The president of the United States was impeached for only the third time in history. Let the obscure legal theorizing begin! Joe and Elie break down the curious argument that the House doesn’t even need to hand over the articles.
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Above the Law – Thinking Like a Lawyer
Intro: Welcome to Thinking like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello and welcome to Thinking Like a Lawyer, I am Joe Patrice from Above The Law, with me is Elie Mystal who is –
Elie Mystal: Cold.
Joe Patrice: Cold, yeah it’s chilly here today as we’re recording, it’s in the 20 degree window.
Elie Mystal: Feels like 12 I believe is the last read out I got.
Joe Patrice: I mean it’s balmy.
Elie Mystal: Yeah, this is a horrible European weather, it always shocks me that at some point some kind of ancient man who had been walking for a very long time got to here and was like yeah, this will do, like why stop walking, like go back towards the sun young man in any event.
This is usually the podcast where I bitch about weather because this is the first real cold snap and so this is usually the show where I grind my gears about the weather but I’m not going to, I’m going to go against type slightly.
Joe Patrice: All right.
Elie Mystal: It’ll still be weather-related.
Joe Patrice: Okay.
Elie Mystal: But the thing that’s pissing me off today particularly is the horrible practice of upstreaming.
Joe Patrice: Oh yes, no you actually previewed this with me yesterday, yeah.
Elie Mystal: So for the uninitiated for basically if we don’t live in New York or maybe DC, Chicago, upstreaming is the practice where you walk towards the traffic, in New York we have one-way streets, you walk towards the flow of traffic so that you can get ahead of somebody who has been previously established on a corner hailing a cab so the cab will get to you first right, you are – and it’s done, upstreaming is done intentionally.
I’m not talking about a person who comes out of their building, which happens to be in the middle of the block and hails a cab right outside their building. Now, I happen to be a particularly good person when I am in that situation, I look behind me to make sure that I am not upstreaming somebody but I understand if you can’t reach my moral level like if you’re just walking out your building and you’re in a hail a cab right at your stoop, I understand that.
Upstreaming is when you are behind me, you have to walk past me as I’m visibly hailing a cab so that you can hail the cab right in front of me. Right, that’s the practice. It’s, I think even from my description, you can tell how horrible it is and how the people who do this should probably go directly to hell.
But yesterday, last night –
Joe Patrice: So the hold on real quick, this may be confusing to most of our listeners because everybody else in the world started using Uber and Lyft a long time ago but in New York we could still hail cabs on the street, just thought I would clear that out.
Elie Mystal: Excellent point. That was a very subtle way of okay boomerang me.
Joe Patrice: I didn’t think of a subtle.
Elie Mystal: Last night this White man I should add and that will become important, not just up — like brushes past me on a 20 degree night to upstream me ten paces ahead of me. I can’t express my frustration correctly, like the violent thoughts I had during this period of time where this man had walked in front of me and then was standing with his back, then he put his back towards me right, I could have done anything to that man, many of which would have gotten me arrested.
Yet justifiably so, the racial component here of course and it’s not about the man’s race right, it’s about mine, like I happen to be an African-American male in New York City. It is difficult for me to get a cab and if you don’t know that, you need to like go read something or educate yourself right like it is hard enough for me to get a cab that you’re going to — when you are going to upstream me like that just makes everything in my life harder in that moment.
And you, as a White man, have got to know that and have got to like account for weather not only do you want to do this kind of very obviously poor etiquette thing but also like bring racial unhappiness to my life in that moment because you need the cab so goddamn badly.
Joe Patrice: This goes back to years ago. I was initially not a fan of Uber, Lyft sorts of situations I felt like they were trying to cut in on the cab business and those folks, but you actually wrote a piece back then that I thought was very prescient about how those ride-hailing organizations would actually end up being better from a race perspective and obviously it’s turned out that there were some hiccups along that way.
But at the time your point was being able to say I need to go to the Upper East Side, pick me up here and here I am was a value that you didn’t have to face drivers trying to avoid you for whatever reason.
Elie Mystal: It’s the lesson, it’s still one of the reasons why I don’t have a ton of sympathy for the Taxicab Limousine Commission for the general taxi cab or taxi cab drivers unions around the country, who are being displaced by Uber and Lyft. If they offer better services maybe they wouldn’t be displaced quite so easily, right.
And one of the reasons why I think it’s very easy to displace cabbies is not because of just the obvious convenience of being able to order your own ride it is because in many cities for African-American and Latino people, especially men like it’s — it is so much easier to be able to get a ride without having a deal with some of the racial bullcrap that the taxi cabs usually bring to you.
Now obviously as you say they’ve been some hiccups, obviously I’m kind of hyper aware that I’m focusing this on the male issue because certainly women have their own set of real horrible problems.
Joe Patrice: There are series of intersectional issues here. Go on, yeah.
Elie Mystal: Right and I would also point out that I do not get as angry, I don’t like it but I get as angry when a woman, even a white woman upstreams me for some of these intersectional reasons, also like chivalry is not completely bad, like whatever, like I can talk myself into being upstreamed by a woman.
A White man upstreaming me –
Joe Patrice: To the victor go the spoils.
Elie Mystal: It’s just –
Joe Patrice: If you’re willing to take those steps you could have just kept walking and gone ahead of him.
Elie Mystal: Right, I mean that’s the marketplace, that’s the Republican marketplace solution right like and again I also could have tackled him and if I was willing to continue walking, I easily could have brushed past him myself. If he tried to brush past me again it wouldn’t been that hard for me to like let leave a foot hanging out there so he trips on his fricken ass like I had some street options at that point.
But morally an F and an etiquette sense, I found this person to be particularly rude, so I did the most New York thing I could do in that moment, I screamed turns out you’re the asshole as he walked by me. I don’t know if he, I mean he heard me because I’m loud but like I don’t know if it registered, but made me feel slightly — warmed me up a little bit on that cold night.
Upstreaming is bad folks, please, please don’t do it to Black people, it’s just — life is tough enough. Take your time in the cab line that has the pop-up cab line and be a decent person.
There was one time actually — this is not — I don’t want to go on with the grinding, but I just want to tell this story. I’m standing in, so outside of Grand Central Station, there is an actual cab stand. It is rare that you need to take a cab from Grand Central to anywhere because the subways right there too, but a lot of times tourists are there.
And I’m there one time for whatever reason, it’s like ten people deep, because there really aren’t any cabs and this white girl, I mean she couldn’t have been older than 25 tried to upstream the entire cab stand and for a moment I feared for her safety, because the immediate like vitriol and anger that came from like ten random strangers at this white girl who had her head in her phones was and she was surprised. I mean screaming, cursing just like not, not anything sexual thank God, but violent, like for real like I’m going to rip your arms off, violence from like old ladies, who clearly like, we’re just trying to get to Brooklyn.
I have not read police reports about upstreaming crimes but I would not be surprised to read one.
Joe Patrice: Law and order upstream unit.
Elie Mystal: Right. One of these days one of you upstreamers is going to pay kind of the ultimate price for your breach of etiquette.
Joe Patrice: But I mean we also have to put ourselves in their shoes maybe they needed to get home quickly for some reason, but maybe, maybe there was something there that they need to do like feed a pet, like I mean because sometimes you need to worry about your pets.
Elie Mystal: This is my issue with general traffic problems though like the roads are shared spaces right, public transport is shared space. The thought that any one person’s problem is better is more important, the problem that you’re facing is more important than the problem than any other person that you’re sharing that space with is facing. It’s just the height of freaking hubris, right.
Joe Patrice: Yeah, I guess.
Elie Mystal: You don’t know what other people are going through. You don’t know why other people need to get home, you don’t know. Maybe that woman is walking slowly because she’s got all limp, maybe that person is walking slowly because they’ve got cancer, like you don’t know what the hell is going on with other people. And so just the morally safe thing to do is just to be fricken decent, right?
Joe Patrice: Yeah.
Elie Mystal: It’s not actually hard, and if you get home two minutes later then you would have liked you can probably suck it up.
Joe Patrice: I mean you can but maybe, maybe your poor pet can’t, and maybe there’s other solutions to that, which is why today’s episodes brought to you by your turtle, he’s very mad at you.
Elie Mystal: Oh God.
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Elie Mystal: Why were you talking about pets Joe, that’s why you are talking about pets?
Joe Patrice: Yeah, yeah, no, it didn’t come out of nowhere. I was setting up yeah. Yeah.
Elie Mystal: Turtles today?
Joe Patrice: Turtle was today, yeah, it was the first one I could come up with because I have resisted the urge that has been brought up before of do I have a book of animal puns. I don’t, I just come with the inspiration as it hits me.
Elie Mystal: It has to be organic.
Joe Patrice: It does.
Elie Mystal: What are we talking about today?
Joe Patrice: It’s a great question. So we will be clear. I mean you all I think are smart enough to have worked this out. If you’re listening to this episode in real time you know that there’s a holiday about to happen and for that reason, it’s a little hard to have a schedule of guests or anything like that, because nobody wants to come on during the holiday.
So we’re here just having basically an impromptu holiday party in our office and we’re just chatting with you about things that are going on.
Elie Mystal: Cheers.
Joe Patrice: Yes, indeed.
Elie Mystal: Happy New Years.
Joe Patrice: Yes.
Elie Mystal: But lights because that was provided for us free by our employer.
Joe Patrice: Yeah.
Elie Mystal: The other problem that we’re having of course is that there’s obviously big news going on. And we do not know where that news is going to be by the time you listen to this.
Joe Patrice: Which of course what he’s talking about is the potential canceling of our free trade deal with Wakanda.
Those who have not been keeping up the US Department of Agriculture has had on its website for months now an explanation that one of our free trade partners is the Nation of Wakanda.
Elie Mystal: Which is not real. It is — that is the made-up nation in the Black Panther movie. I would imagine that it would be lucrative for the United States to have a partnership with Wakanda given its monopoly over the stock of Vibranium in the world.
Joe Patrice: Right.
Elie Mystal: But since none of that exists for the USD it actually has up on –
Joe Patrice: There is technically a supply of Vibranium in the savage land in Antarctica, that’s a deep cut, but we will put that to one side.
Anyway, somehow the Trump Administration has been celebrating its free trade deal with Wakanda this whole time.
Elie Mystal: It’s just like that time when like X amount of Trump voters or whatever believe that Agrabah was like a real place.
Joe Patrice: Yeah, yeah, yeah.
Elie Mystal: The City in Aladdin. Like we are the ignorant — what it comes from is obviously ignorance about any place that is not America, right, like Americans are kind of historically almost proudly ignorant about world affairs and other countries and especially when you get to other countries that are predominantly populated by brown people, Americans feel almost entitled to not know shit about those places. And that is partially why you get people who really do believe that Agrabah is a real place or really do believe that you can have a trade deal with Wakanda or this ridiculous.
Joe Patrice: It is a bizarre paradox in a country that is very, very proud of its superpower status over the rest of the world is populated by folks who refuse to care what’s going on in the rest of the world, like the same people who don’t want to know what’s going on anywhere else would be very annoyed if we weren’t prepared to go interject ourselves into all sorts of international affairs but –
Elie Mystal: Yeah, we think we can run every play nice without knowing their names.
Joe Patrice: Yeah.
Elie Mystal: I want to get to this Larry Tribe argument and again look we understand I don’t know where the ground is going to be by the time you guys listen to this.
Joe Patrice: But Harvard Law is –
Elie Mystal: In real time yesterday the President United States was impeached. Kind of a big deal.
Joe Patrice: No kidding.
Elie Mystal: Yeah. He’s still President though. As I’m sure we know the articles of impeachment now move on to the Senate, where Trump awaits a full trial or do that.
Joe Patrice: Right.
Elie Mystal: As Lee Corso might say not so fast my friend.
Joe Patrice: Well done.
Elie Mystal: Because apparently there was a building consensus on the left that there is a constitutional loophole that means that the Democrats do not have to transmit the articles of impeachment to the Senate basically until they want to, and that as long as you don’t transmit the articles to the Senate then McConnell cannot conduct his show trial which will almost inevitably result in an acquittal for Donald Trump.
So the thought is that you withhold those articles until McConnell agrees to do call witnesses, call bulletin, have a fair trial, some concession for Mitch McConnell.
In terms of political strategy I’m fine with it, like look –
Joe Patrice: This seems smarter than the alternative in my mind.
Elie Mystal: And McConnell has no leg to stand on, he held up the Garland nomination for 293 days like McConnell has no leg to stand.
Joe Patrice: And that’s like an excellent point, because I think that is the most on point analogy to what Tribe is trying to say, Tribe’s argument is even though obviously what the Constitution assumes is that once these things have been passed, then it goes to the Senate, like that is assumed to be the natural flow. But it was also assumed for 200 years that the natural flow of a president saying this person is nominated for the Supreme Court was that the Senate would at least make a decision on whether or not that person should be on the Supreme Court as opposed to just doing nothing.
So McConnell’s decision there is actually the most on point analogy I think to what Tribe say.
Elie Mystal: So the whole argument here that you’d have to push through the article. So again, strategically I’m with it. Legally and this is where — this is where I get into the Tribe’s argument, right like so professional arts tribe has tried to kind of put some legal grist on this mill, and his core argument which you can read about in the Washington Post where he wrote an op-ed, is that it is wrong for commentators, pundits, politicians to ask where is the specific constitutional power through which the House of Representatives can withhold the articles.
The question is where is the relevant constitutional language that stops them from doing that, right?
Joe Patrice: Right.
Elie Mystal: So his view of the Constitution is not as a document that we need to look at to allow us to have powers, it’s a document that only kind of exists to restrain us and if the Constitution doesn’t say no you can’t, then guess what, yes you can.
Now again intellectually, I’m there, right, because I don’t like the Federal Society, I don’t like constitutional textualism, I believe in the core concept of limited government and that is not anything that was told to you by Paul Ryan or Ronald Reagan.
The core concept of limited government is that the people can do everything but for these specified things that we allow the government to do, right.
And so I agree kind of intellectually that the core concept of limited government suggests that if there’s not a constitutional prohibition then it is de facto allowable and legal, however –
Joe Patrice: See, I think that — well I will say, I think before your however, I take a very different stance on the negative nature of the Constitution. I think that is true. That is a fair interpretation of how the — what the Constitution means to the citizenry that if it doesn’t ban you from doing something then you get to do it sort of that’s part of that social contract.
The institutions created by the Constitution that wouldn’t exist but for the Constitution say, Congress or presidencies or something like that I think are actually very much bound by what is affirmatively in the Constitution.
But, that’s, that’s my sense.
Elie Mystal: That actually works with my however, because —
Joe Patrice: Okay, yeah.
Elie Mystal: Because I think the argument falls apart and where it falls down is that if you’re saying that you don’t need an affirmative grant of power from the Constitution to do something, I think exactly as you put it, as an institutional body.
Joe Patrice: Right.
Elie Mystal: Then legally what you’re saying is that it’s that everything is about raw political power, that everything, everything just devolves to can you politically pull it off or can’t you. And that thought process to me is fundamentally lawless.
Joe Patrice: Yeah I mean —
Elie Mystal: The very concept of living under a nation of laws kind of requires that you need something more than raw strength in order to institutionally accomplish something and Tribe’s argument in this particular case cuts against that kind of core value of the rule of law.
Joe Patrice: Yeah, well welcome to the body of work of Mark Tushnet. Yeah, I mean this has been an area in which some critical legal scholars have been very active for quite some time in suggesting that there really are no norms to any of this and that it’s all kind of a mythology. But it’s a mythology that maybe arguably a helpful myth and it’s one that from my perspective I think even if I were to agree that Tribe is right, I would be doing so by agreeing that McConnell was right to not have any vote on Garland, which I think was actually incorrect.
And so, I’m going to take the stance that both of those things are wrong, but –
Elie Mystal: You agree with the kind of core concept that kind of either they’re both wrong or they’re both right.
Joe Patrice: Yes.
Elie Mystal: But what’s certainly is not true is that one was right and –
Joe Patrice: One’s right and one’s wrong, that is absolutely correct.
Elie Mystal: Yeah.
Joe Patrice: Yes. I could be persuaded that they were both right, however I have thought quite a lot about the first half and concluded that it was not right. So I think that I, a hard sell on this one being right.
Elie Mystal: I think they’re both wrong.
Joe Patrice: I agree.
Elie Mystal: I think that since what I don’t think as I’m not in this like well two wrongs don’t make a right. Now, fuck you. Like you want to play this game McConnell then you mess with the bulls, you get the horns. So like I don’t have a problem as Eliot Ness might say. I have a problem becoming what I beheld, all right.
Like I am willing to like break laws that I have vowed to uphold if that makes me get Capone and so I mean I want to go there.
Joe Patrice: Ultimately Heath largely failed in all that and it was just a tax evasion count that got Capone. So it’s like he did all those things, it kind of broke down the rule of law and then ultimately didn’t succeed.
Elie Mystal: There’s this movie you should watch.
Joe Patrice: Yeah I’m familiar but –
Elie Mystal: I think it’s really good.
Joe Patrice: The movie is excellent but the movie’s argument is largely that Ness was responsible for the tax thing which was more handled independently of a lot of the blowing up distilleries that he was doing but move on.
Elie Mystal: Yeah but in the movie –
Joe Patrice: Yes in the movie they make –
Elie Mystal: Now what are you prepared to do?
Joe Patrice: Right, they do talk —
Elie Mystal: I don’t know why I just made him like super Scottish there, that was completely wrong, those I made him something like fucking Groundskeeper Willie which was not my intention I apologize to Sean Connery.
Joe Patrice: Fair enough. Yeah I assume he’s listening.
Elie Mystal: So that’s why I come down. Since McConnell has already crossed the Rubicon I am willing to cross with him to get him, but intellectually, philosophically, constitutionally I think this is wrong in the same way that what McConnell did to Merrick Garland was wrong.
Joe Patrice: Yeah. No, I think it’s hard to separate the two and so it’s just a question of do you see a value in perpetuating norm breaking to accomplish something in the short term or do you think that there is a long term greater problem with norm breaking, which is where I’m more concerned.
Elie Mystal: I think where we constantly conflict because I say once the norms are broken they’re gone.
Joe Patrice: Yeah, I mean there is certainly a theory that Democratic backslide is a one-way street and that no civilizations ever come back for that. I’m not entirely sure that that’s all that fair. I mean well Rome didn’t really come back from it, right.
Elie Mystal: I said Rome didn’t.
Joe Patrice: Yeah did not, okay sorry I thought you were saying did it, fair enough that’s an excellent example of one that was unable to come back. Let’s see, unless you take a long enough view of it and say that after Kings they went and like you but whatever.
Elie Mystal: After kings and then Popes.
Joe Patrice: Yeah right so it’s really –
Elie Mystal: There’s no take-back season, global geopolitical politics.
Joe Patrice: Yeah I mean it is certainly difficult to believe that there’s an easy way back. I am one of those people who believes that there are ways in which you can affect change without saying they did X so we will do X or even they did X so we will do not X. I think there are — we’ve had a conversation about this on the podcast before script flipping issues where you can take an action that kind of robs the other side of the ability to game it in a way that then couldn’t — can set a new norm.
A good example that we’ve talked about before is filibusters rather than say we should have a filibuster, we should not have a filibuster, have a game where the filibuster just carries with it a bunch of onerous extra stuff. You actually have to talk. You can’t just say it by Fiat and move on with your day.
Those actual repercussions would then fit into the existing norm but in a way that would prevent it from being abused because it now has extra baggage. I think there are other areas of these norms that are being broken that can be affected that way where we can think creatively to change the script of what they mean in ways that are positive.
But that’s a hard job but all this is hard.
Elie Mystal: And doesn’t it almost require two sides to be willing to play ball here?
Joe Patrice: I mean it requires something and part of it though and part of where norms I think if you are willing to play the norms game have value is you can imply pressure from a kind of appeal to the people sort of situation. You can appeal to folks to say — a good example this is like term limit sorts of legislation which nobody actually wanted but people who wanted to get term limits in particular at the time it was like the 90s Republicans who were trying to dislodge institutional benefits that Democrats had had for a long time in the House of Representatives.
It’s not like the Republicans wouldn’t be kicked out on term limits either but they started seeing a populist that was largely because it was ill-informed saying term limits are great and they jumped on that.
There’s a ways in which you can think outside the box and then use popular support because they found that there were Democrats who were supporting term limits even though it was purely not in their interest. But because they were appealing to this idea of a norm, it would get corrupt people out of Washington, it would cause turnover. You could get that change to happen.
And so I think there is a room and a space for people to think creatively about how to do things and if they did so, could potentially bring in support from uncharacteristic sectors.
One example that we also talked about is the Supreme Court and how to reform the courts. Court packing just invites more court packing but an issue where we could follow the term limit model has some support among some conservative sectors, even Ted Cruz has been on record saying he would support a term limits view if he is representative of some of the Tea Party-esque individuals out there.
There is a way in which Democrats could potentially change this forever by teaming up with them, getting a term limit system in where two justices per president, it would be demographically you would see that being more favorable to Democrats long term.
Elie Mystal: I mean I think you need carrots and sticks. I mean I think that that what you’re talking about is fundamentally the carrot to try to bring the other side along. What I’m talking about is actually sharpening the goddamn sticks for once.
Joe Patrice: Another, I mean I hear another example is how gerrymandering has been dealt with in a lot of areas and the Supreme Court has still held up some of this. So it’s not done, but it was four years, Republicans gerrymander Democrats take over and gerrymander back. Democrats shifted to why don’t we have independent commissions lo and behold there’s some appeal among normal people for yeah, I don’t see why an independent commission is not a good idea.
People who may not be democrat say yeah, I mean why not, that seems fair and it’s become harder and harder in some states, Arizona being one that passed a ballot measure about this while still a predominantly Republican state even in that world, several voters who were Republican voters voted for the idea it would be better to have independent commissions because it just felt fair.
Elie Mystal: Yes, but that only works if you’re offering them the choice, you can either have an independent commission or we as the Democrats who are now in charge will gerrymandered you out of existence, right, like you don’t want to see –
Joe Patrice: In fairness it was a ballot measure and the Democrats had not taken over. So it actually was the opposite.
Elie Mystal: What I don’t want to see is Democrats who finally get into control in some of these places ahead of the 2020 census refused to gerrymander because that’s the right thing to do.
Joe Patrice: No, I mean that’s what they should.
Elie Mystal: But also do not pass the ballot measures requiring independent commissions going forward, right.
Joe Patrice: Right.
Elie Mystal: So you can’t like I’m going for Democrats not to gerrymander 2020 but you have to do that in such a way so that Republicans can’t just go back and do it again.
Joe Patrice: You have to attempt to flip the script, yes. It is all about that script flipping as I called it. I don’t know if that’s a term that someday maybe that’ll be in a political science textbook. I don’t know. I’m sure somebody else has thought of something similar to what I’m saying but anyway so that’s that.
Elie Mystal: It’s a good place to end it.
Joe Patrice: I think so too.
Elie Mystal: Happy New Year guys.
Joe Patrice: Indeed. So yeah, well, we’ll have one more show before the New Year but Elie won’t be on it, so that’s why he’s saying that now, but you will hear the dulcet tones of my voice one more time this decade, I guess. I mean technically I think decades and centuries are supposed to start on the one as opposed to the zero but whatever we’ll just call it the decade, may everyone else does.
Elie Mystal: No I think.
Joe Patrice: No because there’s no year zero right?
Elie Mystal: Right. So –
Joe Patrice: Everything starts on ones, which is why like 2001 was actually the beginning of the new millennium not 2000 because but nobody thinks of it that way, so anyway whatever.
Thanks for listening. You should be subscribed to the show, you should leave reviews, stars and write things up. It helps move up the algorithm the various podcast agencies do for categorizing us. You should be reading Above the Law obviously.
You should be following @ElieNYC and @JosephPatrice on Twitter. Listen to the other shows of the Legal Talk Network as well as The Jabot which is Kathryn Rubino’s show working with us here at Above the Law and you should, there’s usually one other thing I’d say here but instead I’m just going to say –
Elie Mystal: Other Legal Talk Network shows.
Joe Patrice: I thought I did just say the Legal Talk Network shows as well as The Jabot, but yeah, no, and check out Logikcull, who sponsored the show and take care of your turtle.
Elie Mystal: Peace.
The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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