Topics of Discussion:
- Listener Feedback re IVF
- Beth Kingsley’s Homework on Foreign Election Interference
- T3BE – Answer
Thomas: Hello and welcome to Opening Argument! This is episode 334, I’m Thomas Smith, that’s Andrew Torrez! How’re you doing Andrew?
Andrew: I am doing fantastic Thomas! We just recorded episode 35 of Law’d Awful Movies!
Andrew: We watched the pilot of Bluff City Law and, you know, they’re all great.
Andrew: All of our Law’d Awful Movies are great, I dunno, I felt like this was a pretty good episode.
Thomas: It was great, it was fantastic, that show was every bit as bad as I wanted and more.
Andrew: Oh god.
Thomas: So much bad law! So much Andrew. A lot of cursing, actually. Also so much Andrew banging his head on a wall, it was fantastic, don’t miss it, go to patreon.com/law, hop on it. Seriously, those Law’d Awful Movies are a ton of fun, it’s funny but you also learn a lot in the process about how bad people are at writing law! [Laughs]
Thomas: In shows and movies and stuff.
Andrew: Yeah, and you are so good at screen writing.
Andrew: Contemporaneous screenwriting, so we come up with, between the two of us we’re like well we could have written a better script than this in like five minutes.
Thomas: Oh, yeah, we really should! We really got to get – hey, MBC, call us! We’re here. Okay.
Thomas: Actually, before we get going I wanted to say one thing quickly, we did a shoutout for Vulgarity for Charity and it was pointed out, I think we gave Cognitive Dissonance a little bit of short shift on that – shrift?
Thomas: I never know, is that a thing? Short ….
Thomas: As I said it I was like “what is a shrift?”
Andrew: That’s when you get released early from Jack In the Box. No it’s not.
Thomas: Short shrift.
Thomas: What is shrift? Do you ever hear shrift used in any other context?
Thomas: Anyway. The shrift of what I’m trying to say…
Andrew: Peppridge Farm remembers!
Thomas: Cognitive Dissonance Podcast is also, they are not under the umbrella of Puzzle in a Thunderstorm, so I just wanted to give them a special shoutout too because they are part of the Vulgarity for Charity and they do it along with the Puzzle guys.
Andrew: Did Cecil call you and tell you he’s disappointed?
Thomas: Yeah, I got yelled at for a long time! No, I’m just kidding. No, it’s important, they are every bit as much a part of-
Thomas: -raising all that money for charity.
Andrew: Yeah, and CogDis is a great show!
Thomas: Great show, great guys.
Andrew: I’m sorry that I said, because this is on me.
Thomas: It’s your bias.
Andrew: This is on me, I said Puzzle in a Thunderstorm, and that’s on me!
Thomas: That’s alright, I just wanted to give them a shoutout, I love those guys.
Andrew: Sorry Cecil, sorry Thom, we do love those guys!
Thomas: And toon into an upcoming CogDis, not sure when it’s coming out but I’ll be on and it was a lot of fun, it’ll be really funny, so yeah, shout out to those guys we love them!
Thomas: Okay, you have a quick Andrew Was Wrong?
Andrew: I do have an Andrew Was Wrong, only about 87,000 people pointed out on the basis of last Thursday and Friday’s episodes that I called Gordon Sondland the Ambassador to Ukraine, and he was of course the Ambassador to the EU, which makes it – and I knew that and it was just-
Andrew: Look, you know, there’s a lot of stuff going on. But mia culpa on that and as you 87,000 people have helpfully pointed out, Ukraine is not in the EU, so it just adds to the overall why is Rick Perry here? Why is Rudy Giuliani here? And you could add, why is Gordan Sondland there?
Thomas: Well I do think-
Andrew: So I was definitely wrong on that.
Thomas: The EU wants them, right? I think that’s part of the political process has been are they going, is Ukraine going to be cozier to Russia or kinda go along the EU route?
Thomas: So it kind of makes sense that he’s in the mix, but yeah, it is weird.
Andrew: Yeah, but he shouldn’t be directing policy-
Thomas: Right, right, absolutely.
Andrew: -in Ukraine. We kinda have some important things going on in the EU right now, so, you know, you’d think that would-
Thomas: Yeah, like he doesn’t have enough to do you’re saying? [Laughs]
Andrew: Right, with Brexit? You know, so anyway I was definitely wrong on that, sorry. Breaking news! I literally, as we are recording this, 30 seconds ago, I will not out the person, but I got a really, really important text message that said “while not confirmed, it has been reported that Motley Crue will be teaming up with Def Leppard and Poison-
Andrew: -for a monster concert tour next year” so-
Thomas: Alright. [Laughs]
Thomas: Do I get to talk about my Sharks then? How does this work?
Andrew: Yeah, you talk about your Sharks like every third episode!
Thomas: Sharks started off as the worst team in hockey for no reason and now they’re on a nice 5 game win streak.
Thomas: Almost back to 500, so there you go.
Andrew: There we go. Alright!
Thomas: Now we’ve updated everybody on the important things, so let’s talk law. Here we go! What’re we talking about today? We’ve got some more info and stuff to talk about regarding embryos and freezing stuff, all that good stuff, we’ve got some actual scientists who wrote us in, other people wrote us in who’ve gone through the process so we’ve got some stuff there. Then our main segment we’re going to be talking about something called LIHEAP that I’ve never heard of that Andrew’s gonna explain to us, an Overton window shift of extraordinary proportions because this, I hear, was a Reagan initiative but now all of a sudden is probably being labeled as Commie Liberal territory I’m guessing?
Thomas: Okay, cool. So that’ll be fun, nice and uplifting. Then the C Segment is a wild card, we’ll see if we get to it, I dunno. Andrew [Laughs] depends on how many bullet points Andrew has and if he gets through them in a reasonable time.
Thomas: So that’ll be a wild card segment, we’ll see. So that’s our agenda for today, why don’t we get going?
Andrew: Yeah, let’s do it!
Listener Feedback re IVF
Thomas: Okay, so where do you wanna start on the human embryo stuff?
Andrew: So this was – I was really, really happy about our discussion in episode 330 on the Connecticut decision regarding embryos. I do want to bracket, we occasionally fell into some gendered language in that episode and we both apologize for that and we’ll try and do better going forward.
As part of the legal discussion we had a bunch of people write in including a couple of scientists who work with early human embryonic development and a really great letter that we got from a mom that underwent IVF and sent us a copy of her blank contract, so she has some insight into the whole was this real consideration? Was it something that you bargained for with respect to the check boxes and everything, so I thought we would take a look at some listener feedback for the A segment.
Thomas: Alright, yeah. Well when you have the smartest listeners in the world like we do, that’s good feedback. Alright, we’re gonna start with listener Jonathan Gollob who says “Good morning. IVF and pre-embryos came up in OA 330. I am a published scientific author specifically on early human embryonic development and I figured I could point you to some resources that define some of the basic biology. Gilbert’s Developmental Biology is the dominant text on early mammalian development, IVF generally saves fertilized embryos at the blastocyst stage, although with advancing IVF tech it is now possible to freeze back unfertilized eggs and sometimes freezing can occur at a slightly early stage.
A blastocyst is like a beach ball with a teeny beanbag or inner cell mass inside at the bottom. The outer encasement of cells can become all of the supporting structure of a pregnancy, the amniotic sack, placenta, etc, the inner cell mass can go on to make all of the tissues of a human being. The blastocyst stage is where the pre-embryo waits until implantation occurs. It sometimes does not before proceeding, hence a good time to try to freeze now and then thaw later just before implanting.
The blastocyst stage has a few interesting attributes. A blastocyst is not an individual, if the blastocyst as a whole splits or the inner cell mass splits into two, two bean bags instead of one, identical twins result. This is more likely to happen in IVF compared to ‘natural pregnancy’ (in quotes). Many, perhaps most, blastocysts fail to develop into a live birth in both IVF or natural pregnancy and the inner cell mass cells from discarded embryos can be turned into embryonic stem cells. These cells can be expanded and retain the ability to become any cell type in the body. This allows for experimental therapies such as repairing hearts after heart attacks, thus this is a possible disposition of leftover frozen embryos no longer needed for reproduction. Hop this is useful, Jonathan.”
Yeah well that’s a nice biology lesson there for sure!
Thomas: A lot of stuff I didn’t know-
Andrew: Yeah, a lot of stuff I didn’t know!
Thomas: Including humans are actually just bean bags? Didn’t know that.
Andrew: [Laughs] No, it answers, or starts to answer, the pre-embryo question that I asked as to why the Court seized on that. Again, if you’re thinking about this in the context of the abortion discussion, learning that the IVF blastocysts contain both the material that could make one or more human beings as well as the material that makes the amniotic sack, the placenta, everything else, all in one mass-
Andrew: I thought the bean bag with the beach ball around it, I thought that was super helpful in understanding the science as it plays in with the law and the politics of this. It totally makes sense as to why the Court used that phrase, “pre-embryo,” at this point. Even though – the letter I’m gonna read from, Valerie Smith, I think speaks to why it sort of stuck out to me. That is that in IVF, and I told you I had some firsthand experience with this, the terminology that’s generally used is “embryo,”-
Andrew: -and not “pre-embryo.” Valerie speaks to that. So let me go to Valerie’s email. She, like I said, she attached a blank version of her contract which we’re gonna attach in the show notes. This really speaks to the question that the Connecticut Supreme Court overruled the trial court on and said no, the fact that they’re checkboxes does not mean that it’s not a valid contract and not valid consideration. That’s really where Valier comes out in her discussion of this as well.
She says: “Regarding the contract for IVF patients, I attached a blank version of my contract that my husband and I had to fill out and have notarized before we could start the process. Our clinic offered more options than the four listed in today’s episode, such as donate to scientific research-
Andrew: -and donate towards clinical quality control and training. I personally appreciated the simplicity of the checkbox system and I found that in no way did it make the contract less official,” that’s an interesting insight. “I’m an IVF mom. Regarding the process of IVF and how we get from the initial fertilized IVF to a frozen embryo, there are several things that extreme pro-lifers might take issue with.
First, a little bit of nomenclature, what’s frozen isn’t an embryo but a blastocyst” and we just heard the science on that. “A blastocyst only becomes an embryo once the amniotic sack develops at approximately week 5 of pregnancy. I don’t know why in the IVF contract world blastocysts are called embryos. The procedure to transfer a blastocyst into a woman’s uterus is even called an ‘embryo transfer’ which makes no sense! Also a frozen blastocyst definitely contains more than one cell. I do understand the point Andrew was making” (so that’s another Andrew Was Wrong, mia culpa on that one).
“Secondly, not all fertilized eggs make it to freeze. The day following my egg retrieval procedure I got a call from a fertility clinic telling me that I was one of the lucky ones and that all 18 of my eggs had fertilized. Five days later I was told that six of those eggs had made it to a freeze-compatible blastocyst, and that the embryologist was closely monitoring four others. We ended up with eight frozen blastocysts.”
Then she adds, politically, and I think I’m gonna read it here, I think this is a totally fair opinion. “What do pro-lifers want us to do with the fertilized eggs that stopped developing after 1-2 days? If life begins at conception then should we have funerals for our fertilized eggs that don’t make it to freeze? Asking for a friend.” Well, you know, don’t give advice, who knows.
“Thirdly, there is a grading system for blastocysts.” I did not know any of this, this is really fascinating.
Andrew: So “even if they’re still ‘alive’ (she puts in quotes) five days following fertilizations, many clinics routinely do not freeze (quote) ‘substandard blastocysts’ who have less of a chance to be successful. The science behind blastocyst grading as I understand it is quite subjective, and while embryologists do the best they can it is conceivable that blastocysts that could have become babies are discarded before freeze. This is, in my opinion, something IVF clinics could do better at explaining to their patients as there are families who don’t end up with a ton of blastocysts, if any at all, and they may want to attempt to transfer no matter what the grade.” Really, really fascinating.
Andrew: And then lastly she points out, this is the kindest Andrew Was Wrong ever so I appreciate this. “The logistics of keeping blastocysts is a little more complicated than presented in the episode. Many IVF clinics have a limit as to how long they will store your blastocysts, in our case that limit is five years. Not because of a limit of shelf life, last year a baby was born who had been a frozen embryo for 24 years, but for logistical reasons. After five years if we so choose we can have our blastocyst transferred to another facility which will most likely cost much more, or” then she’s got a side note on that’s another political question. If they’re going to be stored indefinitely who’s gonna pay for that?
Andrew: The parents, the IVF clinic, the State? Who knows? Then she adds, “As for my husband and I, our journey is most likely complete, I’m currently 19 weeks pregnant-
Andrew: -with two formally-frozen babies who are due in March. So we have six blastocysts in a freezer in Jacksonville and we’ll be paying for storage until we’re absolutely certain we’re done having kids and then we will donate them for scientific research.”
Andrew: So congratulations, thank you so much for the email!
Andrew: This was really, really fascinating.
Thomas: Two great emails, yeah!
Andrew: Yeah yeah yeah! Absolutely. I thought that provided just a lot more information around our discussion, it helped fill in a lot of the gaps in my knowledge and so, like you said, I really appreciate our listeners, I love that they were there to help us out!
Thomas: Yeah, good stuff. Okay, interesting. Neither one of us is a scientist and we’re not even gonna pretend to be!
Thomas: It’s much easier to read a brilliant email from someone who actually knows what they’re talking about because, let’s face it, we’ve got enough to do with law questions in the Trump era. You don’t need to get any more degrees or anything, Andrew, we’ll let the scientists handle it. What do you think? [Laughs]
Andrew: I’m with ya!
Thomas: Alright, anything else on embryos and blastocysts and beach balls and bean bags?
Thomas: No? Okay, well we’re all set. Let’s talk about what I’m quite sure is gonna be a fun depressing story about Overton window shifting. Let’s talk about LIHEAP.
Andrew: Here’s the problem. I’m gonna start with the most depressing parts, and then I’m gonna get more depressing from there. In the United States every year 1,330 people die of hypothermia.
Andrew: That is, they freeze to death. Most of these people are not homeless, most of these people have homes but they face a dilemma that we call “heat or eat.” It’s exactly what it sounds like. 2018 data, nearly a third of households in the United States struggle to pay their energy bills – that’s from the Energy Information Administration. The differences among these households are minor in terms of geography, so across the United States. About one in five households had to reduce or forego food, medicine, or other necessities in order to pay their energy bills.
As you might imagine, we’ve talked and plugged Modest Needs and Vulgarity For Charity, that was part of the inspiration for this segment.
Andrew: People at the margins have trouble paying their energy bills. According to the report, now I’m gonna quote, “of the 25 million households that reported foregoing food and medicine to pay energy bills,” just stop and think about that. 25 million households have said, “yeah, we didn’t put food on the table” or “we didn’t get medicine in order to pay our heating bills.” “7 million face that decision nearly every month.”
Andrew: “More than 10% of households kept their homes at unhealthy or unsafe temperatures.” Now this is a problem that is historic in this country, so the Overton window part is – I wanna talk to you about the halcyon days of 1981.
Andrew: 1981 is when Ronald Reagan one a 40 State landslide over incumbent President Jimmy Carter and proclaimed “government isn’t the solution to the problem, government is the problem.” Ushered in a red wave of Republicans taking back the House and the Senate and led to the formation of the Democratic Leadership Committee that was designed to push the Democratic party to the right.
They had internal memoranda which has since been published which said look, other than 1976 where Jimmy Carter very narrowly won over an incumbent Gerald Ford after the Nixon administration in which we think any Democrat would have won, our Democratic candidates have been crushed/
Andrew: And we’re sick of that. They got crushed in ’72, they got crushed in ’80, they got crushed in ’84, they got crushed in ’88, and so it led the Democratic party – I’m not saying that I think that this was the right strategy, but as a practical basis it led to soul searching in the Democratic party, it led to a more conservative Democratic nominee in Bill Clinton who won in ’92 and ’96.
So this was the start of that Reagan revolution that kicked all of that off, and I want to tell you that Ronald Reagan’s response to people freezing to death in the United States was not “well that’s a great thing!” His response was, with a Republican President and a Republican Congress, to get together and pass LIHEAP.
Thomas: And we’re gonna find out exactly what LIHEAP stands for after this break!
[Commerical – noom.com/oa]
Thomas: Okay, what is it? LI-HEAP… LA- LE? I know it, I just need you to say it first.
Andrew: So LIHEAP is the Low Income Home Energy Assistance Program.
Andrew: L-I-H-E-A-P. Here’s what makes it a Republican program: it is a block grant from the federal government to the States where States are free to administer it as they see fit, some States give the money directly to the utility company, and the stated reason for that – you know, you can come up with nefarious reasons-
Andrew: But the stated reason for that is kind of like Modest Needs, the idea is if we directly pay the utility company for your heating bills then there will be no interruption in your service whereas if we make it a grant that goes directly to individuals then there may be an interruption in service where you’ve gotten your third notice and they shut it off then you send in the payment.
Certainly, look, I don’t wanna lionize Ronald Reagan and 1980-era Republicans, okay? [Laughs] Certainly some of the reason, the major argumentation for block grants in ‘80s Republican conservatism was the notion of waste, fraud, and abuse, and Ronald Reagan was a monster at perpetrating stories of welfare queens driving Cadillacs, which by the way had a massive racist component to them as well.
So look, I’m not trying to give an artificial view of history, I’m trying to tell you that where conservatives were 40 years ago was not “eh, poor people, clownhorn ‘em.” The conservatives were, look, obviously in a normal sane humane society we do not want people freezing to death so rather than come up with a welfare-style program where we just write them a check, let’s have this LIHEAP program that will go to the States and the States can figure out how best to administer it.
That grant requires that States administer – the law is still on the books, 42 U.S.C. § 8621. Let me add, by the way I mentioned this was passed in 1981. This was one of the very first things that Ronald Reagan with his newly-Republican Congress in the conservative revolution did.
Andrew: They passed this LIHEAP program that says States can give up to 150% – eligible recipients can make up to 150% of the federal poverty line or 60% of the State median income, whichever is higher, but no higher than that, and that States may adopt lower limits but not lower than 110% of the poverty line. In other words, these are folks who generally do not qualify for other forms of public assistance, these are people who either rent – overwhelmingly most of them rent – or own their own homes but face that problem of heat or eat. It’s administered by the Department of Health and Human Services which has discretion for how to set the funds and, like I said, it is a situation where the States get to decide whether they make those payments directly to individuals or to the utilities.
It will not surprise you that LIHEAP has been considered drastically underfunded over its 40 year, nearly 40 years.
Thomas: Really? How much money could that even be? It’s not that much, right?
Andrew: So the last year for which LIHEAP was funded was $3.6 billion.
Thomas: Oh, okay.
Andrew: And that gets to only 20% of eligible households.
Andrew: Olivia Wein of the National Consumer Law Center just this year noted several convergent factors. So in addition to noting that only about 20% of eligible households get the money, part of the confirming research is that the number of low-weight children that are born in Boston – obviously Boston gets super cold in the winter-
Andrew: In the three winter months it is a statistically significant difference that there are more extremely low-weight children in the three months following the coldest months when compared to the rest of the year. That study, the inference drawn from that study is that those children are being drastically underfed during the winter months. She’s got the controls on the study.
Andrew: There are other problems, too. So in addition to the heat or eat, what people do when they can’t afford to pay their heating bills is they jerry-rig ways to keep warm. So if you’re in – this is one of the things that’s incredibly common is if you’re in an apartment where the landlord pays for some of your utilities but you’re responsible for your heating, that people will turn on their ovens and leave their ovens open.
Andrew: I’m not making that up. People will buy space heaters. So if your electrical is included but your home heating is not, they’ll buy a bunch of space heaters and plug them all in, and I’m gonna quote from the research here: “Families resort to using unsafe heating sources such as space heaters, ovens, and burners, all of which are fire hazards. Space heaters pose 3-4 times more risk for fire and 18-25 times more risk for death than central heating.” So that’s a real problem.
2019 survey of LIHEAP recipients, 36% reported going without food for at least a day, 41% went without medical or dental care, 31% did not fill a prescription or took less than a prescribed dose in order to stretch their supply. That’s the agonizing choice that people face. This is gonna be the easiest question I have ever asked you on the show. Guess how much was allocated for LIHEAP in Trump’s 2018 budget?
Thomas: Hmmmm… zero?
Andrew: Zero in 2018, zero in 2019. Now fortunately Congress passed a continuing resolution that kept the funding at 2017 levels, which is $3.6 billion, but I wanna read you what the Trump administration wrote:
“2019, does not include funding for LIHEAP,” this is their writing, not mine, “which is a decrease of $3.4 billion from the fiscal year of 2018 continuing resolution level. This continues the proposal from the 2018 budget. In a constrained budget environment, difficult funding decisions were made to ensure that federal funds are being spent as effectively as possible. Some utility companies and State and local governments also provide heating and cooling assistance. Many States limit regulated utilities from discontinuing heat or cooling during specific timeframes such as certain winter or summer months and/or a certain number of consecutive days where the temperature drops below or increases above a certain level.” I’ll provide that link in the show notes.
So there is your Overton window. We have gone from okay, we’re not gonna have a welfare program but we are gonna have block grants to the State which they can even send directly to a utility company. We can make direct payments from tax dollars to your-
Thomas: To companies! That’s what we want!
Andrew: Yeah, businesses! That is now bloody socialism and the response is well, you know, it’s a constrained budget environment. We can absolutely-
Andrew: -have unfunded corporate tax rebates, but no, we cannot have funding for Low Income Home Energy Assistance Program. So I guess, and this is – we can’t say this enough on the show. I still continue to see the occasional far left critic that shows up in our OA discussion group or on my Facebook wall or whatever that says “well you know they’re all the same.” They are not all the same. I just read you the Trump Administration’s proposal for what to do with the fact that it’s freezing cold in Boston every year, is welllll I’m pretty sure they won’t die that badly.
The Democratic approach was – again, you wanna say it doesn’t go far enough, I’m with ya! That was the first 10 minutes of this segment, the Democratic approach doesn’t go far enough is definitely not “let’s kill this program and let them fend for themselves.” That is one of a billion things that is a real difference and if you’re not motivated to take back the government in 2020 regardless of who the nominee is, all I can do is keep running these segments.
Thomas: Yes, the very least we can offer is a platform of maybe people freezing to death is bad. At the very least, I’m just saying, minimum.
Andrew: Yeah! Look, again, you did this on SIO a couple of episodes ago and [Laughs] I always wanna echo that but look, none of us want Joe Biden to be the nominee, Joe Biden’s 2021 budget will not try and slash LIHEAP to zero and that makes a real difference.
Andrew: Joe Biden will not vote to continue to put kids in concentration camps at the border. I’m beatin’ a dead horse, but I feel like a lot of dead horses are piling up in my social media, so-
Andrew: I felt the need to get on the soapbox a little bit there. So that is LIHEAP and that is where our politics have moved in two generations, it’s moved from why don’t we have the States take over this problem in a public/private partnership to eh? Clownhorn ‘em, I don’t care that people freeze to death. If that’s not meaningful to you, I don’t know what to say.
Thomas: Well we need that money for a bloated military and to give the biggest tax cut in history to the richest of the rich in the country.
Andrew: Which by the way had zero percent effect on growth.
Andrew: But anyway, so there ya go.
Thomas: Had to be done! Trickle down! Maybe it’ll trickle down to … warm the people who’re gonna freeze? I dunno, I’ve got nothing, I don’t get it, it’s amazing.
Thomas: Well I think we have time for our Wild Card Segment, then! How about it, let’s go to our Wild Card bonus segment!
Andrew: Are you proud of me?!
Thomas: I am very proud! I don’t know what you must’ve done to make this happen! [Laughs] There must’ve been several deep dives that you decided not to go down.
Andrew: I cut –
Thomas: Many trails!
Andrew: I was feeling a little self-conscious after your roast of me yesterday, which folks will be able to hear on Cognitive Dissonance, so maybe I cut 9 bullet points from this discussion? You’ll never know!
Thomas: My only roasts are things that are actually hidden compliments and still funny, that’s my goal with roasts because I don’t like roasting.
[Commercial – harrys.com/arguments]
Beth Kingsley’s Homework on Foreign Election Interference
Thomas: So let’s go to our C Segment which is on election law! I think this is related to, you know, you’ve talked about it’s not necessarily about if any foreign entity is helping, it’s more like whether or not it’s on the books kind of thing? Is that what this is to do with?
Andrew: That’s exactly right, and so I actually – thanks to the work of our fantastic transcriptionist Heather Loveridge – if you haven’t checked out our transcripts do that – I was able to go back and get my exact comment which prompted our election law expert Beth Kingsley to weigh in!
Andrew: So I said “it is not a crime to hire foreign nationals to do work so long as they’re appropriately registered. Now would it be with Russia because they’re a hostile foreign power? It might be. Beth Kingsley, if you’re listening, and I know you are!”
Andrew: “Write in and let us know.”
Thomas: First time that’s ever worked!
Andrew: Yeah! [Laughs]
Thomas: [Laughs] Elizabeth Warren, if you’re listening! Goddammit. Attempt 4,000, failure number 4,000, we’ll keep trying!
Andrew: [Laughs] Yeah, well…
Thomas: But with Beth Kingsley it worked!
Andrew: Yeah it works with Beth Kingsley and obviously not with several others that we’ve tried.
Thomas: Not yet, not yet! You never know!
Andrew: [Laughs] Charlize Theron, if you’re listening and I know you are! Anyway, no we love Beth! So here’s what she said. “I was innocently driving home after a long week, catching up on some podcast listening when I heard Andrew give me a homework assignment-
Andrew: -to weigh in about whether a U.S. political campaign could hire a hostile foreign government to provide services so long as the transaction was disclosed.”
Thomas: Hold on, hold on, hold on! She said hostile foreign government?
Thomas: Because I thought – you and I, I remember I asked this specific question. Like it’s one thing to be a citizen of another country but it’s another thing if it’s actually part of the government of that country trying to influence the election, right?
Andrew: Yeah, and she gets into that distinction.
Thomas: Oh, okay.
Andrew: So, “You may be surprised to learn that [Laughing] no client has ever asked me this question so I have never had occasion to delve into whether the Federal Election Campaign Act distinguishes foreign governments from foreign individuals or companies.”
Andrew: “Or whether it further distinguishes hostile from allied foreign powers. It’s also perhaps not surprising that there is not, to my knowledge, any case law on this. Until recently, taking even disclosed assistance from a foreign government, especially a hostile one, would have been considered the kiss of death for a political campaign. Now of course we see that a large portion of the public is fine with that so long as that assistance goest to the candidate that they like.”
Yeah, I was gonna editorialize but I think that speaks for itself. I don’t wanna speak for you Thomas, if it were discovered that China had funded – President Hillary Clinton had received – we’d be up in arms. I think our record is more than clear that we would be, so you know, it’s distressing.
Beth continues, she says, “So far as I know, FECA (Federal Election Campaign Act) does not treat foreign governments differently from any other foreign source.”
Andrew: “The prohibition on contributions from foreigners applies to any person or entity who qualifies as a (quote) ‘foreign principle under FARA,’” That’s the Foreign Agents Registration Act, you may remember FARA because that shows up in several of the folks who pled guilty in connection with the Mueller investigation as well as in the trial of Paul Manafort, so part of Rick Gates and Paul Manafort was failure to register under FARA and that’s to what I was referring when I said “they’re appropriately registered.” That was a reference to FARA.
“As well as to any individual who is neither a U.S. citizen nor a lawful permanent resident, i.e. a green card holder. While there are some contexts in which foreign governments and other foreign entities are treated differently, for instance relying on registration under the lobbying disclosure act to cover any FARA registration obligation, that distinction is not included in the Federal Election Campaign Act.” Okay, so as I unpack all of that, at the topline level there is not a distinction between the government and individuals as long as they are a foreign principle.
Now Beth continues, “Of course, there may be other laws imposing sanctions on specific countries that would cause otherwise permissible commercial transactions to be illegal, but let’s assume the country in question isn’t subject to sanctions.” I thought that was a really good caveat that kind of echoes – obviously we have certain sanctions against Russia right now and I think what Beth is artfully saying there, certainly I will take the hit on that is not knowing whether those sanctions would cover election-related assistance, so that’s a potential that’s out there.
Beth continues, “While FECA does not distinguish between foreign governments and other foreign sources, things are a little more complicated than ‘if it’s disclosed and paid for it’s okay.’”
Andrew: “The FEC regulations prohibit any foreign national from participating in the decision making process of any person with regard to that person’s election-related activities.” I did not know this.
Andrew: “This applies even if they’re acting as a volunteer.”
Andrew: So, yeah, I wanted to talk about that a little bit because again I think it illustrates just how much the Trump administration has turned this on its head. Historically until now the idea was yes we want to prevent foreign corruption in the form of donations of any things of value, but we also want to prevent foreign corruption in the sense of having foreign decision makers involved in the campaign. That illustrates, or helps to illustrate, the underlying Congressional intent of, look, the one thing that ought to be sacrosanct in our country, free from interference, is our election. That’s what voting is supposed to be about.
She continues, “This is an area where there is case law. There is a series of advisory opinions and Matters Under Review” (that’s all capitals, those are administrative complaints handled by the FEC) “on this, many relating to how a U.S. subsidiary of a large foreign corporation can operate a political action committee without representatives of the foreign parent directing its giving. One interesting ruling said that the foreign-born fiancé of a candidate could volunteer for the campaign provided that she did not participate in decisions about campaign activities-
Andrew: -or manage the campaign committee.”
Andrew: Yeah. “There’s also a ruling that [Laughing] allowed Elton John-
Andrew: -to perform at a fundraiser for Hillary Clinton.”
Thomas: Specific Elton John clause.
Andrew: Apparently! To be honest, I am 100% for an Elton John exception to every law.
Andrew: “To perform at a fundraiser for Hillary Clinton relying on the volunteer exception because there was no evidence that he participated in the decision making process of the campaign committee,” and I can tell you, good job!
Thomas: Well [Sighs] You know, the sentiments portrayed in Candle in the Wind were really crucial to how she ran her- Yeah, no.
Andrew: We have debated back and forth, you’ve debated on SIO with Jamie the extent of the missteps in Hillary Clinton’s campaign. I think we can all be on board with saying not taking campaign advice from Elton John, good job Hillary Clinton!
Andrew: Anyway, Beth puts this all together: “So what this means is a U.S. candidate could hire Vladimir Putin to provide clerical services-
Andrew: -or [Laughing] it could hire” I love the idea of Vladimir Putin stuffing envelopes for Donald Trump! “Or it could hire a consulting firm to conduct specific research tasks, but Vladimir Vladimirovich would be prohibited from signing on as a campaign manager to Trump 2020 even if he was willing to volunteer his services. On the other hand, he could volunteer his services to perform at a fundraising concert!”
Thomas: [Laughs] He could play some hockey!
Andrew: Maybe shirtless riding a horse? That’d be great!
Thomas: Yeah, or that. That works too!
Andrew: Yeah! [Laughs] “I think this additional wrinkle suggests an important distinction between hiring a firm to conduct Oppo research and accepting research already gathered by the Internet Research Agency.” Really interesting there. “In the former case, the campaign is directing the services, in the latter the foreign entity is at the very least seeking to have influence over campaign decisions.”
I wanna unpack that sentence for a second because it’s really, really important.
Thomas: Yeah, the whole time I’ve been thinking what are the implications on the Steel Dossier kind of thing but I think that’s maybe where you were going already?
Andrew: Yeah that’s exactly right. So here’s what she is saying, and I think this is really counterintuitive. Again, you want to – Uncle Clarence if you’re listening you wanna dismiss us as crazy liberals, I can’t stop you. There is an intuitive argument, an Uncle Clarence level that says buying the Steele Dossier, hiring a foreign firm to gather Oppo research on your opponent seems worse than just accepting information that is being given to you, the information’s out there, who cares where the source is, I just wanna get it.
I will tell you, Uncle Clarence, I’m sympathetic to that.
Thomas: Yeah, me too.
Andrew: Yeah, that has a surface level plausibility to it. What Beth is saying is that under our election laws it’s actually the reverse, because when you hire a British firm to gather the Steele Dossier, the campaign is the one doing the directing. They’re the one that said hey look, we think X, we want you to go out and find that. At least the foreign principles there are not making a decision, which is the key determinant here under all of these various election decisions.
Whereas when you have a foreign power, let alone a hostile foreign power, gathering the information on their own initiative and then serving it up to you on a silver platter, which by the way, that is the most favorable possible reading of the July, 2016 Trump Tower meeting.
Thomas: Right, yeah.
Andrew: The most favorable meaning is oh, who knew? We thought we might be meeting with them for, you know, totally innocent purposes like building a giant tower in downtown Moscow that we were lying about. By the way, that is their best legal defense at this point. If this ever goes to trial, Donald Trump Jr. will testify no, I met with the Russians because on behalf of the Trump organization to build a building in Moscow that we were lying about to the American public as opposed to saying no, we met with them for campaign related reasons. To say we were meeting with them, we had no idea, and then they came in and they just happened to have this information that they served up to us and, you know, we had no idea that that was a bad thing to accept.
The inference there, and I think it’s a really, really good one, is yeah, look, this is the kind of thing that our election laws were meant to prohibit because you have no idea how or why they prepared this information and what their agenda is, and the whole point of trying to prevent foreign meddling in our election is to not let foreign powers, let alone hostile foreign powers, exercise decision making influence over a campaign.
When they give you a document that says “hey, you should emphasize Hillary Clinton’s emails” then you look at it, you go out you’re like alright. I guess we’re gonna mention Hillary Clinton’s email, that is a foreign entity, arguably, exercising decision making capacity, or at least attempting to influence the decision making of the campaign, so in election law it would be far worse to do the latter than the former, and I think I’m persuaded by that reasoning, but it requires a little work to get over the initial presumption.
Thomas: Most of the time I feel like these both sidesy things are just completely bad faith nonsense and it’s easy to follow the facts, this one – I mean, you gotta split a lot of hairs to get to the difference. I mean I agree with you and the bottom line is this is why you want to have competent people who talk to lawyers and just follow the law. That’s the bottom line. The law might be a little weird here but one side was like hey, we’ll do the thing where we follow the law even if it seems a little weird, and the other side had absolutely zero regard for that law. So that’s – even if the law’s a little confusing, that’s also part of this.
Andrew: Yup. So Beth ends by linking, and we have linked this document before, FEC Chair Ellen Weintraub’s draft document of the summary of election laws that were prohibited and blocked from going out because, I dunno, no reason was given. You can draw your own inference as to why the Republican commissioners refused to allow the Chair of the FEC to distribute rules summarizing the FEC’s – to distribute a document summarizing the FEC’s rules on [Laughing] foreign interference in our election, but this echoes what Beth said.
I’m gonna provide the link in the show notes but I wanna read a little bit of it beginning at page 4 where Chairman Weintraub says “The Commission has found that not all participation by foreign nationals in the election related activities of others will violate the Act,” then it goes through and then on page 5 says, but “By contrast, the Commission has consistently found a violation of the foreign national prohibition where foreign national officers or directors of a U.S. company participated in the company’s decisions to make contributions or in the management of its separate segregated fund.”
So in other words, as far as I can tell and obviously we defer to experts here, Beth Kingsley is an election law lawyer. My review of the underlying law and citations is consistent with Beth’s summary that it is not quite as straightforward as I described it and the keys are both disclosure registration which I emphasized, but also this notion of control, that if a foreign entity is or is perceived to be exercising control however attenuated over a U.S. campaign that that would be flatly prohibited even if you disclosed it.
I wanna go back, we kind of steel-manned the Uncle Clarence position, I wanna be super clear here, Trump’s acquisition of data from the Russians at the Trump Tower meeting in July of 2016 not only arguable violated the control provision, but definitely violated the disclosure provision.
Andrew: So it’s doubly bad. Even if you are not persuaded that the law ought to turn on the control provisions, and we could argue that, it still violated the disclosure provisions. They still hid it, they still knew they were getting stuff that they were not entitled to get from a hostile foreign power and they didn’t tell the FEC, they didn’t tell the American public. That’s definitely a super bad crime. I just didn’t want to get lost, as we were parsing out the disclosure versus control that there’s some elements that even disclosure doesn’t immunize, I wanna be 100% clear, Donald Trump did not disclose this-
Andrew: Donald Trump’s campaign did not disclose this so it’s prima facia wrong.
Thomas: Oh! So I look forward to them being punished.
Andrew: Yeah, me too!
Thomas: Facing consequences. Is that gonna happen? How’s that gonna happen?
Andrew: Well [Sighs] talk to me in 2021.
Andrew: I’m serious about that. It is clear Donald Trump will not be impeached over impeachable conduct in having his campaign coordinate and meet with Russian officials to receive illegal campaign contributions during the 2016 election. He ought to be, he will not be impeached over that because even if we get into elements of the Mueller report, the Mueller report reluctantly concludes that you couldn’t indict Donald Trump Jr. because he was too stupid to know, arguably too stupid to know that that was a crime.
Andrew: That’s not a real great defense, and like I said I firmly believe that once we have an independent Department of Justice again the – I don’t know what the statute of limitations is on election offenses so they may have expired, there may be an argument that they were told during the Trump presidency, I don’t know. It’s possible but unlikely that Donald Trump and/or Donald Trump Jr. will face criminal consequences for their criminal behavior. But he will not face impeachment consequences for that behavior, that is the sad reality we live in.
Thomas: [Sighs] On that happy note I think it’s time to thank some amazing patrons, what do you think?
Andrew: That’ll make me happy!
Thomas: Well I’m glad we cleared this up, though, because it was interesting. So it’s not as though disclosure solves everything.
Andrew: Yeah, and I was saying disclosure solves everything, Beth was saying no look, disclosure can’t solve control. None of that is relevant – relevant, right… in the context of Trump he [Laughing] neither disclosed nor had permissible activity.
Andrew: But look, if you think Donald Trump is not going to actively solicit foreign interference in 2020, well… god bless you, but I want us to know what the standards are going forward. As Beth points out, apparently we have a new normal where the Republican party is totally fine with you getting assistance from a hostile foreign power so long as it’s to there guy, so I want us to keep an eye out for if Trump openly discloses, yeah the Internet Research Agency gave a million dollars to my reelection campaign.
So thank you for doin’ your homework, Beth.
Thomas: Yeah, no kidding!
Andrew: And really informed us.
Thomas: Let’s see what other homework we can assign! Why stop there? [Laughs]
Andrew: Yeah, ultimately my goal is to outsource the entire show.
Thomas: [Laughs] Alright well let’s take our top patrons, our hall of famers, this is of course the new Top Patron Tuesday at patreon.com/law, hope you’re enjoying and enjoyed the Law’d Awful Movies that we already referenced and lots of other goodies coming at you. Oh, and the early bonus episode that you had! Hope you enjoyed all that and here is our thanks!
[Patron Shout Outs]
Andrew: Thank you all so much!
Thomas: Yeah, thanks top patrons! Wow, what a thank you segment, and now it’s time for T3BE, I don’t feel great about this one, let’s see how I did.
T3BE – Answer
Andrew: Yeah, okay, so this was a hearsay question, plaintiff sued her employer, alleging that poor working conditions had caused her to develop a stomach ulcer. At trial, plaintiff’s medical expert testified as to the cause of plaintiff’s ulcer and testified also that in his opinion was based in part on information in a letter that the plaintiff’s personal doctor had written to the plaintiff’s employer explaining why the plaintiff had missed work. Then here’s why this question was tricky, but I will tell you you were not distracted by this.
The question was, when offered to prove the cause of the plaintiff’s condition, is the letter from the plaintiff’s doctor admissible?
Andrew: So in other words, that makes this a hearsay question, it is not a question about is the plaintiff’s medical expert admissible, plaintiff’s medical expert very clearly admissible.
Andrew: Experts can rely on hearsay testimony. You immediately eliminated the two yes answers, I love it when you do that because-
Thomas: I mean I wasn’t terribly confident about it, but [Laughs]
Andrew: Well those were two good eliminations.
Andrew: It was in fact a no answer. You eliminated C, yes because it was relied upon by the plaintiff’s medical expert. That is not correct.
Thomas: Yeah, I think I pointed out that would mean you could get anything in basically.
Andrew: Yeah, exactly right!
Thomas: Okay, so that was right.
Andrew: That is Federal Rule of Evidence 703, allows an expert to rely on hearsay in reaching a conclusion, but the difference between allowing the expert to rely on it and having the underlying document be independently admitted-
Thomas: Mm-hmm. Yeah.
Andrew: -is what this was testing.
Thomas: Alright, nailed that!
Andrew: So C, bad answer, right. D, yes, under the business records exception? I thought that was maybe the most attractive yes distractor.
Thomas: It was!
Andrew: We’ve talked about it before, yeah, but a letter is not a business record because-
Thomas: Wow, I nailed that too!
Andrew: Yeah! The standard for business record is prepared in the ordinary course of regularly conducted activity.
Andrew: And this was a one off, so you know, not a business record-
Andrew: -so therefore would not be admissible under that hearsay rule. So then the question is, is it A, hearsay not within any exception or B, your answer, no because the plaintiff’s doctor is not shown to be unavailable. [Sighs] And I am sad to tell you-
Thomas: Awwww. [Price is Right Sad Song]
Andrew: Yeah, that was a Price is Right sad trombone. Yeah, here the simplest answer was correct.
Andrew: It was just hearsay not within any exception and the reason is that [Sighs] this is totally unfair, it makes this a really, really hard question. We have talked about this before that the hearsay rules are covered by multiple rules in the Federal Rules of Evidence beginning with Rule 801, and that some of those define things as not being hearsay. Under Rule 803 that covers all of the exceptions to the hearsay rule, that is things that are admissible even though they would otherwise meet the definition of hearsay, things like business records. Business records are hearsay, but they’re an exception because we think they’re reliable.
This is testing whether something is hearsay or not under 803 and not 804–
Andrew: [Laughs] As one of the unavailability-dependent exceptions to the hearsay rule. None of those apply, but if the hearsay – and this is really the key part of the analysis. If the hearsay qualified as an exception under 803, if it were a business record, than it wouldn’t matter whether the doctor was available or not.
Andrew: In other words the inquiry does not turn on the availability of the doctor, it turns on the quality of the document and here the document does not qualify for one of the exceptions because it’s just a one off. I thought you might go there, you sort of said from the outset it’s gonna be a no because if you want the testimony you should put the doctor on the stand, and that’s right. So sadly, answer is A.
Thomas: I’ll be honest, I still don’t really understand, but uh…
Thomas: Sure. Okay.
Andrew: Yeah, okay. Let me see if I can explain and I’m gonna pull up Federal Rule 804 here which says, first subsection A sets out the criteria for when a declarant is considered unavailable. That is – why would the declarant be unavailable? Like he died sometime in between, he wrote the letter then he died. Here are the exceptions for an unavailable declarant. Actually we talked about this in the latest Law’d Awful Movies. The example I just gave you, if you depose somebody and then that person dies you can introduce their deposition testimony in your case in chief at trial.
Andrew: You’re like look, we deposed him, now he’s dead, he’s unavailable, it’s definitely hearsay but we’re gonna play it for the jury. So here are the exceptions that can qualify if your declarant is unavailable – and you can be unavailable for reasons other than death, but death is the one that I think comes up the most. So here’s what you can do. You can introduce former testimony, that was testimony given as a witness at a trial hearing or lawful deposition whether in the current proceeding or a different one, statements made under the belief of imminent death, statements against interest, statements of personal or family history or statements offered against a party that wrongfully caused the declarants unavailability. I can expand any of those if you want to-
Thomas: Oh, sorry, so this is simple. I don’t know if I was just maybe misunderstanding what you were saying. So this wouldn’t even be admissible if the doctor had died you’re saying.
Thomas: Oh, okay!
Andrew: -this letter doesn’t fall under the 804 exception.
Thomas: The way you explained it really through me, sorry.
Andrew: I’m sorry, no no no.
Andrew: I was gonna say it’s me but I was reading from the answer key and I think the answer key is not as good at explaining the law as I am.
Thomas: Oh! Oh, okay yeah that makes sense.
Andrew: That’s why the NCBE doesn’t get to host OA.
Thomas: So if somebody’s dead you don’t get to just do anything.
Thomas: I guess there’s still a lot of limits to what you can get in there, and apparently a letter – okay! Got it. That was a very hard question.
Andrew: It was. It was not fair!
Thomas: I’m annoyed that I did so much good analysis to get there but that happens.
Andrew: Yeah. [Sighs]
Thomas: You’ve got four possible answers and ah, man, I feel really good about my yes eliminations but got me on that one!
Andrew: You should! You analyzed the question correctly.
Thomas: Alright well that’s how the – sometimes you get the bar and sometimes the bar gets you.
Andrew: Oh nice! That was an outstanding [Laughs]
Thomas: So hop in the time machine and give us our big winner this week.
Andrew: This week’s winner is Alexander Chadwick who writes “A- I’ve seen variable quality in medical records such that if I were a lawyer I’d want to speak to the doctor directly about what they meant when they wrote a letter to a patients employer #T3BE”
So that’s exactly right, that’s why this is – that’s the policy underlying why one off letter s are not admissible as a hearsay exception, there’s no indicia of reliability and you wanna talk to the doctor. If the doctor’s not there we think there’s sufficient lack of reliability that we’re not gonna introduce it in his absence, so.
Thomas: Yeah, when you put it that way that helps, ‘cuz it’s like you know, if you go to your doctor and you’re like hey I’ve gotta get off work can you just write me something? [Laughs]
Andrew: Yeah! Yeah and they could, that’s right.
Thomas: Yeah, yeah, okay. Well that helps, alright!
Andrew: Nice job, nice job Alexander.
Thomas: Well that person did better than I did on this one, good job you’re the big winner, fame and fortune, yadda yadda.
Andrew: Everyone follow him, that is @AWJChadwick on Twitter, congratulations Alexander.
Thomas: Yup, alright well fair enough. Okay that’s our episode, check out that Law’d Awful Movies on patreon if you haven’t already, it was a ton of fun. If not, or if you already did, we will see you on Friday.