Selects: What's the deal with subpoenas?

Subpoenas are all the rage. But what do they even mean if someone can just ignore it? Learn this and a lot more in this classic episode. See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

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• 0:04Josh Clark?

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• 1:32Speaker 04

  Howdy, everybody. I'm just staring at this subpoena on my desk that I'm going to ignore because I don't care about the rule of law. This is Chuck. It's Saturday, and from October 2019, we are replaying this episode about subpoenas. It's called What's the Deal with Subpoenas? Or as Jerry Seinfeld might say, "Eh, what's the deal with subpoenas?" That's my best Jerry Seinfeld. I hope you enjoyed it.

• 2:01Speaker 00

  Welcome to Stuff You Should Know, a production of iHeart Radio.

• 2:11Josh Clark?

  Hey, and welcome to the podcast. I'm Josh Clark and there's Charles W. Chuck Bryant and there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.

• 2:21Speaker 05

  Ooh, can I be Daryl Hannah?

• 2:23Josh Clark?

  Yes, I call Barbara Hershey.

• 2:26Speaker 05

  I don't think so.

• 2:27Josh Clark?

  Who was it?

• 2:28Speaker 05

  Oh, Legal Eagles. I know Deborah Winger.

• 2:31Josh Clark?

  Yes.

• 2:32Speaker 05

  Was Daryl Hannah even in that? Now I think-

• 2:33Josh Clark?

  Yeah, she was the client of Deborah Winger.

• 2:35Speaker 05

  Okay, and you're not Redford?

• 2:38Josh Clark?

  No, I always have to be Redford. Everybody's always like, that guy's a regular Robert Redford. He'll play him in this scenario.

• 2:45Speaker 05

  Right, that's the street chatter.

• 2:48Josh Clark?

  Yeah, can I still be Barbara Hershey even though she wasn't in the movie?

• 2:52Speaker 05

  Sure.

• 2:52Josh Clark?

  I think I'm thinking of Beaches.

• 2:54Speaker 05

  Oh, well, that means I get to be Bette Midler.

• 2:57Josh Clark?

  Right. I wonder how many Pod Save America listeners we just lost who had just casually decided to give us a chance.

• 3:03Speaker 05

  I want to learn about subpoenas.

• 3:05Josh Clark?

  Right.

• 3:06Speaker 05

  Before we get going, though, can we quickly thank the cities of Orlando and Greater Orlando and Florida and New Orleans and Greater Louisiana?

• 3:15Josh Clark?

  Yes.

• 3:16Speaker 05

  For two fun live shows?

• 3:18Josh Clark?

  Yeah, those were a lot of fun. Let's see, we did Orlando on October 9th, I think, and then the 10th for New Orleans. Regardless, it was night, back-to-back, two fun-filled nights, and they were just both amazing shows.

• 3:32Speaker 05

  Yeah, and when this comes out, I think New York will have been over, so thank you, New York.

• 3:37Josh Clark?

  Oh, yeah. Yep, we presume it's going to have been a great time, that three-night run at the Bell House.

• 3:42Speaker 05

  They're always great there.

• 3:44Josh Clark?

  Yeah, and that's it, too. That's it for us for the year, Chuck. So, I mean, thank you to everybody who came out to see our shows this year.

• 3:52Speaker 05

  Yeah, can we go ahead and tease our January schedule, or should we not?

• 3:58Josh Clark?

  I think we can, sure.

• 4:00Speaker 05

  All right, well, we're hoping to be back at Sketch Fest again, and then what did we settle on?

• 4:06Josh Clark?

  We, I don't know if settling is the right way to put it, but we decided to do Seattle. We're doing Seattle.

• 4:12Speaker 05

  Oh, we are?

• 4:13Josh Clark?

  Yeah, and normally for a January swing, we do Portland, Seattle, Sketch Fest.

• 4:19Speaker 05

  Right.

• 4:20Josh Clark?

  Well, we've got the iHeart Radio Awards in there in Los Angeles, and we just, you know, kind of have to go to that. No, sorry, the iHeart Podcast Awards. They don't care about us at all at the radio awards.

• 4:32Speaker 05

  No, we can't even get in that building.

• 4:33Josh Clark?

  Right, exactly. So, we said, okay, well, we gotta, we gotta pull out one of our shows, because we're old men, and we just can't spend that much time on the road. So, instead, we're going to take Portland and put it with another town in the spring. So, don't worry, Portland, we will be out there.

• 4:49Speaker 05

  Maybe, maybe the Kuve.

• 4:51Josh Clark?

  That's what, that's the talk. That's the chatter around town.

• 4:53Speaker 05

  But, we have no dates confirmed yet, but this, just look for us again in the Pacific Northwest at the beginning of the year.

• 5:00Josh Clark?

  That's a much better way to put it.

• 5:01Speaker 05

  Yeah.

• 5:03Josh Clark?

  So, do you want to talk about subpoenas? You got any other housekeeping to do?

• 5:06Speaker 05

  I don't think so. Subpoenas, weird spelling.

• 5:10Josh Clark?

  Well, yeah, so I looked up the word. Subpoena is actually two words. It means under penalty. And it's typically the first two words that were read in this writ of subpoena, basically saying, under penalty of, um...

• 5:27Speaker 05

  Blah, blah, blah.

• 5:28Josh Clark?

  Yeah, I was thinking, all I could think about was really dirty, dark stuff.

• 5:32Speaker 05

  Oh, yeah.

• 5:32Josh Clark?

  Yeah, so, I just, I let you fill in the blah, blah, blah. But, anyway, under penalty of whatever, you need to do one of two things. And there are two types of subpoenas that everybody, you know, everybody hears subpoena, you think like Law & Order, maybe visions of Central Park run through your head, because that's your only exposure to Central Park is from Law & Order.

• 5:54Speaker 05

  Yeah, or you think of the US government, because a lot of this is going to be about congressional subpoenas, because that's really the juiciest subpoena.

• 6:01Josh Clark?

  Yeah, that's, it's not like it's new that Congress has just recently started issuing subpoenas. It's new in the conscious of America in this, this age, this generation. I mean, it's been going on for a while, but normally, when people think subpoenas, until like, basically 2017, 16, 18, not necessarily in that order.

• 6:22Josh Clark?

  Most people thought of courtroom subpoenas. And that is typically the subpoena most people are ever going to come up against in their lifetime.

• 6:30Speaker 05

  That's right. But you mentioned the two types. Do you want to break out your Latin, or shall I?

• 6:37Josh Clark?

  You take the first, I'll take the second.

• 6:39Speaker 05

  Oh, okay. The first one's easy. The first one is subpoena ad testificandum.

• 6:47Josh Clark?

  Wow. Did you see that? You just made a mouse appear and run out of the room.

• 6:53Josh Clark?

  The next one, so, so, sorry. The first one, the one you just said.

• 6:56Speaker 05

  That means you got to come to court.

• 6:58Josh Clark?

  You just nailed it. Yeah, it says that you have to come and testify. And you might not be a party to the lawsuit. Like, this is, it can be a civil case or a criminal case. It's a big thing to point out.

• 7:11Josh Clark?

  But basically, it's saying you have some information. You witnessed an act. You overheard a conversation. The defendant confessed something to you. We need you to come to court and tell your story. And that's what that first subpoena is saying to do.

• 7:27Speaker 05

  Yeah, and not necessarily court court, but it can be any kind of legal authority.

• 7:30Josh Clark?

  Yeah, it could be a deposition. It could be an arbitration. But typically, it's the authority of a court of law to basically say, we're going to levy a fine against you, or we're going to arrest you and put you in jail if you don't listen. That's used to kind of enforce subpoenas.

• 7:49Speaker 05

  That's right.

• 7:50Josh Clark?

  So the second one is the subpoena duces teum.

• 7:54Speaker 05

  Hey, nice.

• 7:54Josh Clark?

  Thank you. And that is basically saying, hey, you have a document. You have a hair sample. You have some sort of bodily fluids we want to get our hands on. You have a-

• 8:06Speaker 05

  Secret tapes?

• 8:07Josh Clark?

  Yeah. Or a computer hard drive. You know, something like that, that we want you to produce because we want to use it as evidence. And there's a really important point to put here. Like, a court is saying, a court, or an official of the court, or of the government, is saying- We want you to do this because we have this lawsuit going on and you have something we need. But it's not necessarily the judge saying, and the judge is signing off on it. It's really a lawyer or for one side or the other saying, hey, I heard that this person has this secret tape and I need to get my hands on it. Judge, can you order this person to bring it to me so that I can enter it into evidence?

• 8:48Speaker 05

  And then the judge says, speak to my clerk. And then the clerk of the, usually the clerk of the judge who's handling that case.

• 8:54Josh Clark?

  They say, talk to the hand?

• 8:57Speaker 05

  Yeah, and they'll generally issue it on, on like official court letterhead and official documentation. It's not like the judge is washing their hands of it necessarily.

• 9:08Josh Clark?

  No, no, I'm sure like if they do something egregiously wrong, the judge is going to hear about it and punish them.

• 9:14Speaker 05

  That's right. And then it's served usually in person, kind of, you know, handed to you like on the TV shows and in the movies.

• 9:21Josh Clark?

  Yeah, either by a sheriff's deputy or a process server.

• 9:25Speaker 05

  Yeah, but not always. It depends on if it's congressional or if it's, you know, civil, regular Joe Schmo stuff.

• 9:35Josh Clark?

  Yeah, well, yeah, for sure. But I think even if it is regular civil Joe Schmo stuff, you can still go hire the sheriff's department to serve papers, to serve a subpoena.

• 9:46Speaker 05

  Oh, for sure. I think the congressional ones are not served by a sheriff.

• 9:49Josh Clark?

  Oh, I see. Who do they use?

• 9:51Speaker 05

  I think it depends. It could, I mean, the way congressional subpoenas work is all sort of dependent on the individual committee that's seeking that subpoena. So they all have their own individual rules about like whether you need a majority vote to even get a subpoena, or whether the chair of that committee is, you know, has the power to grant or request a subpoena.

• 10:14Josh Clark?

  Right. I've read some of them know that it's a real downer to get a subpoena. So some congressional committees use that mascot from the 1984 Olympics, the eagle, to come issue your papers to you.

• 10:27Speaker 05

  I don't remember that one.

• 10:29Josh Clark?

  You don't remember that eagle?

• 10:30Speaker 05

  No.

• 10:31Josh Clark?

  It was just like a cartoon eagle from 1984.

• 10:34Speaker 05

  Yeah, I mean, all I can, I can't get past the Atlanta Olympics mascot. That's why I can't get back to 1984.

• 10:40Josh Clark?

  Was it what's it or who's it?

• 10:41Speaker 05

  Oh, I don't even know.

• 10:42Josh Clark?

  It was one of those two. What was that thing?

• 10:45Speaker 05

  I don't know.

• 10:47Josh Clark?

  It was a last, last minute thing.

• 10:49Speaker 05

  What was the name?

• 10:50Josh Clark?

  It was what's it or who's it?

• 10:51Speaker 05

  Was it?

• 10:52Josh Clark?

  Yes.

• 10:54Josh Clark?

  Yes.

• 10:54Speaker 05

  Man, it was bad. I was out of town. I fled.

• 10:57Josh Clark?

  You didn't miss anything?

• 10:58Speaker 05

  Uh, but I do remember watching the opening, uh, whatever they're called, the opening.

• 11:04Josh Clark?

  Ceremonies?

• 11:05Speaker 05

  Opening ceremonies?

• 11:06Josh Clark?

  Right.

• 11:07Speaker 05

  And seeing the stainless steel pickup trucks.

• 11:09Josh Clark?

  Mm-hmm.

• 11:10Speaker 05

  Driving around and just thinking, oh, boy.

• 11:12Josh Clark?

  Yeah, and I, for those of you who are like, they've talked about this before.

• 11:15Speaker 05

  We have.

• 11:15Josh Clark?

  Yeah, we have, and we're still that upset about it.

• 11:18Speaker 05

  We'll talk about it again in five more years.

• 11:20Josh Clark?

  We haven't forgotten.

• 11:21Speaker 05

  Yeah, stainless steel pickup trucks, they haunt me. I have dreams about those trucks.

• 11:25Josh Clark?

  Yeah, they're just circling you, playing Striper at the loudest possible volume.

• 11:30Speaker 05

  Oh, man.

• 11:32Josh Clark?

  Okay, so, we've got different kinds of subpoenas, but both of them apply to either courts of law or Congress. So, there's one big question that most people who get a subpoena ask themselves the moment they're served the paper, and that is, can I ignore this thing?

• 11:49Speaker 05

  Yeah, do I have to do this?

• 11:51Josh Clark?

  Right. Well, what happens to me if I just pretend like I never got this? And that's really tough to do. I was reading about process servers, and, um, they, the people who are issuing the subpoena, or the lawyer who's asking for the subpoena, say, they want some sort of proof that says, you got that paper. So, they have to, um, there's like certain rules and regulations to serve, to serving somebody with a subpoena. So, it's really difficult to pretend like you're not, like you didn't get it. And a lot of people actually go to a tremendous amount of trouble to avoid being served a subpoena.

• 12:24Speaker 05

  Sure.

• 12:24Josh Clark?

  They will like move around, they will pretend they're not home, they won't let anyone else answer the door, because in some states you can leave it with a competent 13-year-old or 18-year-old.

• 12:34Speaker 05

  They'll stick their hands in their ears and go la, la, la, la, la, la.

• 12:36Josh Clark?

  Right, exactly. They'll do a lot of stuff to keep from being served, but that's actually, it will just delay being served.

• 12:44Speaker 05

  Yeah.

• 12:44Josh Clark?

  In the long run, you will still, there's other remedies they can use. They can mail it to your house, certified mail. And if the mail person says, this was dropped off, they made it to their house, that's enough. Or if you can say, I took the numbers off my mailbox, what are you gonna do now, chump? They can actually post an ad in the local legal org, in the newspaper, and then that will be considered serving you. So, either way, you're going to end up... Being considered to have received a subpoena eventually. And if you do, you probably shouldn't ignore it.

• 13:19Speaker 05

  Yeah, I mean, it says here in this article, which most of this is from the How Stuff Works article about subpoenas. But it says, you know, it's a lot easier if you just go.

• 13:29Josh Clark?

  Right.

• 13:29Speaker 05

  Or produce the documents. But as we'll cover here in a lot of this congressional oversight stuff, that is not the route that people take generally in government.

• 13:39Josh Clark?

  Yeah, and I thought it was a kind of an oversight to not say like, but also if somebody serves you with a subpoena, like, go, you don't necessarily have to hire a lawyer, but at least consult with one, like, get some legal advice, say, this is what I got, you know, what, what should I do with this? Is this, you know, you know, there's a lot of questions that you should have answered before you just act on a subpoena.

• 14:01Speaker 05

  Yeah, and, you know, when it comes to ignoring subpoenas, and that's what a lot of this will be about, is, is what's going on with our government right now and previously, and what happens if you defy Congress? And is there any accountability for that? Or can you just sit on your hands, say, nope? But there have been some very famous cases in the past, you know, 15 years or so where subpoenas have been ignored, starting, well, not starting with, but we can start with Eric Holder, Attorney General for Barack Obama.

• 14:35Josh Clark?

  Yeah, that was a big one.

• 14:36Speaker 05

  That was part of the Operation, the Fast and Furious scandal. Scandal?

• 14:42Josh Clark?

  Yeah, it was definitely a scandal. It, it, from what I remember, it involved like, secret gun sales, or else some guns were, like, let out into the community to be traced to see who they went to, and one of them ended up being used to murder an ICE officer, I believe.

• 14:59Speaker 05

  Well, Attorney General Eric Holder refused, under direction of Obama, to answer that subpoena, and he became the first sitting cabinet member to be voted in contempt of Congress.

• 15:11Josh Clark?

  Oh, is that right?

• 15:12Speaker 05

  Yeah, and, you know, you're like, oh, what happens then? Well, three and a half years later, a judge ruled that he did not have the right to defy Congress, and by that time, there was a new Congress, and it was a moot point.

• 15:27Josh Clark?

  That's a really big, big thing to remember is like a contempt of Congress vote, where you are supposedly in trouble for ignoring a subpoena, only lasts as long as that session of Congress.

• 15:40Speaker 05

  Unless the next session of Congress wants to pick it up.

• 15:43Josh Clark?

  Yes, but then they have to hold another vote. And the chances that, that the, um, that there has been a change in leadership potentially in that Congress is, you know, high enough that if you, if you make it through that Congress, you know, um, going into recess, you, you're probably going to get away with it. And I mean, that's par for the course. It wasn't just Eric Holder who got away with it. Harriet Myers, who was a White House counsel to George W. Bush, there was like a mass political firing of US attorneys.

• 16:14Speaker 05

  Yeah.

• 16:15Josh Clark?

  And, um,

• 16:16Speaker 05

  2008.

• 16:17Josh Clark?

  Yep. And she and I think Chief of Staff at the time, Joshua Bolton, were both held in contempt of Congress. And man, if you look up like, you know, follow up reporting on this stuff, it's like, you know, while it's going on, they're like, they could face fines, jail time. Finally, I found some follow up. It was like, nothing, nothing happened, absolutely nothing happened. There was no legal ramifications. There were no personal ramifications. There was nothing happened whatsoever for, to Harriet Myers or Joshua Bolton or Eric Holder for just saying, "Congress, the United States Congress, go sit on it."

• 16:52Speaker 05

  Yeah.

• 16:53Josh Clark?

  Which is essentially what you're saying when you ignore a subpoena.

• 16:56Speaker 05

  Yeah. And because of this, um, you remember Representative Darrell Issa, probably by name, he was, uh, he was involved in trying to get Eric Holder, you know, in the room. And he was so mad, he sponsored or intro'd a bill to strengthen subpoena enforcement power. And, uh, it died in the Senate. And before we, uh, I think we're about to take a break. Before we do that though, we should mention that currently, uh, White House Counsel Don McGahn, um, has refused to testify or refused to, uh, answer his subpoena under a direct order of Trump. And, um, right now, he's being sued by the House as of August.

• 17:38Josh Clark?

  And he, he in particular provides a, um, an unusual situation because at least with Harriet Myers or with Joshua Bolton or with Eric Holder, when they were directed by the President at the time not to Submit to that subpoena from Congress. They were part of the president's staff. Don McGahn was instructed not to cooperate with the subpoena after he had already left civil service. He was no longer part of the executive branch. So that definitely makes it unusual. But if you're sitting there and your head is popping and you're saying, how, wait, how? This is Congress. How can a president just say, just ignore that subpoena? And people get away with it? There's actually a lot of case law that's been built over the centuries

• 18:23Josh Clark?

  that kind of establishes that. And I say, Chuck, we take a break and then we'll dive into that after this.

• 18:28Speaker 04

  Case law.

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• 21:03Josh Clark?

  So Chuck, there's something about subpoenas, whether they're issued by Congress or by a court of law. When you get them, there are a lot of people don't realize, they're negotiable.

• 21:14Speaker 04

  Yeah.

• 21:15Josh Clark?

  That's one really big reason to hire a lawyer, is because it may be overly broad. It may be kind of a fishing expedition. It may put you at risk to come forward and give this testimony or to hand over these documents. And if you hire a lawyer and say, hey, these are the things I'm worried about, they can go and argue to the judge, like, hey, how about we just limit this subpoena to these documents, rather than everything on my client's hard drive? Or, it's really a big hardship for my client to make it here, and the $15 a day that the court's paying him for coming to testify isn't actually going to cover it, so can we negotiate a higher fee? Or something like that. There's a lot of stuff that can be done.

• 21:58Josh Clark?

  But this is a tactic that's also used with congressional subpoenas too, where, say, like, the executive branch will go, hmm. I think that this is a little overly broad, but maybe we could give you this document. Will that satisfy you?

• 22:11Speaker 05

  And then they go, nope.

• 22:13Josh Clark?

  Sometimes they say yes, though, and part of that negotiation comes out of this subpoena process. It's a response to it. But none of it would have any effect whatsoever if Congress didn't have any redress for enforcing its subpoenas, if somebody ignores it.

• 22:31Speaker 05

  Yeah, I mean, technically, there are fines and jail time sort of looming. But the more I read about this stuff, especially when it comes to congressional oversight, the more it became clear that none of that stuff really happens. It's all just dangled out there as a means to negotiate something with each other over a pretty long period of time, usually.

• 22:54Josh Clark?

  For sure. Yeah, the Eric Holder thing was, it was like four years before he finally handed over the file. And I think Congress had already gone out of session, you said, and it was basically just, the whole thing had died down, which I think is basically the stalling tactic that people ignore subpoenas for. Like, that's why they're doing it.

• 23:13Speaker 05

  Yeah, so technically, if you defy Congress, the committee that issued that subpoena is going to vote to issue a citation, a contempt citation, and then it's got to go to the full chamber to vote on it. And if that goes through and it passes, which it has before, then there are three, three basic ways that you can prosecute that charge.

• 23:34Josh Clark?

  Right. And each one is...

• 23:37Speaker 05

  Worthless?

• 23:38Josh Clark?

  Yeah, pretty much. Like, this is, we would never give official legal advice, first of all, because we're not lawyers or even trained as lawyers. But from what I can tell, there's just, nothing happens to you if you ignore a congressional subpoena. But most people respond to it because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you.

• 24:04Speaker 05

  Yeah, well, let's, let's go through the three, at least.

• 24:07Josh Clark?

  Fine.

• 24:08Speaker 05

  If, for no other reason than pure folly.

• 24:11Speaker 05

  So if they, if they vote and that contempt citation goes through, it is then under the control of the executive branch. And you think, oh, great, the president, or, oh, great, the president. It's really neither. It's the Justice Department, which is part of the executive branch. It's up to them to decide whether or not they're going to prosecute criminally. And they're going to say no. They're going to say, and we'll talk a lot about executive privilege coming up, but they'll usually cite that and decline to prosecute, basically kind of saying, you know what, we don't get involved in this stuff.

• 24:45Josh Clark?

  Right. So that is specifically when it comes to subpoenaing something from the White House.

• 24:52Speaker 05

  Correct.

• 24:53Josh Clark?

  Or the executive branch. Now, if Congress is being ignored by, say, like, the owner of the Houston Astros, they can go to the DOJ and say, hey, the Houston Astros baseball team owner is ignoring a subpoena. We want you to go after the guy. And they'll go after the guy. It's when it's executive privilege that's being cited that the DOJ says, you know how it's our jurisdiction to decide whether to prosecute this stuff? We're going to decline to do that because it's our own people and we're just going to consider this an internal executive branch matter.

• 25:24Speaker 05

  Number two is the civil judgment.

• 25:29Josh Clark?

  Right.

• 25:29Speaker 05

  And that's when you need the courts to basically enforce this. Go into court and saying, we need your help to enforce this civil suit against somebody who stiffed us.

• 25:39Josh Clark?

  Right. Like, you know how you can go arrest somebody and put them in jail? Can you do that on our behalf, basically?

• 25:44Speaker 05

  But this is super slow, like, turtle-like slow.

• 25:49Josh Clark?

  Yeah, but I think the idea is that the thought that maybe somewhere a couple of years down the line, there's going to be a judgment against you where you're going to have to pay $100,000 to Congress or something like that, or spend like 12 months in jail, will get you to the table to negotiate, you know, what documents they actually want or what testimony they want.

• 26:12Speaker 05

  Yeah, it's just leverage.

• 26:13Josh Clark?

  Right.

• 26:14Speaker 05

  So the third one is something that isn't used anymore, really. It's called inherent contempt power. It was last used in 1935. And this is, you know, this is sort of the jail thing. And while there is no capital jail, they do have a holding cell.

• 26:31Josh Clark?

  Yeah, and like the sergeant-at-arms of the Senate or the House, depending on who's issuing the subpoena and who voted to hold you in contempt, an armed officer of the Congress will show up and say, "You're under arrest. Congress says you're under arrest. You have to come with me." Or, as has been kind of bounced around lately by Democrats in the House, replacing the idea of jailing somebody, of arresting and jailing them, with a much, much stiffer fine than people have traditionally faced. Something more on the order of, I think, between $25,000 and $250,000. I think a day, actually.

• 27:10Speaker 05

  Oh, wow.

• 27:11Josh Clark?

  For ignoring this kind of stuff. Which I would guess that would get people moving if they actually go through with that.

• 27:18Speaker 05

  Yeah, I would think so. Hit them in the pocketbook.

• 27:21Josh Clark?

  Yeah. I mean, that hard, that's... And plus, it's the government, too. So it's like, hey, you know, these tax credits you're getting, we're taking those away, and this tax return that you were expecting, we're gonna hang on to that. Like, that's... This is where they could actually do something.

• 27:35Speaker 05

  Yeah.

• 27:36Josh Clark?

  I think.

• 27:37Speaker 05

  So if it's not a congressional subpoena, if it's just like we're talking about a regular court subpoena, it all depends on what jurisdiction you're in and the presiding judge that's on that case.

• 27:49Josh Clark?

  Yes. But again, because you can be arrested as a matter of routine course of a court, you really should respond at least to a subpoena, or else, you know, the chances of something happening to you from a court of law are much higher than Congress, apparently.

• 28:06Speaker 05

  Sure.

• 28:07Josh Clark?

  So...

• 28:08Speaker 05

  Can we talk about case law?

• 28:09Josh Clark?

  Yes, finally. We got all that boring stuff out of the way.

• 28:14Speaker 05

  Yeah, this first one is kind of interesting. And the way the judiciary works in this country is just super fascinating to me. The older I get, the more I read about it. I'm not becoming a legal wonk by any means.

• 28:25Josh Clark?

  A legal legal?

• 28:28Speaker 05

  But I get it. Like, you know, I get it that people are super into this kind of thing.

• 28:32Josh Clark?

  I hadn't realized you'd gotten into the judiciary.

• 28:35Speaker 05

  Yeah, I think it's pretty fascinating.

• 28:37Josh Clark?

  What got you into it? Just like news, following the news or something?

• 28:40Speaker 05

  Uh, yeah, and just sort of reading about a case, like in this case, from 1800. And then, you know, precedent and what that means.

• 28:51Josh Clark?

  Right.

• 28:52Speaker 05

  And when it shouldn't matter and should matter.

• 28:54Josh Clark?

  Like, the one from 1800 you're talking about is USV Cooper?

• 28:58Speaker 05

  Yeah, Thomas Cooper, who was a scientist and an attorney and a thorn in the side of President John Adams.

• 29:05Josh Clark?

  Right.

• 29:06Speaker 05

  In a big way.

• 29:07Josh Clark?

  Yeah, so in, I think, 1798, yeah, the US passed the Sedition Act, which said that it's illegal to criticize the US government.

• 29:17Speaker 05

  Yeah.

• 29:18Josh Clark?

  Unfortunately, when Thomas Jefferson came into office, he said, "We're gonna kind of do away with that and keep it away forever as much as we can." But there was a guy named Thomas Cooper, who, like you said, was a thorn in the side of John Adams. And he was arrested and prosecuted during a time when the Sedition Act was still in effect. And he lost his case. But the way that it relates to subpoenas and ignoring subpoenas, and specifically, the executive branch ignoring subpoenas, is that all the way back in 1800, when the United States was just a couple of decades old, this guy, Thomas Cooper, tried to subpoena John Adams to come testify as part of this case.

• 29:59Josh Clark?

  And the court said, "Hmm, we don't really subpoena presidents, we've decided."

• 30:05Speaker 05

  Yeah.

• 30:05Josh Clark?

  And that set a precedent for the rest of history. It basically said presidents are accepted from the goings-on in normal court stuff. Even when they're directly related to the case, they don't have to come.

• 30:18Speaker 05

  Right, but that same case said, "But you can subpoena someone from Congress."

• 30:23Josh Clark?

  That's a big one, too.

• 30:24Speaker 05

  That was a big one. Cooper, it didn't work out for Cooper, like you said. He was convicted, so none of that mattered, except for establishing this precedent. President? Precedent.

• 30:33Josh Clark?

  You got it. In this case, you could say it either way.

• 30:37Speaker 05

  I guess so. So that moves us on to seven years later, US v. Burr. This is John Marshall, Chief Justice John Marshall headed this one up. And basically, this had to deal with President Thomas Jefferson saying, hey, they want you to come to provide these documents. It was a Ducey's Tecum.

• 31:01Josh Clark?

  Right.

• 31:02Speaker 05

  Ducez?

• 31:03Josh Clark?

  Ducees? Ducees.

• 31:05Speaker 05

  Ducey's Tecum. And Jefferson was like, hey, here are some of those documents that you want. And they're like, but where are the rest of them? And he was like, you know, I'm not going to give you those. And I'm also not going to show up because you know what? I got to be presidenting.

• 31:20Josh Clark?

  Yeah, the executive branch is too powerful and too, or no, too important. It's the only branch that's supposed to be open 24/7/365.

• 31:31Speaker 05

  Yeah.

• 31:32Josh Clark?

  And I just can't get away. Like, my work is too important to come be part of this.

• 31:37Speaker 05

  And that gets, I think it's less and less able to prove these days, I think.

• 31:42Josh Clark?

  Yeah, for sure.

• 31:43Speaker 05

  Like, nah, you could take off a half a day.

• 31:46Josh Clark?

  Right. You got a BlackBerry. You can definitely email, keep tabs on work while you're gone. But yeah, I thought the same thing, too, that it does not hold water. But it does set a precedent for the president, like you were saying, too. And those two cases basically say together that, again, the president doesn't have to come be part of this. Executive privilege is, I guess, where this came from, from this particular case, where it's saying like, no, the president doesn't have to have anything to do with this, and the president's documents are the president's business and can't be subpoenaed because we're going to call this executive privilege.

• 32:23Speaker 05

  Right. And there are five, basically, five types generally of executive privilege that have been used thus far. One is presidential communications. Number two is the deliberative process. Number three is attorney-client communications, big one.

• 32:40Josh Clark?

  Yep, yep.

• 32:42Speaker 05

  Fourth one is law enforcement investigations. And the fifth one is anything that's sensitive in terms of military or national security or diplomatic relations, that kind of thing.

• 32:54Josh Clark?

  And that's the one in particular that has been upheld over the years. It's the idea that, like, there are secrets that the White House has that just need to be kept, or else people are going to lose their lives, or else diplomatic ties are going to be upset, that kind of stuff. And so those should be protected under executive privilege. But the rest of the stuff has been subject to scrutiny

• 33:18Speaker 05

  Yeah.

• 33:18Josh Clark?

  over the years, for sure.

• 33:20Speaker 05

  Yeah, because obviously, an executive, a president, is going to try and draw that privilege as broadly as possible.

• 33:26Josh Clark?

  Oh, yeah, for sure. And that's especially been the case ever since Nixon onward, at least, where there's this idea called the unitary executive theory, which is basically like, you know, these are separate branches of government, and the executive branch is in charge of everything to do with the executive branch. It's none of Congress's business, and the executive is basically this extraordinarily powerful single person. And that's been attempted to be invoked and proved time and time again in throwing off congressional oversight. And that seems to be kind of what we're in the midst of right now, is a really big test of this unitary executive theory.

• 34:07Speaker 05

  Yeah.

• 34:08Josh Clark?

  In saying, like, no, not only just the president, but the entire president's staff, and in fact, the entire executive branch can ignore subpoenas from Congress, because Congress doesn't have any authority over the executive branch. And that's kind of what we're witnessing right now. And on the one hand, well, there's really just one hand. The great value of having an executive, like, almost a, well, a unitary executive, is that if you're a vested interest or a very powerful group, you've only got one person to change over to your side, rather than 500 of them. You know what I mean?

• 34:44Speaker 05

  Yeah.

• 34:45Josh Clark?

  So it's very dangerous. It also very much flies in the face of the three branches of government and the checks and balances that each one's supposed to have over the other.

• 34:53Speaker 05

  Yes.

• 34:54Josh Clark?

  Because part of Congress's role is what's called congressional oversight.

• 34:59Speaker 05

  Yep.

• 34:59Josh Clark?

  It says... We're responsible for making sure you're not getting out of control. The president, the executive branch, has veto power, saying, "Congress, you guys are nuts. This is no law that should be passed. I'm going to say no to this law." And then the judiciary has judicial review. They get to say, "This law is unjust," or "This executive agency's action is illegal." And by doing this, these three branches keep one another from getting too strong. And the unitary executive theory flies in the face of that and says, "Nope, the executive branch is more powerful than all of them. The other two don't have checks over them, and let's just see what happens from here."

• 35:38Speaker 05

  That's right. Should we talk about Watergate?

• 35:41Josh Clark?

  Yeah.

• 35:42Speaker 05

  So, everyone, we should do a full episode on Watergate. I think I've said that before.

• 35:46Josh Clark?

  I agree.

• 35:47Speaker 05

  But everyone knows what happened there. President Nixon was involved in some hinky activities. And congressional committees, there was one special prosecutor in particular named Archibald Cox, who said, "Wait a minute. You've got these secret tapes. You've been taping people in the Oval Office. Turn them over. Here's a subpoena. We demand that you turn that over, along with some other stuff."

• 36:12Josh Clark?

  And Nixon said, "You demand?"

• 36:14Speaker 05

  "And we want you to come here and testify as well." And of course Nixon was like, "I don't think that stuff's gonna happen." "Here you go. Here are some of these tapes. Just ignore all the parts where it seems like it was heavily edited and sounds real funny because someone who was just in the room is no longer in the room, and there are non sequiturs all over the place."

• 36:36Josh Clark?

  It's like that videotape of the guy who got the high score in Donkey Kong.

• 36:40Speaker 05

  Right.

• 36:40Josh Clark?

  You know what I mean?

• 36:44Speaker 05

  But executive privilege was what he claimed he was protected by. So, this went to the Supreme Court in 1974 with United States v. Nixon. And Chief Justice Berger's opinion cited everything from Justice Marshall's Marbury v. Madison to the one we just talked about, United States v. Burr. And basically...

• 37:06Speaker 05

  They're walking a fine line there with the judiciary because they're saying, listen, the president needs to be confidential and protected when executing these duties, these constitutional duties, on the one hand, but on the other hand, due process of law is an important thing, and that's what we're in charge of. So they kind of ended up wanting to protect each of the branch's needs, it seems like.

• 37:31Josh Clark?

  Yeah, and I think they did a very good job. And the fact that it was unanimous, I think Rehnquist was involved with some of the people involved, so he recused himself from voting, but it was unanimous, eight to zero vote, saying, nope, you gotta hand the tapes over. Because we don't think that you're just trying to protect like intelligence secrets, or military secrets, or diplomatic secrets. We think you're just basically using the cover of executive privilege to cover your own behind.

• 38:02Speaker 05

  Exactly.

• 38:03Josh Clark?

  And that does not supersede due process in a court of law, which is going on over here with, you know, the trials of these guys who broke into the Watergate. So you gotta hand over the tapes. And in doing so, like you said, he cited another case, Marbury v. Madison, and that's a really, really important case in here, too, which I think we should talk about starting now.

• 38:27Speaker 05

  Well, I wanted to mention another quick thing before we dive into Marbury, another case, US v. AT&T. This just basically laid out that the courts are only going to get involved if everyone really tried in good faith to work it out beforehand. So like, basically said, we're the last stop here. Don't just go run into the Supreme Court or the courts in general to figure this stuff out for you.

• 38:51Josh Clark?

  Right. Although I think the Constitution says that the Supreme Court are the ones who are supposed to be running the show when it comes to like a high enough official, a case regarding a high enough official.

• 39:03Speaker 05

  Oh, yeah. All AT&T, the case said was, you have to really try to work it out amongst yourself before it even gets to us.

• 39:10Josh Clark?

  Oh, gotcha. Okay. I gotcha. I see. I see what you're saying. Yep, yep.

• 39:14Speaker 05

  But good faith, of course, is broadly defined, too.

• 39:16Josh Clark?

  Right. So in Marbury versus Madison, that one basically said, hey, there's this one component here. Yes, we've established that the legislative branch, Congress, can issue subpoenas and that the executive branch can exert executive privilege and say no to some subpoenas under some cases. But we're also going to say in US v Nixon in 1974 that the court can say, no, your right to secrecy is overshadowed by a right to due process in most cases. But the one that really says at the center of this is the judiciary and that the judiciary

• 39:58Josh Clark?

  has a right to decide cases where the legislative and executive branches are in dispute is this Marbury versus Madison case from, I think, 1804. And it was, from what I understand, a master stroke of legal eagerness by Justice John Marshall.

• 40:19Speaker 05

  Yeah. So is the long and short of that one that Secretary of State James Madison, he was trying to withhold the commission of William Marbury. Was that the case?

• 40:29Josh Clark?

  Yeah, because the outgoing Adams had packed the courts with friendly judges.

• 40:33Speaker 05

  Right.

• 40:33Josh Clark?

  The commissions had not all been mailed out, and Madison was withholding some.

• 40:38Speaker 05

  And they basically said, listen, man, you can't do this. Like, it is your job. You shall commission all the officers of the United States. It's like right there in black and white, and you lose.

• 40:50Josh Clark?

  Right. So that was one part of it. But what Marshall figured out and what made this a master stroke of legal eagerness is that there was something called a writ of mandamus, which basically says, you have to do this, which had been granted to the Supreme Court in, like, an act in 1789.

• 41:12Josh Clark?

  Marshall said, so yes, Madison has to give this over. Like, this is just part of his duties and he's following a law that Congress made. So he's subject to that law as a minister of the government. But at the same time, the writ of mandamus power that the Supreme Court has been given is unconstitutional. We're not in a position to issue a writ of mandamus because under the Constitution, we're not given that right. And so in doing that, he established the Supreme Court as the interpreter of what law is constitutional and what isn't.

• 41:46Speaker 05

  Right.

• 41:47Josh Clark?

  And he did that by saying, this law that gives us this amazing power is unconstitutional. So he did it by taking power away from the Supreme Court. But in doing so, he gave the Supreme Court a tremendous, a tremendous advantage over the centuries in interpreting what law is constitutional and what isn't, and placing itself as the arbiter of disputes between the legislative branch and the executive branch.

• 42:10Speaker 05

  Yeah, which is, I mean, that's a lot of what the Supreme Court decides is constitutionality.

• 42:15Josh Clark?

  And it's, it all comes from that 1804 case.

• 42:18Speaker 05

  Landmark.

• 42:20Josh Clark?

  Legal, legal.

• 42:21Speaker 05

  Should we take another break?

• 42:22Josh Clark?

  Sure, man.

• 42:23Speaker 05

  All right, we'll take another break and talk a little bit about, a little bit more about Nixon and what some other presidents have done when slapped with a subpoena, right after this.

• 42:45Josh Clark?

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• 43:03Speaker 04

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• 43:18Josh Clark?

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• 43:30Speaker 04

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• 43:54Josh Clark?

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• 44:03Speaker 04

  But a lot of people still talk themselves out of therapy. They think it's too expensive, they're not sure if it'll actually work, they don't know how to find the right therapist, or they just get overwhelmed trying to navigate the whole system.

• 44:13Josh Clark?

  And that's exactly what Rula is built to fix. Rula makes therapy feel a lot more approachable, a lot more human. You can find a therapist who actually fits your needs, not just whoever's available. And with insurance, sessions average around $15 copay.

• 44:27Speaker 04

  Yeah, you can sign up in just a few minutes, you can get matched with the right provider, and even book something as soon as the next day.

• 44:33Josh Clark?

  And it's not just about starting. Rula helps you stay consistent and actually make progress, because taking care of your mental health isn't a one-time thing. So if you've been thinking about therapy, don't talk yourself out of it. This is a really easy way to take that first step.

• 44:45Speaker 04

  So turn off the talk track that's keeping you from progress and head to rula.com, that is R-U-L-A dot com, to find a therapist the easy way.

• 45:07Speaker 05

  So, we all know what happened to Nixon.

• 45:09Josh Clark?

  What?

• 45:10Speaker 05

  The justice did rule that, hey dude, you gotta comply with this doocy's tech them here. And you gotta turn over these tapes. So Nixon turned over tapes.

• 45:22Josh Clark?

  He did, and it all worked out in the end. Everybody's like, this is what you were protecting? This is fine, man. Stay present in for a couple more terms. And he did. And the world was a better place for it.

• 45:32Speaker 05

  That's right. Flash forward to Bill Clinton.

• 45:37Josh Clark?

  That was okay.

• 45:39Speaker 05

  So he said, hey, listen, man. What goes on?

• 45:42Josh Clark?

  That was much better.

• 45:44Speaker 05

  What happens in the Oval Office stays in the Oval Office. Executive privilege. And they're like, mm, even that stuff? And he said, well, you know, it's executive privilege.

• 45:56Josh Clark?

  Pankey, pankey, falls under executive privilege.

• 46:00Speaker 05

  So he said, I have executive immunity. I have that privilege. And neither me nor my aides have to respond to these subpoenas.

• 46:07Josh Clark?

  Right.

• 46:08Speaker 05

  And then he fell into line, eventually.

• 46:11Josh Clark?

  Yeah. Newt Gingrich got him into line.

• 46:14Speaker 05

  Well, yeah. And largely because of US v Nixon, they said, you know what? You can't stand by this broad executive privilege, stand behind this wall that you've built. You're gonna have to comply. And he did, eventually.

• 46:30Josh Clark?

  Right. Which is traditionally what happens. Like, the Congress issues subpoenas, the executive branch ignores it, the Congress holds the executive branch in contempt, and then the judiciary comes in and almost always says, no, you're overexerting your executive privilege. Do what they're saying.

• 46:49Speaker 05

  Yeah, which, you know, that gives me hope. Because in the past, precedent has been set that due process wins out over executive privilege, kind of across the board, it seems like.

• 47:00Josh Clark?

  But that only holds as long as two things are upheld. One, that the Supreme Court is an independent body, regardless of who appointed the judges. And then two, if the, as long as the executive branch recognizes the authority of the Supreme Court.

• 47:22Speaker 05

  Right.

• 47:23Josh Clark?

  And this is where we are starting, like, some people can see... Far enough along this horizon that, hey, this path we're heading down right now, there's a point where we could reach where they could be, there could be a Supreme Court decision that says, yes, executive branch, you have to hand over these aides for testimony. They have to come testify about, you know, Russian interference in the 2016 election, or this call between the president and the Ukrainian president. And the executive branch still says no.

• 48:00Speaker 05

  Yeah.

• 48:00Josh Clark?

  And that is the point that everyone says, we have no idea what happens then. We have no idea. Do you go arrest these, you know, the Secretary of the Treasury? Do you go arrest these cabinet members? This has never been done before. Like, what remedy do you really have? And that's where, that's where we are with testing out this unitary executive theory. How far can you kick the, the, the kind of unwritten rules of the Constitution? Well, there's lots of written rules of the Constitution, but also like the, the unwritten rules and procedures that kind of have, have guided all of this for so long. What happens when those things just stop being recognized as valid? What do you do?

• 48:45Speaker 05

  Well, I don't know. Because in the, in the past, through our history, and this is on both sides of the, of the aisle, Democrats and Republicans have always, not successfully, but they've always tried to argue that courts should not get in these subpoena battles and should not get involved with this executive privilege claim.

• 49:06Josh Clark?

  Right, and in particular, Trump's latest, Trump's legal counsel's latest position, which I think came out in September of this year. It's a doozy. It basically takes, and here's something we need to remember here. Like, this is not brand-new with Donald Trump, right? Like, if you can't stand Donald Trump, this is, this is, his White House, his administration is building on stuff that previous presidents have built on, both Democrats and Republicans alike.

• 49:36Speaker 05

  Yeah.

• 49:37Josh Clark?

  There has been a real push, basically since Nixon, to instill as much power into the presidency and the executive branch as possible. And this is an extreme version of that, but it's still kind of following the same path. But what they're doing is more aggressive than what previous administrations have done. And they're basically saying this: If you subpoena us, the executive branch, if you, the Congress, subpoena one of our people.

• 50:06Speaker 05

  Right.

• 50:06Josh Clark?

  Any of our people, for any reason whatsoever, the president can say, "No, do not respond to that subpoena. Do not go before Congress. Do not hand over those documents. I'm the president. I'm ordering you to." Congress can issue a writ of contempt, or find the person in contempt. But that's it. That's where it ends. Because the president can say, "Well, this is an interbranch dispute between the legislative branch and the executive branch. And because the judiciary can't be drafted, or shouldn't be drafted, in to solve these disputes, that's all it will remain, is an interbranch dispute.

• 50:46Josh Clark?

  And the Supreme Court really has no purview in deciding these cases."

• 50:52Speaker 05

  Yeah.

• 50:52Josh Clark?

  And when you have that, then that means that the executive branch has been removed from the oversight of law. It becomes above the law. The law no longer applies to it. And so whatever the president wants to do, whatever the president directs his or her agencies to do, is de facto legal, just because the president and the executive branch are not subject to the laws of the land, including rulings by the highest court in the United States. That's what the latest argument is setting us up for.

• 51:23Speaker 05

  Yeah, I mean, this is what the Justice Department, there was a great article in the Washington Post by Harry Lippman, called "The Justice Department's Outlandish and Arrogant Position on Congressional Subpoenas."

• 51:34Speaker 05

  And this is from the article. It said, according to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce subpoenas in the federal courts where the executive branch has decided not to do so.

• 51:47Josh Clark?

  Right.

• 51:48Speaker 05

  So basically, yeah, they said no. And so they said no.

• 51:51Josh Clark?

  And all of this arose from an opinion regarding Trump's tax returns, I believe.

• 51:57Speaker 05

  Yeah, that's sort of where the whole thing got started.

• 52:00Josh Clark?

  Yeah, where the Treasury Secretary, Steven Mnuchin, said, no, we're not doing that. And Congress said, well, we're holding you in contempt. And then the Office of Legal Counsel from the White House issued this opinion. And I mean, it's a doozy, but it's also saying, like, what are you guys going to do? What can you do? And that's the big question now.

• 52:18Speaker 05

  Well, and it makes you wonder what would have happened if Daryl Ice's bill had gone through that makes subpoenas super enforceable.

• 52:26Josh Clark?

  Right.

• 52:27Speaker 05

  Because, you know, we've seen it again on both sides of the aisle where one political party will get mad and vote something in that will come back to sting them later on.

• 52:40Josh Clark?

  Right.

• 52:41Speaker 05

  On the hind end.

• 52:42Josh Clark?

  It is, but also, you also can't help but wonder, like, will, like, is, are Republicans' loyalty to Congress greater than the Republicans' loyalty to the executive branch?

• 52:58Speaker 05

  Right.

• 52:59Josh Clark?

  It's like, you know, in any restaurant, there's tension between the waitstaff and the kitchen staff. But they're all working at the same restaurant. They're all trying to do the same thing, which is get high-quality, nourishing meals out to the patrons who are citizens like you and me, right?

• 53:13Speaker 05

  Uh huh.

• 53:14Josh Clark?

  But there's still tension. You're not doing it fast enough, or you burn these fries, or something like that. But we benefit from that tension. We, the patrons of this restaurant that we call America.

• 53:24Speaker 05

  That's right.

• 53:25Josh Clark?

  Well, what happens with...

• 53:26Speaker 05

  And at the end of the day, everyone just goes behind the restaurant and smokes a joint by the dumpster.

• 53:30Josh Clark?

  You know, maybe that would make our Congress or our government work more efficiently if the executive branch and the legislative branch and the judicial branch all got together and burned a doobie together.

• 53:41Speaker 05

  By the grease trap.

• 53:42Josh Clark?

  Right, exactly. I don't even remember what my analogy was meant to assert.

• 53:47Speaker 05

  I'm so sorry.

• 53:47Josh Clark?

  But it's fine. But we are witnessing some historical stuff right now that is not normal at all. I mean, like, from Watergate stuff. And I'm not even relating to impeachment proceedings. I'm just saying, like, this level of ignoring congressional subpoenas may be unprecedented. And if not, then the closest historical precedent we have is the Watergate scandal.

• 54:14Speaker 05

  Yeah.

• 54:15Josh Clark?

  But I think Congress is one recourse to say, that's fine. That's fine, Mnuchin. You just ignore us. We're going over here as Congress, and we are altering our ability to jail people to say, no, actually, we can fine you $250,000 a day, and we will do it. That could be the leverage that gets people to actually comply with these subpoenas. But we'll find out. Because if Congress has to actually pass a law to do that, the president has veto power over that.

• 54:45Speaker 05

  Well, and there are also all sorts of other things that have nothing to do with this that Congress uses as leverage or negotiation tactics like, hey, do you want us to push through some of these appointees? Or should we just keep stalling forever?

• 55:00Josh Clark?

  Right.

• 55:01Speaker 05

  All kinds of that stuff is on the table. But when you have a president that comes out in January and says, you know what? I don't mind. Stall all you want. I like the term "acting" because that gives me more leeway.

• 55:13Josh Clark?

  Yeah.

• 55:14Speaker 05

  Then, all of a sudden, that's not leverage anymore.

• 55:17Josh Clark?

  You got anything else?

• 55:18Speaker 05

  No. Very curious to see what happens with this McGahn case. Probably nothing.

• 55:21Josh Clark?

  I am too. Will it be the crumbling of our democracy? Who knows? We'll find out in a few years.

• 55:27Josh Clark?

  If you want to know more about subpoenas, well, just go look it up. And if you get a subpoena yourself, get a lawyer. Don't be stupid. And since I said, "Don't be stupid, friends," it's time for Listener Mail.

• 55:39Speaker 05

  I'm gonna, this is about Obama's healthcare. I got a bunch of stuff about this. I didn't realize I made a prediction.

• 55:49Josh Clark?

  Oh, okay. Oh, yeah, yeah, yeah.

• 55:50Speaker 05

  This one's kind of been sitting in the coffers.

• 55:53Josh Clark?

  Okay.

• 55:53Speaker 05

  Guys, about 15 months ago, I started my journey through the Stuff You Should Know Archives. I've been on a steady campaign about 12 to 16 episodes a week.

• 56:01Josh Clark?

  That's healthy.

• 56:02Speaker 05

  Wow. Why I'm writing, though, 10 years ago, Chuck made a bold prediction in the rumors, the myths, and truths behind Obama's healthcare plan episodes. Didn't we do like four of those?

• 56:14Josh Clark?

  Um, we did. Yeah, I think we did four. You're right.

• 56:18Speaker 05

  But this one was specifically about that episode. Chuck, I said, "Call me in 10 years if there are no more private insurance companies," because that was one of the big knocks on it. It's like, this is gonna do away with private insurance, and I'll buy you a beer.

• 56:32Josh Clark?

  It would've been tragic.

• 56:35Speaker 05

  Chuck legitimately said, "I'm on record," and he extended the bet to anyone out there. Now, that statement was more of a gentleman's bet than a legal promise. However, that is more binding, in my opinion. Nonetheless, I would like to congratulate you, Chuck. I was getting worried there for a second.

• 56:50Josh Clark?

  [laughing]

• 56:51Speaker 05

  On the expiration of that term and that promissory statement, that could've been a pretty pricey liability if things turned out a little differently.

• 56:58Josh Clark?

  A million beers, Chuck. Every single one of our listeners would've written in and asked for it.

• 57:03Speaker 05

  I know. That is from Jack Simmons.

• 57:06Josh Clark?

  Nice going, Jack, and welcome to the club. We're glad you've found us, and even more so that you like us, so we'll do our best to keep it up for you and everybody else.

• 57:15Speaker 05

  That email's a couple of months old, though. He's probably forgotten about us already.

• 57:18Josh Clark?

  That's right. He's moved on to Pod Save America.

• 57:21Speaker 05

  That's right.

• 57:22Josh Clark?

  Well, if you want to get in touch with us, like Jack did, you can go on to stuffyoushouldknow.com, check out our social links there. You can also send us an email. Wrap it up, spank it on the bottom, and send it off to [email protected].

• 57:40Speaker 06

  Stuff You Should Know is a production of iHeartRadio. For more podcasts, iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

• 57:55Josh Clark?

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• 58:27Speaker 07

  Hello?

• 58:28Speaker 08

  Hey, it's me, your wallet.

• 58:30Speaker 07

  Oh, hey.

• 58:31Speaker 08

  I was just wondering if we could maybe take it easy this week?

• 58:34Speaker 07

  Absolutely.

• 58:35Speaker 08

  Really?

• 58:36Speaker 07

  Yep, I'm shopping at Food Lion.

• 58:38Speaker 08

  Wait, you mean low prices?

• 58:40Speaker 07

  And MVP savings.

• 58:41Speaker 08

  Oh, you do care.

• 58:43Speaker 07

  Obviously.

• 58:44Speaker 08

  Okay, I feel better.

• 58:45Speaker 07

  Good, now let's go get some snacks.

• 58:49Speaker 09

  At Food Lion, low prices and MVP savings make it easier to shop for what you need without spending more than you have to. When your wallet needs a little TLC, head to your local Food Lion or shop at foodlion.com. This is an iHeart Podcast. Guaranteed human.