlo Stanton? I wouldn’t want to have to do that. And think about it beyond the trade context, right? Like the last round of expansion in the NHL, right?

THOMAS Mmm.

ANDREW In which new teams come in –

THOMAS Uck.

ANDREW I’m with you on that, but –

THOMAS Yeah, my Sharks are - as of our recording – are just about to play the Vegas Golden Knights and the Vegas Golden Knights are one of the best teams in the NHL because of the way they did the expansion!

ANDREW [laughs]

THOMAS And they only added one team, and it’s to my division! To my team’s division! So that makes it harder for us to get to the playoffs. That’s what you were gonna talk about, right? The Sharks match?

ANDREW That’s exactly what I was gonna talk about!

THOMAS Okay.

ANDREW Yeah, what I’m gonna say is, if you think about it, if it were any other business, right? You would say, “okay, well, you’ve taken an asset, and you have transferred it from the teams that lost players to the Las Vegas expansion franchise,” they now have this new asset, shouldn’t they have to pay taxes on it? And the answer to all of these questions was settled by IRS ruling 67-380. So again, 1967. It’s been settled for 51 years. Which says, “yeah, look these are like-kind exchanges, no you don’t have to pay taxes on it.” I mean, could you imagine? Add to the complexity right now, particularly in the NBA with the salary cap, if a team, in order to decide whether to trade for a player not only has to figure out the contract, who they’re gonna give up, how they’re gonna pay, right? But now they’ve gotta figure out the differential value of the market values of the players in order to pay taxes to comply with the IR –right? Like it would clearly discourage trades in baseball, and that’s what Major League Baseball has said. And for 50 years they’ve relied on this IRS ruling, but the IRS ruling, in turn, relies on the old version of 26 U.S.C. 1031. By inserting the word “real” in front of “property” - Giancarlo Stanton was property of the Miami Marlins. He is now –his contract - property of the New York Yankees. But his contract is not real property! [chuckles]

THOMAS Yeah.

ANDREW He is not a piece of land! That ruling very clearly does not apply, and that justification does not apply, and so the NBA, and Major League Baseball – I’m gonna link this New York Times article – have asked the IRS, “are you going to tax us on trades?” and the IRS has said nothing.

THOMAS Oh.

ANDREW The IRS has refused to answer. The chairman of the senate finance committee, who is Utah senator Orrin Hatch, has refused to comment. Nobody knows.

THOMAS Wow.

ANDREW Nobody knows whether teams can trade players thanks to the operation of the GOP tax bill that was crammed through the senate at the end of 2017. So I find this unbelievably strange as an unintended consequence. Maybe our listeners will or won’t sort of share in that shock, but -

THOMAS Yeah, that’s incredible! One word in a – changes a 50 year precedent! Oh man.

ANDREW Yeah. This is what happens when – because -

THOMAS Sometimes there are magic words!

ANDREW Yeah! I mean, what happened in the creation of this tax bill was everybody was racing to try and figure out how to offset as much revenue as possible, because you needed to get this under the reconciliation rules, and when you do that – when you start striking down and modifying provisions, there is an entire edifice that’s built upon that, and this is why maybe you shouldn’t ram through a complete overhaul to the tax code in a week and a half at the end of December. But that’s a different show!

THOMAS Oh gosh. So frustrating. Well, yeah, that’s really interesting. I guess so. So what happens when the IRS doesn’t say? I mean, do you just go on as normal?

ANDREW You don’t – like, literally, you have guess, right?

THOMAS Yeah.

ANDREW This is advice I give to my clients all the time. If the government is silent, if there are no operative restrictions, then what you have to do is you have to look at it and go “yeah, our best guess is, uh, this” but you need to put error bars around that. You need to do that to be sure. I would, if I were a lawyer for Major League Baseball, for any of the major sports franchises or any individual teams, which – by the way, if you’re looking for outside legal counsel, give me a call! I’d love to do that!

THOMAS [laughs]

ANDREW [chuckles] I would advise them that they’re gonna have to reserve and potentially pay taxes on this.

THOMAS Wow.

ANDREW I would advise them to take that into account because it is very clear, right? The in-kind exchange rules do not apply to personal property. That’s what I would tell them.

THOMAS No longer, yeah.

ANDREW Are they gonna get a change between now and 2019? They might, right? Sports teams have a pretty good track record at being able to lobby, being able to lobby congress.

THOMAS Yeah.

ANDREW But as of right now, that’s the law. That’s where we stand.

THOMAS Wow.

ANDREW And it’s a lesson about messing with laws you don’t understand!

THOMAS I mean, thank god they didn’t do the same thing – yet – with healthcare and just ram through a total repeal and replace that no one had any plan for in like a week.

ANDREW Yeah, right?

THOMAS Who knows how many equivalent scenarios that are even worse that would come to pass? Alright, well very interesting breakdown. That’s a closed arguments, and now we’ve got to get to Watergate! I’m excited, let’s learn more about this!

Watergate

JOHN OLIVER Stupid Watergate *audience laughter* a scandal with all the potential ramifications of Watergate, but where everyone involved is stupid and bad at everything! (Last Week Tonight: "Stupid Watergate (2017))

RICHARD NIXON Don't get the impression that you arouse my anger.
ROBERT PIERPOINT I'm afraid, sir, that I have that impression.
RICHARD NIXON You see, one can only be angry with those he respects.
(Press conference Oct 26, 1973)

THOMAS Andrew, okay, so Watergate was… bad. Is that -

ANDREW [laughs]

THOMAS Is that your claim?

ANDREW Yeah, I think all of us agree Watergate was bad, but I’ve seen a lot going around that suggests that, yeah that’s – well, Watergate was bad, but the things Donald Trump are doing are, you know, totally different -

THOMAS Mm-hmm.

ANDREW There’s – I don’t understand – I had probably two dozen people tweet at us in response to the Stormy Daniels episode that said “oh, well,” you know, “he’s not gonna get arrested for adultery” and, you know what, “Oh, so he’s gotta pay an FEC fine, you know, who cares, you don’t impeach a president over that.”

THOMAS Mm-hmm.

ANDREW So I thought it might be – alright, we’ve got a precedent of one, let’s go back and find out, right? Because we have the successful impeachment but failed conviction of Bill Clinton to which we have compared and, again, to drive that lesson home, the distinction between Donald Trump and Bill Clinton is you heard Monica Lewinsky’s story because Bill Clinton did not form an illegal LLC with the purpose of trying to cover up and buy Monica’s silence.

THOMAS And by the way, even if they were equal, which, you’re right, they’re not. Even if they were, he still got impeached. Clinton still got impeached, so -

ANDREW Correct.

THOMAS They could still do that part, right?

ANDREW Correct

THOMAS [chuckles] but anyway – They’re not equal.

ANDREW They’re not. It’s far worse – and I’ve been on record – if Bill Clinton had done that then I think there is no doubt that the senate would have voted to convict.

THOMAS Mm-hmm.

ANDREW And I would have been there. I would have been right there with that. Of course that didn’t happen! Because there are very few presidents in our nation’s history about whom you would say “I can envision this person circumventing – that the nation’s chief law enforcement official has decided to knowingly and willfully circumvent the law.”

THOMAS Right.

ANDREW I think you ought to care about that.

THOMAS But one such president who you might have thought that about would be…

ANDREW Richard Nixon!

THOMAS Maybe one Richard Nixon! Yeah! [chuckles]

ANDREW So let’s hop in the metaphorical time machine!

THOMAS Hmm.

ANDREW The actual time machine only works for TTTBE.

THOMAS Yeah.

ANDREW But our metaphorical time machine is gonna take us back to 1972, before either of us were born, and it begins with a fellow named G. Gordon Liddy, who was the finance counsel for an outfit called CREEP, the Committee to RE-Elect the President.

THOMAS [laughs]

ANDREW Yes! I think he named it that on purpose! In early 1972 he came up with a scheme to re-elect the president. Here’s – that plan went through – he had all sorts of unbelievably crazy ideas but ultimately here was the scaled down version of that plan. And that was that on May 28 of 1972 – and, again, I want to point out that this is while the election is taking place. Richard Nixon is the incumbent president, he is running against George McGovern, the election will take place in November. So in May, Liddy hired a guy to break into DNC headquarters at the Watergate complex and install listening devices into the phones of two people. And again, this is 1972, so the phones are physically plugged into the wall, and the listening devices are – I’m not kidding – the thing you put in the socket is like the size of a marble, but then it has to be connected via a wire to something that is the size of a hard back book!

THOMAS Wow.

ANDREW So, again, this is 1972, you know, the James Bond technology was pretty limited. They got away with that!

THOMAS Yeah.

ANDREW With that bugging. But because it’s 1972, the recording devices that were installed were huge and crazily unreliable and so they had to be fixed. They were not producing any reliable information. And history is not really clear on a) what the purposes of the listening devices were, right? They were, okay, listening to the strategy of the two chairmen, but it’s not really clear what data they actually got, what information they actually got. Or how the devices went wrong. But either way, after a couple of weeks they had to be fixed, so on June 17th they needed to break in again to fix the devices, and that’s when they got caught!

THOMAS Oh!

ANDREW And, by the way, they got caught by a rent-a-cop security guard who -

THOMAS [chuckles] Yeah, Paul Blart!

ANDREW - at the Watergate Hotel Complex, who noticed that they had put tape over certain locks on the doors, like, duct tape, right? [chuckles] And the firs walkthrough – not just that he noticed it, but the security guard was walking through, and he was like “oh, that’s weird, why is this lock taped?” but instead of calling someone, he was just like “I’m gonna take that piece of tape off.”

THOMAS [chuckles] Yeah.

ANDREW A hundred – I’m not making this up – he pulled the tape off and then continued kind of his walk through -

THOMAS Well, I mean, what does he know? He’s just a security guard for a hotel, right?

ANDREW Eh, if I discover that the lock had been locked open, you might? I don’t know, but anyway, he came around an hour later and noticed that the tape was back on!

THOMAS Okay, now maybe you call somebody.

ANDREW And at that point, right? He called the police. And the police came to the premises and they caught five people red handed. Okay? And one of the five burglars was a guy named James McCord, the other four were these Cuban special operative guys, okay? McCord had in his address book the name of another CIA guy, E. Howard Hunt, and E. Howard Hunt worked for Gordon Liddy. And that’s it! Okay, there was zero direct evidence between any of these people and Richard Nixon. And, by the way, these guys were caught in June of 1972. They were caught during the election. The five burglars, Hunt and Liddy, who, again, that was a top Nixon aide, they were all indicted in September of 1972 and that had zero effect on the election at all. In November, Nixon won 49 states, he won 61% of the -

THOMAS Yeah, that’s what’s so funny about it. They didn’t even need to be doing any of this!

ANDREW Yeah!

THOMAS He was easily going to win!

ANDREW Yeah, Liddy has said on the record that he thinks that the motivation was for Nixon to win the largest electoral landslide in history.

THOMAS Oh man.

ANDREW He wanted to win all 50 states.

THOMAS That’s so Trump-ian!

ANDREW [laughs] Uh, yeah! So there we – that’s the underlying crime. The crime is a couple of dudes, far removed from the president, put tapes on the lock, went into the Democratic headquarters, and installed some old-timey listening devices that didn’t produce any useful information, went back to try and fix it, and got caught. That’s it.

THOMAS Mm-hmm.

ANDREW Now -

THOMAS Well, I mean, is that really? Wasn’t it eventually clear that the president was more directly involved in it? It wasn’t just people – maybe you’re gonna go on to talk about this, but -

ANDREW I mean, yeah, absolutely. But people are saying – are contrasting, or are arguing, that the underlying crime that we are talking about, which is setting up a fake LLC to pay hush money to a potentially dangerous witness ten days before an election – “oh, well, that’s not – that’s a minor FEC violation”

THOMAS Yeah.

ANDREW And if you want to argue on the basis of the underlying offense, I think it would be hard pressed to argue that the underlying offense is significantly different in either case.

THOMAS Right.

ANDREW Now, election happens, Nixon wins 49 states, now it’s 1973. And the first thing that happens in 1973 – again, Nixon is already president, so he doesn’t have to be sworn in – he reaches a peace accord in Vietnam and his approval rating goes up to 68%, okay? So, again, let’s keep this in context. The public knew there was a scandal involving a break in at the Watergate, and they by and large didn’t care, right? The reaction was, “oh, well” you know, “this is kind of whatever it is.” In April, 83% of the American public had heard or read about Watergate. And presidential aides had already resigned. John Ehrlichman, H.R. Haldeman, they had resigned. So, you know, look. This thing had some traction but Nixon was still in – his approval ratings didn’t dip below 50% until May. And what happened was, at that time, the primary distinction between 1973 and today is the Democrats controlled the House of Representatives and the Senate, and so they began hearings in the House of Representatives about Watergate, and they were televised. And at the time, right, because it’s 1973 there are literally three channels to watch on television, and so 85% - estimates are between 70 and 85% of the American public tuned in to watch the Watergate hearings, and Nixon’s popularity started to go down. It hit a low of 31%, right, which is kind of Trump territory, even sub-Trump territory.

THOMAS I was gonna say, that’s sort of a bad day for Trump, I guess.

ANDREW Right. So the televised Watergate hearings did drive up – it drove his approval rating into the 30s, it resulted in, you know, contemporary polls showed that people came to believe that Watergate was a serious matter and all of that, you know, but after the summer, in October of 1973, most people – even though they disapproved of Richard Nixon – the majority of Americans didn’t believe that he should leave office, let alone be impeached. So Gallup poll in October of 1973 was that 26% thought he should be impeached and forced to resign, 61% did not.

THOMAS Huh.

ANDREW And a majority of Americans viewed the Watergate hearings as partisan, biased, and out to get the president, okay?

THOMAS Wow.

ANDREW Republican pollsters found that just 9% of the electorate listed Watergate as the top issue confronting the country, 42% listed inflation, right? So -

THOMAS Wow.

ANDREW - the general view of people was “okay, there are these hearings, I get it, there’s a thing and then yeah, Libby worked for him, but I don’t know that that’s impeachable.” At the same time, because of the seriousness, the US Attorney General, Elliot Richardson, had appointed a special prosecutor, Archibald Cox, and the former presidential white house counsel, John Dean, who is now an MSNBC contributor and a very interesting voice to follow, had resigned, which has some pretty interesting parallels to today, and John Dean had spilled the beans and testified at length that Nixon knew about the break in, that he had directed that his campaign pay hush money to cover up the break in – by the way, that hush money, $25,000, which is just about $150,000 in today’s dollars!

THOMAS Oh wow! The price of hush money, pretty consistent!

ANDREW Yeah, apparently that’s the going rate! [laughs]

THOMAS Yeah, adjusted hush money! [laughs]

ANDREW And Dean had let slip – didn’t say, “oh by the way Nixon tapes everything in the White House,” – but had made an offhanded remark about “ah, well the tapes showed this” and Walter Cronkite had asked him, “what do you mean, tapes?” Right? And Dean said “oh yeah, Nixon tapes everything.” And so Cox issued a subpoena to Nixon requesting 80 – what was ultimately 86 separate recordings, taped conversations from the oval office. And the president refused to comply with the subpoena. He made two arguments: The first argument was that as the president he was immune from compulsory process because of the separation of powers, so courts can’t tell a sitting president what to do, and the second argument he made was executive privilege, right? These tapes contain my deliberations with my top officials and they are therefore absolutely immune from discovery and the argument was that any limitation on executive privilege, that the determinate rest with the executive branch. So in other words, he would get to decide -

THOMAS So they get to decide what’s relevant?

ANDREW [laughs] Right, yeah.

THOMAS “Here, we’ve got some fuzz and silence you can listen to.”

ANDREW Here’s some room tone. Yeah, right.

THOMAS Yeah.

ANDREW And so, as you might imagine, that went to court, and in August district judge John J. Sirica entered an order that required Nixon to hand over the tapes, that was appealed to the D.C. Circuit, which then ruled en banc, seven-nothing, that Nixon had to turn them over. I’m gonna link that decision in the show notes. That was October 12th, and the D.C. Circuit broadly rejected both of Nixon’s arguments. They said, with respect to separation of powers that “though the president is elected by a nationwide ballot and is often said to represent all of the people, he does not embody the nation’s sovereignty. He is not above the law’s commands. With all of its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be bound by the law. Sovereignty remains, at all times, with the people, and they do not forfeit through elections the right to have the law construed against and applied to every citizen,” and that includes the president. That is still good law today.

THOMAS Alright.

ANDREW With respect to privilege, they said, “No. The executive privilege is not absolute and it certainly does not outweigh the compelling need of a grand jury to proceed to a criminal investigation.” We’ve actually talked about this in a previous episode. So, generally president’s have to comply with valid court orders, and specifically the Court can require the president to comply with a subpoena in order to further a criminal investigation, even if there is no criminal investigation of the president, let alone when there is one. That’s still good law. And so -

THOMAS Yeah, there’s a lot of “still good law” out of the Watergate era.

ANDREW Yeah! And so the Nixon administration was kinda stuck. This is my favorite bit of this story, it has nothing to do with today, but on October 19th, one week after the decision comes out – the decision comes out on a Friday, a week later Nixon makes this offer: he says, to Archibald Cox, he says “I’m not gonna give you the tapes, but what I’m gonna do is, I’m gonna give the tapes to Senator John Stennis of Mississippi and I’m gonna let him listen to the tapes and summarize them, and give you that.” Okay?

THOMAS Wow.

ANDREW John Stennis – now he’s like “John Stennis is a democrat!” Now, John Stennis was a racist Dixiecrat, and also John Stennis was almost certainly deaf at the time Nixon made this offer, and it was truly, like, Trump-ian in its nature. Like, I’m gonna have this deaf racist guy transcribe these tapes. [chuckles]

THOMAS Yeah, from what I remember from the tapes, there’s a lot of anti-Semitism and racism in there.

ANDREW Yes.

THOMAS So it makes sense that he’d want a -

ANDREW Yeah.

THOMAS Here, let me let a Klansman listen to this and just see.

ANDREW [laughs] Yup. Shockingly, Archibald Cox refused that compromise, and then there was this question of, “okay, so now what’s Nixon gonna do?” And the answer is, that Saturday he called up his Attorney General, Elliot Richardson, and said, “I want you to fire Special Prosecutor Archibald Cox.” And the Attorney General said, “Mr. President, I’m not gonna do that.” And he said, “No, I’m directing you to do that,” and so Richardson resigned. So then, Nixon called up the Deputy Attorney General, William Ruckelshaus, and ordered him to fire Cox, and Ruckelshaus refused and resigned. So Nixon brought in Solicitor General, who’s third in line at the Justice Department and our friend from last week, Robert Bork! [chuckles]

THOMAS Oh jeez!

ANDREW Solicitor General, I should point out that the job of Solicitor General is to argue in court on behalf of the administration. Alright? It is not to -

THOMAS It’s not to make personnel decisions?

ANDREW Correct. So, sent a limo, brought Robert Bork to the White House, swore him in as acting Attorney General, and then told Robert Bork to fire Cox. And Bork said, “sure boss!”

THOMAS [chuckles] What a guy!

ANDREW And in fact, Bork, in response to media inquiries the next day, issued this statement, which was, “All I will say is that I carried out the President’s directive.” Which I’m going to link the Washington Post article from October 21, 1973. So Bork fired Cox that night. That’s a Saturday night. Cox’s office and his press aides, the Deputy Prosecutor who remained there, held a news conference and read the following statement, which I want to read for our listeners, which is, “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.” This was called the Saturday Night Massacre, and ultimately 50,000 people wrote in to the government, 21 members of Congress introduced resolutions calling for President Nixon’s impeachment, and so within a week and a half Nixon instructed Robert Bork to appoint a new prosecutor, they appointed Colonel Leon Jaworski, and the reason they did that is that two weeks after that, on November 14th, a Federal District Judge, Judge Gesell, ruled that the firing was illegal. So, look, they knew -

THOMAS Huh.

ANDREW - they were about to be reversed in Court. Could they could have then appealed the ruling? What they decided to do was, you know -

THOMAS So wait, the firing of the special prosecutor was illegal?

ANDREW Yup. It was illegal because the special prosecutor could only have been fired for cause.

THOMAS Oooh…

ANDREW That statute has been changed.

THOMAS Oh.

ANDREW So we can’t rely on that decision.

THOMAS Oh that’s not good.

ANDREW And I’m not arguing we should rely on that decision. So, in order to kind of head off that decision, they appointed a new prosecutor, they appointed Jaworski. Jaworski was a really interesting guy. He had this kind of strange past, he was the personal lawyer for Lyndon Johnson, and I don’t know if you’ve ever read Robert Caro’s “The Path to Power?”

THOMAS No.

ANDREW I highly recommend it. It’s one of my all time favorite books. And it talks about how Lyndon Johnson won the 1948 congressional election, and if you read Caro’s book, you will come away with the – I mean, it is a slam dunk case that they stole that election.

THOMAS Oh?

ANDREW It was out-and-out fraud. There are photographs in there of this key precinct, right? So it was down to 190-odd votes, so they took a precinct and they took the tabulated sheets, which said – and I’m making up the number here, the important thing is it begins with a seven – it began like 732 votes, and they drew a circle around the seven and turned it into a nine, and when they went to the actual voting rolls they added 200 people to the voting rolls, but they took them off the voting rolls in alphabetical order. [chuckles]

THOMAS Wow.

ANDREW So the argument that was – and then what Caro does – they’re all in the same handwriting, they’re all in the same pen color, and they’re – it’s like “Andy Ableson,” right? They’re listed in alphabetical order, when what this is is meant to be a check-in record of when they voted, so there’s no time next to it, but what Caro did was he looked up the last guy on the list, let’s call him “Thomas Smith,” and he tracked him down and said, “Hey, Mr. Smith, do you remember voting in 1948?” And he was like, “Eh, I was definitely the last guy, I voted at 6:59 and the polls closed at 7:00,” and then Caro says – and I’m ad-libbing – and Caro says “so, in order to believe that this is an account, you would have to believe that 200 people lined up,”

THOMAS In alphabetical order?

ANDREW “at 7:00 pm, in alphabetical order, to vote for Lyndon Johnson.”

THOMAS Wow. I had no idea!

ANDREW So Jaworski defended Lyndon Johnson, and got him off against charges that the election was fraudulent, and got him off. And so a lot of people were pretty suspicious of Nixon and Bork appointing Jaworski. But, as it turns out, in an analogue to Mueller, Jaworski kept Cox’s staff, he conducted a thorough and fair investigation, and he re-issued the subpoena to Nixon requesting the tapes. That was then ultimately appealed all the way up to the Supreme Court and once the Supreme Court ruled 8 to nothing that Nixon had to turn over the tapes, then that was, you know, several weeks before the end.

THOMAS Mm-hmm.

ANDREW Nixon was clearly about to resign. Jaworski went on, by the way, he was the – he joined up with William Fulbright to turn the law firm into Fulbright & Jaworski, which is what it was known as when I was applying in law school, one of the kind of white-shoe firms that I was looking at, and today they are now known as Norton, Rose, Fulbright, which is a 4,000 lawyer, global law firm. They are Covington & Burling type, they’re up there, top notch, multi-national - So there’s the history of the Saturday Night Massacre. There’s a ton more that we should talk about in future episodes, of what the tapes showed and why they were so damaging, but the lesson that I want to draw here is kind of twofold: Number one, firing the prosecutor really was the beginning of the end for Richard Nixon, right?

THOMAS Yeah.

ANDREW It tanked his approval rating to 25% and afterwards, the next poll that was conducted was an Oliver Quayle poll for NBC news, and it showed 44% of US citizens favored impeaching Richard Nixon, 43% opposed, 13% undecided. So a 15-point swing in “should Nixon be impeached?” In November the Gallup poll showed about the same thing, about 40% favoring impeachment, and that kind of leads to the second thing, which was October, November, right, late October, November of 1973 was when Nixon’s support tanked all the way down to 25%, he didn’t resign from office until August of 1974. It took ten months, and, by the way, if you look at the graph – which I’ll link in the show notes – he didn’t budge from 25% from – you know, there’s some variation up and down – but it’s not like he ever went into the 40s or 50s after that, the public knew. They’d made up their mind on the Saturday Night Massacre, “this is appropriate, this is the bridge too far.”

THOMAS I tell you what, though – I’ll tell you what. He didn’t have Fox News.

ANDREW Yeah. No.

THOMAS He didn’t have an army of propagandizers, you know, making the case, though “oh this Mueller’s unqualified,” “it’s a breach of” – 24/7, so I don’t know.

ANDREW I am not – I am very explicitly not doing this as a “Prediction Segment.”

THOMAS [chuckles]

ANDREW You and I have been disappointed pretty routinely for 16 months now, I am doing this as a call to action. And I am saying that what made Nixon impeachable, what led to Nixon resigning, was the fact that he plainly abused the powers of his office by directing his subordinates to fire the special prosecutor.

THOMAS And -

ANDREW There was no distinction -

THOMAS - Correct me if I’m wrong. Republicans could have kept him in, they could have – because it’s not – I don’t think Democrats had whatever it is – 60, what do you need, 66? For a conviction?

ANDREW Yup.

THOMAS I’m pretty sure they could have kept him in, and – cutting to the end of the story, the point is the case that we need to make is Republicans actually need to hold Trump accountable or, if the same thing were to happen with Trump, I mean, there’s nothing to stop him getting away with it unless the Republicans decide to stop him!

ANDREW Yeah, that is exactly right! Look, that’s why I added that second part, which is, when Trump is at 25%, right? Trump – that’s a nice malapropism – when Nixon was at 25% that was an approval rating of 50% from Republicans, right?

THOMAS Yeah.

ANDREW And look, that’s bad, but that is still saying “you’ve got half your base” and so it was always the question of how much of our base is going to hold? Yeah, the Democrats only had 54 seats in the Senate in 1974, so it could not be on a partisan basis. We said this in the very first episode in which we introduced Yodel Mountain, right? What makes it ultimately accountable is when Republicans say, “yeah, I can’t back this guy anymore.” And what I want to encourage – I know I’ve encouraged a lot of, “hey, these things, the Wheels of Justice grind slowly, the Mueller investigation is gonna take a long time,” I want to continue to re-iterate that. In no way am I saying we should be complacent, we should be vigilant. That’s why we do this show twice a week! That’s why we’re out there promoting our episodes and talking about these serious issues. The other side has a vested interest in getting you to feel like, “oh well look, if this hasn’t resulted in this by now then there’s nothing there, and we just have to give up and it’s all over.” And I get that! I’m frustrated! As you heard last Friday, I’m frustrated that Donald Trump has conceded in open court that he is “DD” and yet the press doesn’t seem to have figured it out. That makes it incumbent on us to make sure that they stay on that, but don’t give in to despair because even when the tipping point happens, even when the smoking gun comes out, it can take a while. And it can take a while to unwind those things.

THOMAS Yeah.

ANDREW I am hoping that an analogy is in, just as John Dean started spilling the beans in 1973, we learned today that the President’s lawyer, John Dowd, has resigned from his team, and John Dowd – we’ve talked about him – he was the fantastic legal mind that brought down Pete Rose, he was the author of the Dowd Report, it was a little bit depressing for me to see him line up and be the President’s personal lawyer on the Mueller investigation, and Dowd has finally had enough.

THOMAS [chuckles]

ANDREW I can only hope that he is the John Dean of our generation.

THOMAS Well, but is he, so he – how much is – I think you’ve answered this before, but when you quit how much – it’s not as though Trump loses all of the, you know, attorney-client privilege they had, right?

ANDREW Oh no, it would very clearly violate attorney-client privilege if John Dowd were to talk about any matters with which he has consulted with the President. My hope is that John Dowd is 238 years old, he has had a long and storied career, he does not need to practice law anymore, and -

THOMAS Oh, so he could just eat it. He could just take the disbarment!

ANDREW My hope is that he takes the disbarment.

THOMAS Oh, okay.

ANDREW It was very clear – and again, I want to go back to the Dowd Report, it was very clearly important to him to preserve the integrity of the game of baseball. It was crucially important to him to document that Pete Rose had gambled on the Cincinnati Reds while managing the Cincinnati Reds, because in his view, if that were left as an open question, then to Dowd you could never trust a baseball game again. It would permanently destroy the institution of baseball. And if you feel that passionately about Major League Baseball I can only hope that you feel that passionately –

THOMAS [laughs]

ANDREW - about the United States government. Maybe he doesn’t!

THOMAS Augh. Yeah.

ANDREW But we’re several hours in, so we will see.

THOMAS We’ll see.

ANDREW We’ll see what John Dowd does, but gosh I hope so!

THOMAS Well, good line to go out on! [chuckles]

ANDREW I could also go out on the likely candidate to step up and fill the void. So the reports that I’ve seen are that Jay Sekulow is gonna take over as head of Trump’s legal team dealing with the Mueller investigation.

THOMAS Oh.

ANDREW And Jay Sekulow is a moron!

THOMAS [laughs]

ANDREW Jay Sekulow is truly one of the stupidest lawyers I have ever seen.

THOMAS Wow.

ANDREW I know I’m saying that a lot, but it -

THOMAS But hey, that’s what Trump attracts. It’s … not the best people.

ANDREW [laughs]

THOMAS Trump’s not giving us the best people.

ANDREW It’s not just because, you know, Sekulow has started the American Counsel for Law and Justice, the Pat Robertson evangelical equivalent of the ACLU that has tilted at windmills – I mean, every time this man speaks about the law I feel like you could run circles around him, so -

THOMAS [chuckles]

ANDREW So, yeah, we’ve got that coming too, if it’s Sekulow.

THOMAS Oh I can’t wait.

ANDREW But I really want to put our hopes in John Dowd, so however -

THOMAS So that’s it for Part One of the Watergate history, there, but it looks like we’ve got enough for a solid Part Two later on down the road.

ANDREW I think we do.

THOMAS Alright, well thanks for the breakdown, Andrew! Very interesting stuff!

Listener Questions

THE SPHINX He who questions training only trains himself at asking questions.
MR FURIOUS Wha-what?

THOMAS Alright, listener question time! Paul Wheely [sic] asks: I have questions about the meaning of Article IV, Section 4 of the Constitution, the “Guarantee Clause” which states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” What practical effect does this have on how State governments can function?

ANDREW Hmm.

THOMAS Interesting question. So is that just, kinda words that are just “alright, doesn’t do anything,” or does that have any tangible effect on government?

ANDREW Yeah, and you might imagine, that seems pretty clear language, why haven’t we cited this particular provision, the Guarantee Clause, in our redistricting segments, right?

THOMAS Yeah, I was gonna say, for gerrymandering and stuff.

ANDREW Yeah, and the answer is, for over 150 years the Supreme Court has said that that provision is what they call “nonjusticiable.”

THOMAS Hmm.

ANDREW Which is to say, it means nothing!

THOMAS You can’t “justish” it.

ANDREW It means that the Courts don’t have jurisdiction over it. It is a provision that applies to Congress. And all of that comes from an 1849 case called Luther v. Borden, 48 US 1, I’ll link it in the show notes for all of our fans that enjoy reading 19th century cases, this is a weird case, okay? So here’s what happened in Luther v. Borden – it involved a time in American history called the Dorr Rebellion, and if, like me, it’s been a long time since you’ve taken US history, you might have to go to Wikipedia and refresh your recollection as to what the Dorr Rebellion was – it was in Rhode Island, in the middle of the 19th century, you had to not only be a white man to vote – which was typical of the United States at the time – but you had to own real property.

THOMAS Right.

ANDREW This was called “being a freeholder” in the parlance of the Supreme Court at the time. And so people literally took up arms and tried to overthrow the – what was called the “Charter Government” of the state of Rhode Island, and here’s the unique – because I did not know this at all, I probably knew it back in high school, but I did not have this at my recollection until researching this question. Prior to 1843, Rhode Island didn’t have a Constitution.

THOMAS [laughs]

ANDREW So let me quote from Luther v. Borden, “when the separation from England took place, Rhode Island did not, like the other states, adopt a new Constitution, but continued the form of government established by the Charter of Charles the Second in 1663, making only such alterations, by acts of the Legislature, as were necessary to adapt it to their condition and rights as an independent State. It was under this form of government that Rhode Island united with the other states in the Declaration of Independence and afterwards ratified the Constitution of the United States and became a member of this Union and it continued to be the established and unquestioned government of the State until the difficulties took place which have given rise to this action.” So, yeah, Rhode Island never adopted a constitution, they kept their charter government from the King of England despite rebelling against the King of England!

THOMAS Wow!

ANDREW So that seems to be a pretty good case to allege under Article IV, Section 4 of the Constitution that the United States “shall guarantee to every state in this Union a Republican Form of Government,” how could it be a Republican Form of Government if it is a Grant of Authority, a Charter Declaration, by a foreign monarch?

THOMAS [chuckles]

ANDREW Seems like a pretty good argument to me, right? And the Supreme Court rejected that. The Supreme Court said, “Under this Article of the Constitution, it rests with Congress to decide which government is the established one in a state, for as the United States guaranteed each state a Republican Government, Congress must necessarily decide what government is established in the state before it can determine whether it is Republican or not, and when the senators and representatives of the state are admitted into the counsels of the Union, the authority of the government from which they are appointed, as well as its Republican character, is recognized by the proper Constitutional authority, and its decision is binding on every other department of the government and could not be questioned in a judicial tribunal.” So 1849, Luther v. Borden, the Supreme Court said, yeah, that clause means that it’s Congress’ job to figure out what the government is, and if they let a State into the Union, they must necessarily have decided that it is a Republican form of government.

THOMAS Huh.

ANDREW You can’t challenge that in Court. Now, that’s what we mean by “Non-Justiciable Controversy,” it means you can’t challenge it in court. Now, is there a potential crack in the armor? Paul Wheely sent a law review article arguing that maybe it should be, right? Maybe they got it wrong.

THOMAS Well, I was gonna say that, just to make sure I’m understanding it -

ANDREW Yeah.

THOMAS It’s one thing to say, “okay, if they’ve let a State in they’ve decided it’s a Republican form of government” but that, I mean, is there any ongoing obligation to be a Republican form of government? Or is just like, you get in, and what if the State just turns into some ridiculous non-representative farce, like some our states are kind of turning into with gerrymandering, is there any ongoing obligation or is it just because they were made a State, then it’s fine?

ANDREW Yeah, and the answer to that is even if there is – this is the language of the decision – the right to decide is placed there, that is the Congress, and not in the courts.

THOMAS Interesting.

ANDREW In other words, the courts don’t get to decide no matter what. And lots of people have asked the exact hypothetical that you have asked, which is, “okay, you admit a State into the Union, and then they abolish the Constitution and it becomes a dictatorship,” and the answer is, under the current analysis and long-standing practice of the Supreme Court, that the remedy to be found would not be found in Article IV Section 4 of the Constitution. Now, I think, mind you, we’ve told you that Luther v. Borden is from 1849, so it predates the 14th Amendment by several decades, so I think you would have, just like in the gerrymandering cases, a really really good argument that the states, if you had a monarchy in Rhode Island, that it would not be guaranteeing to all citizens equal protection of the laws, but you would not be able to bring a lawsuit challenging the named monarchy or theocracy or whatever, challenging the structure of the government, under the clause of the Constitution that says that the “US government shall guarantee a Republican form of Government to every state.” If that seems counterintuitive to you, I should point out, it seemed counterintuitive to former Supreme Court Justice Sandra Day O’Connor, who in a 1992 opinion, in Dicta, so not as part of the holding said -

THOMAS Right.

ANDREW Here’s what she said: “the view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther v. Bordon, in which the Court was asked to decide in the wake of Dorrs Rebellion which of two rival governments was the legitimate government of Rhode Island. The Court held that it rests with Congress and not with the judiciary. This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were nonjusticiable” and then she cites to Justice Harlan’s dissent from Plessy v. Ferguson, which was 1896, so after Luther v. Borden, that racial segregation was “inconsistent with the guarantee given by the Constitution to each state of a Republican form of Government,” and citing this clause. So then she says, “More recently, the Court has suggested that perhaps not all claims are nonjusticiable” and then she cites to contemporary commentators, and we’ve talked about how law review articles can sometimes affect how jurisprudence goes. She cites to Laurence Tribe, a well known liberal constitutional scholar, unimpeachably a genius, we’ve mentioned him on the show before, John Hart Ely, not somebody I’ve mentioned before, but again a liberal constitutional theorist and someone I respect greatly. So, cites to all these law review articles, and then says, “we need not resolve this difficult question today” because the merits of that particular case didn’t turn on the Guarantee Clause, they were able to resolve it under something else. So you might say, “oh cool, there’s a crack in the armor, maybe they’re gonna revisit it,” but, to throw a little bit of cold water on that, since 1992, that case, which is New York v. United States, has only been cited by the Supreme Court twice and not for this provision, in fact for the opposite it’s been cited for the provision that Congress cannot directly require the states to govern according to their instructions. So it was suggested that maybe we should revisit Luther, but that suggestion hasn’t really gone anywhere in 25 and-a-half years. So I gotta tell you the current status of the Guarantee Clause is a dead letter, is it’s nonjusticiable. I’m gonna link two law review articles in the show notes, because you wrote in and people who are interested in diving into these questions may find them interesting, but right now that debate is taking place in academic circles and not in the courts. So, not gonna provide any relief in gerrymandering cases, it is a nonjusticiable political question.

THOMAS Ah, well, that’s a shame. Oh well.

ANDREW Yup.

THOMAS Keep fighting! We’ll find a – hopefully some day we’ll find another way to ensure actual representative government, but [chuckles] great question and appreciate the answer. [58:20] And now it is time to thank our new patrons at patreon.com/law, and it’s such a good time to join up because you’re gonna get the Q&A that’s happening later today, you’re gonna get the Law’d Awful Movies that’s coming at you soon, and for anyone unfamiliar, once again, we take a movie or show – usually a law related movie or show, and we poke fun at it and point out how ridiculous it is in terms of its grasp of the law. It’s a lot of fun. It’s worth checking out, so good time to be on patreon.com/law.

Patron Shout Out: – 1:00:06

ANDREW Thank you all so much for pledging, we really do appreciate it. Hey, enjoy that Q&A tonight, enjoy the Law’d Awful Movies, and thanks for making the show possible!

THOMAS Yeah, can’t wait!

Thomas Takes the bar exam

RANDALL DUNBAR Oh, no associate of this firm has ever failed the bar exam.
MITCH McDEERE No kidding.

THOMAS And now it’s time to find out how good my math was [chuckles] on this question, I don’t know… Oooh! How much can a teacher reclaim? It’s a bizarre accounting question. But let’s hear it!

ANDREW Alright, Thomas, yeah! You picked “B”, $4,200 dollars, and you calculated that as saying, yeah, she was hired at $10,000, ultimately the only job she could get was for $6,000, so that’s a $4,000 differential, and also you chose to compensate her for $200 dollars spent travelling to interview for a job she didn’t get at the only other nearby summer camp after she had been notified that somebody else was gonna be hired. And I am pleased to tell you that that answer is correct.

THOMAS Alright!

ANDREW This question was testing the ordinary measure of damages in contract, right?

THOMAS Hmm.

ANDREW So the principal of contract is that we award compensatory but not punitive damages. There are exceptions but by and large a contract is meant to compensate the person who was the non-breaching party, the person who was the victim of the other parties’ breach, and the standard measure of damages is the amount that would allow the non-breaching party to be put in the position they would have been in if the contract had been performed.

THOMAS Ah-hah!

ANDREW So what does that mean? That means while you are mitigating your damages, which is what this teacher was doing – finding another job – the expenses you incur, the reasonable expenses that you incur in mitigating your damages, can be recovered even if the expenses did not lead to the successful effort to mitigate.

THOMAS Yeah.

ANDREW So, the breach of the summer camp –

THOMAS Well, that makes sense because as part of the difficulty of having to, you know, find another job or whatever it is, when someone breaks a contract, part of the difficulty would be you might have to try, you know, do a bunch of work, and time and money to go make up for what you lost, so it makes sense that even if it wasn’t successful you’d still get the money.

ANDREW Yeah, and also there’s an economic theory behind that, which is you want – it’s called the “Theory of Efficient Breach”. If it’s possible for both parties to be made better off, you don’t wanna create perverse incentives that make that not happen. So if the teacher was unable to recover her expenses in interviewing, then –

THOMAS She just wouldn’t even bother.

ANDREW Right. In that case, you have an efficient breach scenario. Everyone is better off. And so you don’t wanna create the perverse incentives to have the teacher not interview –

THOMAS Yeah.

ANDREW - because she’s not gonna get paid, because it might lead to an outcome that’s better for everybody. And so, the attractive distractor here was you had to parse through both levels of the question. Number one, do you get all of the money because the other party breached the contract? You correctly figured out, no, you don’t get all the money, because that would be punitive. You get to be in the position you would have been in had the contract been performed. And does that position include unsuccessful efforts to mitigate damages? And the answer is yes, so, great job! Congratulations!

THOMAS Alright! Well I’m excited! I’m back on the up and up! I guess that one did end up being pretty straightforward. But I tell you what, listening to Opening Arguments helped me answer that question. I don’t know that I would have known all that had I not been an avid fan of this show. So let’s find out – hop in your time machine, Andrew! Your very limited, nearly useless time machine.

ANDREW [chuckles]

THOMAS But it’s got one very good use out of all the potential use it could have. Tell us, who is the winner of this week’s TTTTBE?

*Hall of Justice sound effect*
NARRATOR Meanwhile, at the Hall of Justice.

ANDREW Thomas, we had a lot of people playing along this week on Twitter and Facebook, and a lot of people guessing “B,” there were a bunch of great Douglas Adams references because of the whole “42, it’s a hundred times more persuasive” I thought that was funny, but I thought the best answer this week comes from 27394days on Twitter, @27394days, who guessed “D”, who says “Step one, D is the correct answer. Step 2, sign contracts with all the companies. Step 3, get them to all back out. Step 4, profit!” So I thought that was a great explanation for why “D” is clearly an incorrect answer, I love the ballsiness of being willing to guess the wrong answer in order to be willing to make your point on Twitter. I think 27394days knew that it was “B” and was trying to get our attention this way. Well, it worked this time! So congratulations, you’re this week’s winner! Everyone give 27394days a follow on Twitter.

*Transformers transistion*

THOMAS Alright everyone, thanks so much for playing, congratulations to our now famous winner! And [chuckles] that’s it for today’s show! Lookin’ forward to, again, Law’d Awful Movies coming at you real soon, and also Friday, another news-worthy rapid response episode. Those are so useful, and when you’re not getting that you’re getting awesome historical breakdowns of Watergate and stuff like that, so keep on listening, keep on sharing, and we’ll see you next time!

Outro

LYDIA: This has been Opening Arguments with Andew & Thomas. If you loved the show and want to support future episodes please visit our patreon page at patreon.com/law. If you can't support us financially it would be a big help if leave us a five star review on iTunes, Stitcher or whatever podcast delivery vehicle you use and be sure to tell all your friends about us. For questions, suggestions and complaints: email us at moc.liamg|stnemugrAnepO#moc.liamg|stnemugrAnepO. The show notes and links are on our website at www.openargs.com. Be sure to like our page on facebook and follow us on twitter @Openargs. Until next time.
This podcast is a production of Opening Arguments Media LLC, all rights reserved.
ANDREW: Opening Arguments is produced with the help of our editor Brian Ziegenhagen, production assistant Natalie Newell, and out unofficial researcher Magpie. A special thanks to the moderators of the Opening Arguments Facebook Community: Natalie, Alisha Koch, Eric Brewer, and Emily Waters. And also thanks to Thomas Smith who wrote and produced all of the amazing music you hear, which is used with his permission.