Topics of Discussion:
- Yodel Mountain – Hatch Act Explanation
- Interview with Allison Gills
- Breakin’ Down the Law – First Weeks of Law School Survival Tips
- T3BE Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 417. I’m Thomas, that’s Andrew. How’re you doing, Andrew?
Andrew: I’m fantastic, Thomas! And I really am fantastic, I’m always excited when we get to have AG on the show, and I’m always excited to do the show with you. So, I’m great, how are you doing?
Thomas: Yeah, I’m good. Quick note on AG being on the show, not really sure if we can not have the explicit tag for this one? [Laughs]
Andrew: [Laughs] It’s always a challenge to edit her, I love her.
Thomas: Yeah. If you’re somebody who downloads every episode of Opening Arguments and decides to put it on for your, I dunno, six, seven-year-old kids? Maybe this one be careful with, I guess.
Andrew: [Laughs] We’ll give you a content warning. You could definitely listen to the A segment in which I explain what the Hatch Act is and how it applies, but unmasking AG you’ll probably wanna wait until the kids go to bed.
Thomas: Yeah, unmasked and uncensored, apparently.
Thomas: So yeah, that’s fun. This episode, explicit warning I suppose. That’ll fix a lot of [Laughing] editing problems for me.
Thomas: You’ll see. It’s like how do we creatively keep the content of this while also-
Thomas: And that’s tough. Also, we wanted to, you know, take a chance here. I don’t think we’ve mentioned it on prime time very much, that I’ve been doing the shows and getting them out – especially the one you’re hearing right now – I get this out for patrons a whole day early and that’s not just an “every once in a while” thing, this is now for however many months this has been, gosh, almost two full months now, the Tuesday show, which is technically Tuesday at 12:01 am Eastern time, has been coming out a full day ahead of that. So, you know, that would be Monday at 12:01 am Eastern Time. So that’s another patron perk. And as you saw last week, whenever there’s a technical glitch somehow the patrons still get the show, so that’s another reason. But I just wanted to throw that out there because I keep meaning to say that we’re doing that, and that’s every single Tuesday show, comes out a full day early for patrons. There are all kinds of other good reasons to be a patron as well, like for example submitting questions to the live Q&A that just happened! [Laughs]
Andrew: [Laughs] That is yesterday!
Thomas: I was gonna say tomorrow but I got my days mixed up. So that was a ton of fun, everybody.
Andrew: It sure was.
Thomas: So join the patreon.
Andrew: [Laughs] Thomas, be honest, did you engineer the technical difficulties just to make people wanna go be patrons?
Thomas: No, sometimes RSS feeds do a thing where they decide they cannot physically be updated. Even though I did it and fixed the episode, published, the RSS feed was like “I’m not moving.” [Laughs] I will not budge for a full ten hours, and nothing I did mattered and then just weirdly ten hours later it just updated. I dunno, sorry. It’s gremlins or something.
Andrew: RSS updating is like a tasty brand of cupcakes as far as I’m concerned, so, you know, I have zero input, knowledge, or understanding.
Andrew: It just goes into a magic box and comes out a series of tubes.
Andrew: That’s my “OK Boomer” moment of the show!
Yodel Mountain – Hatch Act Explanation
Thomas: Well with that said, again, you can enjoy that, patreon.com/law, all those perks. But now let’s get to our episode which is all about the worthless piece of paper-
Thomas: -that doesn’t do anything except possibly harass people out of their jobs occasionally when they’re a certain side of things. Anyway, the Hatch Act, Andrew. Break down the Hatch Act for us.
Andrew: Yeah. [Laughs] As we’re gonna find out, look, the Hatch Act is not this, you know, semicolon lost to history that is never enforced. It is a robust, vigorously enforced, frequently debated law and it applies to everybody except Donald Trump’s friends. We’re gonna explain why. These questions have come up because of last week’s Republican – can I convey sarcasm quotes on the air? But “convention,” that was interesting to watch. So, a number of people noted things that seemed to – and spoiler alert, do – violate the law. We’re gonna explain exactly what that law is, how it violates it, and why, in this case, if you’re on the Negatron side of “and it doesn’t matter,” specifically why it doesn’t matter because I think that it’s important. Look, our next President has an awful lot of items on his to-do list, but understanding what the Hatch Act does and doesn’t do helps us pave the way for understanding what kind of legislation we might want to pass.
So, what is the Hatch Act? The Hatch Act is an 81-year-old law, which makes it four years younger than Orin Hatch.
Andrew: [Laughs] Which we wondered about in our last episode, that is designed to prohibit public employees, principally employees of the executive branch, from engaging in political activity while they’re doing their job. This was passed in 1939, and you might be thinking “hmm, 1939, what’s going on?” Franklin Delano Roosevelt greatly expanding the size of the federal government, that’s the new deal. The concern from the political opposition was that as you are expanding the government and doing good things for people in the midst of a great depression, that incumbents would be able to use, to leverage, the power of that larger government into advantages for their reelection. If you think about that, we’ve kind of walked this tightrope ever since. Why does Donald Trump want his name as a signature on all of the stimulus checks?
Andrew: That’s obvious, right? Incumbents want to take credit for the things that they’ve done that they think are popular and you can anticipate and expect that. But what you don’t wanna take is somebody who is doing the job of the business of making government run and turn them into a mouthpiece for the administration. You don’t wanna do that for a lot of reasons. There are already a lot of advantages to being an incumbent, we didn’t need more. That was the principal motivation for the passage of the Hatch Act in 1939, it was a bulwark against a very incumbent President. But also, as the size of government expands you want to preserve the ability for people to do their jobs whether they agree with the administration or not. We’re gonna have AG on in the next segment and that’s a perfect illustration. She was a high-level government employee, continued to do her job, which is securing funding for the Veterans Administration’s Tricare health program. You want her to do her job helping veterans whether Donald Trump is President or not. So those are the purposes behind the Hatch Act.
Here’s how those purposes got put into practice, and this is 5 U.S.C. § 7324. That describes what you can’t do. As you listen, it’s a pretty specific list. It says “an employee may not engage in political activity – (1) while the employee is on duty; (2) in any room or building occupied n the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof.” Side note, you can really see the 1939 in this law? [Laughs] How this works in the age of emails and Zoom conferences is not clear. “(3) while wearing a uniform or official insignia identifying the office or position of the employee.” Again, another little sidebar there, you may have seen and noticed that members of the military do not wear their military dress while speaking in a political capacity. That is not under the Hatch Act, that is actually under a separate statute, 10 U.S.C. § 973(b). I didn’t know that until I started researching this episode.
Thomas: Oh. But is that another thing the Trump cronies have ignored?
Andrew: Uh, yes.
Andrew: 973(b) says that military officers cannot run for political office while holding their office, § 593 says that they cannot interfere with elections and that is interpreted broadly. That’s why generally speaking the Chairman of the Joint Chiefs of Staff does not come out in dress uniform when they are speaking in a political capacity. So, separate from, but adjacent to, the Hatch Act. You don’t speak in your official capacity, identifying the office or the position of the employee, when you’re engaging in political activity. Or “(4) using any vehicle owned or leased by the Government of the United States or any agency or instrumentality thereof.”
So, I’m gonna talk a little bit about some of the exceptions, but that’s the law. You can’t do those four things and you probably noticed a big question mark. That is the law doesn’t define what “political activity” is.
Andrew: That’s because it’s 1939! Everyone was just like “eh?” As it turns out, the Office of Personnel Management has promulgated regulations that define political activity as (quote) “an activity directed towards the success or failure of a political party, candidate for partisan political office, or partisan political group.” That means that advocacy for a particular political issue, and the example that is given in the regulations themselves, for example, an anti-war platform, that is not directed towards the success or failure of a political party, candidate, or group, is not considered political activity.
Thomas: Hmm. That’s an interesting distinction, though, it feels like any issue – abortion, or something.
Thomas: That’s pretty clearly-
Andrew: Where it clearly aligns with the political parties? Yeah.
Andrew: That ambiguity is one of sort of the many legal questions that surround the Hatch Act. I would also add, while we’re doing it – [Laughing] Maybe it shouldn’t be this way? But for most of the country’s history an activity that would have fallen within that category that would be considered nonpartisan would be efforts to convince people to vote. Because, again, up until about 1990 the Republican party was actually interested in having people vote. Now that is a political issue, but historically that was something where, you know, you would say yeah, it’s perfectly reasonable to have the chairman of the FEC come out and say “hey, it’s every American’s duty to get out and vote if you can.” You used to run, even Republican administrations would run PSAs like that, that were nonpolitical, didn’t run afoul of the Hatch Act even though voting is a political activity in the broader sense of the word, doesn’t count as political activity for purposes of the Hatch Act.
In addition to the specific prohibitions under § 7324, there is – the immediately preceding section, § 7323, lists the kinds of things that you can do if you’re a federal employee. It says you have the right to vote as you choose and to express your opinion on political subjects and candidates. You might be thinking, well that seems like that’s directly- [Laughs] How can you express your opinion on political subjects and candidates and not engage in political activity while you’re on duty?
Andrew: So, in the litigation you have things like [Laughs] what is called the watercooler rule.
Andrew: It means exactly what – the next generation, our Zennials coming up are gonna be like “what the hell’s a watercooler? Everybody works remotely.”
Andrew: [Laughs] You and I still remember offices and watercoolers.
Andrew: But that was the idea. Yeah, look, you’re not gonna get kicked out for violating the Hatch Act that you go over to the watercooler and you’re like “oh man, could you believe the RNC last night?”
Thomas: Yeah, I wonder if some of these cronies should have a watercooler with them onstage at the RNC.
Thomas: To be like “look, this is just watercooler talk! It’s under that rule!”
Andrew: [Laughing] Could be! Look, you know, the hypocrisy is palpable. If you have an Uncle Frank who is overly defensive on this matter just mention the names Peter Strook and Lisa Page to them. Discovering a handful of text messages between FBI agents that they did not support Donald Trump was enough to create an entire Q Anon level conspiracy of the deep state to bring them down, but violating the Hatch Act on national television, no big deal. Anyway, the reason for all of that is kind of what you’d think, which is as you are restricting, arguably, the freedom of speech to engage in political expression the framers of the Hatch Act in 1939 wanted to make sure that the act was constitutional.
Andrew: That it didn’t violate the first amendment rights of people just because they work for the government. I will tell you, again, cutting to the punchline, if you have somebody in your timeline who is saying that the Hatch Act is unconstitutional because it violates freedom of speech, that’s not true. We have a case; it is 47 years old! United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 from 1973, that says the Hatch Act is not unconstitutional, does not violate the first amendment, is not overly vague, does not chill and suppress permissible free speech. In other words, it’s perfectly fine to restrict – to say hey, if you’re gonna work for the executive branch you should maintain a separation between your political activities and endorsing those activities as part of your job.
I mentioned that nobody that’s close to Trump has ever paid any penalties under the Hatch Act. That’s because of how the Hatch Act is enforced. That comes, we just said § 7324 is where the prohibitions come from. § 7326, this is 5 U.S.C. § 7326, are the penalties for violating the Hatch Act. They are the default position is removal from government office. Being fired.
Thomas: Which I would totally take that-
Thomas: -as a consequence. You’re gonna get to why there are just no consequences eventually?
Thomas: Okay, gotcha.
Andrew: Here’s what happens. Back in 1939 we thought it made perfect sense to have the Office of Special Counsel, another executive branch agency, review and investigate potential Hatch Act violations and then present complaints regarding those violations to the Merit Systems Protection Board. Then the Merit Systems Protection Board would be an outside quasi-judicial agency, it would adjudicate the case.
Andrew: If you are accused of violating the Hatch Act you appear before the MSPB, you have a right to have a lawyer present, it’s treated like a trial. They determine whether you violated it or not and if so, what your penalties are, again with the default penalty of removal, but that can go up. You can be removed and debarred, that is prohibited from serving in future federal employment again. You can be debarred for up to five years. Or you could be reprimanded, you could be reduced in grade, you could get a civil penalty not to exceed $1,000 dollars or any combination of those things. But again, the default is you violate the Hatch Act and you’re fired. [Sighs] However… With high level executive employees under Donald Trump, the OSC has not been referring these cases to the MSPB, but has instead been referring them to … the Office of the President of the United States.
Thomas: That seems like a conflict, perhaps.
Andrew: Kinda does, doesn’t it? Yeah. By the way, because it’s an administrative hearing, the MSPB, you then appear before them, an administrative law judge rules, and then you can appeal to the U.S. Court of Appeals for the Federal Circuit. You get, eventually, the right to be heard in court as a result of this process. Now, again, that hearing, like any administrative hearing, is going to be highly deferential to the administrative findings below. So, you know, it’s a big deal what the MSPB does, it’s a big deal how the OSC frames the violation. And the OSC has been doing its job. Kellyanne Conway, for example, has violated the Hatch Act more than 60 times according to our friends over at CREW. Unfortunately [Laughs] the OSC has been instructed to present those complaints not to the Merit Systems Protection Board, but to the White House which then has done nothing. So CREW sued the Office of Special Counsel and in a decision that came out a little over three weeks ago, I have already uploaded it – I had to download it off of Lexis.
Andrew: And uploaded it to the Opening Arguments website, so I did, you can read it. The United States Court for the District of Columbia, this is Judge Boasberg, concedes that Kellyanne Conway has violated, has (quote) “repeatedly violated the Hatch Act,” but held that CREW lacked standing to be able to claim an injury redressable by law under the Hatch Act, that they did not have particularized interests separate from the public at large in ensuring that Kellyanne Conway does her job and so [Laughs] I will tell you, it’s weird to see this written in a U.S. District Court opinion, but here’s the conclusion. So, after kicking out the lawsuit on standing grounds the U.S. District Court says “While the Court understands Plaintiff’s frustration that Conway is continuing to violate the Hatch Act with seeming impunity, it must hew to its jurisdictional borders. Those do not permit its intrusion here.”
Thomas: Sorry, what? How. How?
Andrew: Because the Hatch Act was not meant to provide individual plaintiffs with a private right of action to enforce the Hatch Act.
Andrew: So I read the conclusion, but I can say the judge frontloaded his conclusion. Before the discussion says “as the court agrees with the former argument,” that is that CREW lacked standing, “it need not reach the latter,” that is that it fails to state a claim. (Quote) “Such a ruling means that CREW must seek other avenues to hold Conway accountable for her misdeeds” (End of quote). So again, it is not a matter of opinion by a liberal lawyer on a liberal podcast that Kellyanne Conway has repeatedly violated the Hatch Act. It is the opinion of the Office of Special Counsel, delivered to the desk of President Donald Trump, and the opinion of a sitting judge of the United States District Court for the District of Columbia.
Kellyanne Conway has repeatedly, more than 60 occasions, used her office inappropriately to directly endorse and advance the interests of the President of the United States, but the President does not care. Not only does the President not care about Kellyanne Conway, he did not care that Melania Trump delivered her remarks from the White House Rose Garden. Again, it’s not clear. I should add, the Hatch Act, by definition, does not apply to the President or Vice President.
Andrew: And shouldn’t. We should think the President is free to campaign for his own reelection.
Thomas: Yeah, ‘cuz he can’t – you’re not taking off your President hat.
Thomas: Which I can’t believe there’s actually a President hat!
Thomas: Sorry, that was like a joke. Like oh yeah, your President hat, and then I realized there’s actually a [Clownhorn] President hat. I’m glad this is an explicit show since – cat’s out of the bag on that one. He has a hat that he wears.
Thomas: Anyway, sorry.
Andrew: But the harm – so in other words the President delivering his speech from the Oval Office while – the reason no other sitting President has ever done that is not that the President can’t do it, it is in order to deliver that speech you now have all of the executive branch employees-
Andrew: -in the Oval Office who are directly contributing to the President’s reelection.
Andrew: The cameramen that are sitting, they are engaging in working hours in an activity that is 100% partisan political activity, to wit, the reelection of President Donald Trump and they’re forced to do it.
Thomas: So this is interesting, though. So theoretically I guess you’re saying this would never be done before because you have a convention that’s at a location-
Thomas: And you know, while the President and Vice President might be immune from this or whatever, which, you know, makes sense, the other people at the convention, you wouldn’t wanna have the convention at the White House, but I guess in the times of COVID you could theoretically make this work in an ethical way? Or even having – I guess when you say the cameramen, I mean it’s not as though they’re having White House employees be cameramen, right? I’m sure they can hire outside people? There would be a way, theoretically, to make this work.
Andrew: There would be a way that this administration has not used.
Thomas: Of course. Yeah, yeah.
Andrew: And we should add, going beyond the President and Vice President, Mike Pompeo was on an official diplomatic trip to the Middle East. He appeared in his capacity as Secretary of State from Israel to address the convention.
Thomas: Blatantly illegal, right?
Andrew: It is 100% a violation of the Hatch Act.
Thomas: Party of law and order, everybody.
Andrew: No doubt. No doubt whatsoever. There is no argument whatsoever, and the only arguments that Trump supporters are gonna make is “eh, come on, who the hell cares?”
Andrew: Well, you know, we’re about to have on an executive branch employee. If you’re not Donald Trump and you’re not Donald Trump’s inner circle of cronies you absolutely do care about this law.
Thomas: Ooh! Good setup for bringing on AG!
Thomas: Alright! Let’s get on over to our guest for today. AG, here we go!
Interview with Allison Gills
AG: Alright, well I’m ready whenever you are, fellas!
Thomas: And we are joined by AG, of course from Mueller She Wrote and the Daily Beans, returning back to the show for the umpteenth time. How’s it going, AG?
AG: It’s going well this week. I’m on a little bit of a vacation.
AG: So that means I only work about 8 hours a day? So it’s going good!
Thomas: Yeah, I imagine vacations are the same for Andrew.
Thomas: I think that means he only reads like 40 court documents a day.
Andrew: I have done Daily Beans while on my vacation, so I appreciate the return courtesy, this is great.
AG: Yeah, of course! No problem.
Andrew: As you know we are breaking down a deep dive on the Hatch Act because, you know, we just had this North Korean Republican National Convention-
Andrew: Where every other speaker was named Trump. Melania Trump gave her speech from the Rose Garden, Donald Trump gave it from the Oval Office. I can do the boring “this is what the law says,” but you have firsthand experience with the Hatch Act under Donald Trump, so I thought I’d ask you about that story.
AG: Oh, yeah. Me and the Hatch Act, we go way back!
AG: So as you know in December of 2017, the week that the Flynn and Manafort – excuse me, was it Manafort and Gates indictments dropped we started our first episode of Mueller She Wrote. I was working full time for the federal government as the health systems specialist for the Department of Veterans Affairs in the West region as the liaison embedded in the Department of Defense providing oversight for the Tricare contract, because the VA is a network provider. My job was to go out and collect the money from the DOD owed to the VA and I recouped anywhere from 80 to 150 million a year for veterans.
Andrew: Nice work.
AG: Thank you! So, I started a podcast where I was pretty much basically saying that Trump should be in prison, and since he was running for office, as we know he filed the paperwork to run for President in 2020, he filed it on inauguration day, 2016, 2017.
Thomas: Ew, yeah.
AG: So he’s always been running for office since he took the oath. Of course, after criticizing Obama for filing his paperwork a few months early. Now, if I had come out and said “my name is Allison Gill, I work for Department of Veterans Affairs, I’m really high up, I’ve got a really good inside view here, and Trump should be in prison,” that would be a violation of the Hatch Act if anyone’s playing along.
AG: You can’t campaign for or against a political candidate, you can’t fundraise for a political candidate while working for the executive branch of the government, and me being of ethical sound mind did not want to violate the Hatch Act. So, I hired some lawyers, some experts at the Hatch Act and I said what do I need to do to make sure that I am not running afoul of the Hatch Act or any other ethical concerns, you know, policy or anything like that. They gave me a long list of things not to do and what to do, and followed those to the T. That’s why I go by “AG,” as a matter of fact. I’m out now, my name’s Allison Gill, everyone follow me on Twitter, @allisongill.
AG: Because I’ve been removed from my position, but not for violating the Hatch Act though they tried their damndest. But in any case, I did obsessive research on the Hatch Act and didn’t want to make any money off of my government position for me personally. There’s all sorts of different ethical concerns that are kind of subsumed into the Hatch Act. Being a career professional with the federal government, we’re generally an ethical group of people usually.
Andrew: [Laughs] So we’ve talked a little bit about the specific subsections of the law. You identify yourself as a federal government employee instead of anonymously as AG, but you make it clear that the podcast is produced in your spare time [Laughs] Sorry, I almost said that sentence without laughing. But not on government time.
Andrew: Not with the assistance or using any federal funds.
Thomas: Yeah that would’ve been awkward if you’re like in your office during recording and people are like asking you for stuff! [Laughs]
Thomas: Hey, here’s this $40 million dollar check you asked for. Oh, hey, what’s that microphone?
AG: Are you talking to Andrew McCabe? What’s happening? [Laughs]
Andrew: [Laughs] But yeah, you kinda went down and ticked off all the boxes and says okay, I’m not on duty, I’m not on government premises, I’m not using government equipment, I’m not using or accepting government money in any way. If, in the language of the statute, (quote) “all the costs associated with that political activity are not paid for by money derived from the treasury of the United States,” what was the concern that that still might not be enough?
AG: In my mind?
AG: The concern was what I was talking about.
AG: I figured we would just be in our kitchen doing 80 downloads a week, and when we – right around the time we were nominated for the Webby which we ended up winning, the people’s choice-
Andrew: Ooh, that was very smooth, by the way. I like that. Keep going.
AG: Thank you. And we were getting a quarter of a million downloads per episode, we were getting press coverage in the Washington Post and the New York Times, etc. etc., I was like “uh oh, people are gonna know.” But, you know, I made sure, like you said, that I was not violating the Hatch Act in any way, and even taking it steps further. Like I could actually have used my real name.
Andrew: That was kind of the question I was hinting out, but please, I didn’t mean to interrupt. Go ahead.
AG: No, no that’s okay. I could’ve used my real name, but you know, as long as you don’t use your title, or, like you said, any money from the treasury to fund your own personal little anti-Trump thing you should be good. Though I will say, right around that time when we were at the peak of Mueller She Wrote we got a memo, at Hatch Act executive order update from Donald Trump and he said “this extends now to social media,” and it’s not just that you can’t campaign for or against a political candidate for office, elected office, you can’t say anything bad about Trump specifically.
AG: So I was like “hmm.” I swear to god I was like “is this ‘cuz of me?”
AG: I really honestly felt like. So then we modified our Twitter activity, I had somebody else tweet on behalf if there were any tweets that were gonna go out, and we never tweeted any fundraising because you’re not allowed to do that at all.
AG: Sent out, I even have the email I sent out to the staff. Like here’s what you can and can’t do, here’s when you can do it and when you can’t do it. So we had to make little modifications when this Trump memo came out, and I was like okay. You know, Donald Trump, you’re already covered. You don’t have to mention yourself by name.
Andrew: Who sent the memo?
AG: It was sent to us by Office of General Counsel.
Andrew: Hmm, okay, yeah.
AG: The same people who ended up investigating – spending your tax dollars investigating my podcast.
Thomas: Well but in a weird way that’s sort of like pledging on Patreon, right? [Laughs]
Thomas: I’m gonna spend my tax dollars! It’s like paying, you know, my tax dollars for someone to listen so more people listen to your show! [Laughs]
AG: Yeah, exactly! So I’m not spending any government money making my show, but the government’s spending money looking into it.
AG: So I get a phone call, because like I said – another thing too I need to tell you is a lot of times I would be, we were doing a tour and there would be days when it would be during work hours I would either be travelling or whatever?
AG: And I always took leave, like my leave that I earned from working there for over a decade. So I was either on leave or it was after hours. Those were few and far between, but I was on leave and I actually took – okay. A little timeline here. April of 2019 my two new bosses, because my old bosses had just retired, quote unquote “retired,” flew out across the country to San Diego from D.C., spending your taxpayer money, flew across the country, to tell me that my job was moving across the country.
AG: Now this is an old trick. You might’ve heard Mick Mulvaney talk about it on August 6th, to the Washington Post, to August 6, 2019, dropped a story where he was recorded talking to a bunch of rich donors saying “it’s really hard to fire federal government employees so these liberals we don’t like, what we do is we move their job across the country, and see they quit, get it?” [Laughs] “Isn’t that cool? High five!” So they flew out, tell me my job as the West-region Tricare liaison was moving to the East region. Now there’s two of me in the country, there’s a West region liaison and an East region liaison. The East region liaison is in Falls Church, D.C.
AG: West region, and that’s the Tricare regional office for the East region for the Department of Defense. West region liaison is at the San Diego Tricare regional office for the West region.
Thomas: Somewhere in the West, you’re saying.
AG: Yes. The reader will recall Washington D.C. is not in the West.
AG: So there’s two of us and we’re at our respective offices. They say it’s imperative, you have to be face to face in Washington D.C. to do this job. And I was like really? Because you moved me and my job to San Diego because it was imperative that I be here, but okay.
AG: I can’t move, and they knew this because a year earlier I was offered the position of the guy who was firing me. I was offered that position and I turned it down because I couldn’t move to D.C., so they knew I couldn’t go. So part of restructuring, modernization, whatever catch phrase they were using, we’re moving your West region job to the East region. Okay, cool, who’s gonna watch the West region? Uh, you are, from the East. Okay, whatever.
AG: So, you know, I have PTSD and this is gonna be the third time the government has betrayed me? So I take twelve weeks off of my earned leave.
AG: I come back from those twelve weeks on August 6th, which is the same day that Washington Post article drops about Mick Mulvaney and the jobs moving across the country thing, and I get a call, I have a call scheduled with my boss, what I think it’s gonna be “welcome back, here’s what you missed,” and catch me up. But instead it was “this is a fact-finding investigation; you are required to answer all my questions.” I said, “well this sounds like I’m gonna need a lawyer present on this call,” and they were like “you aren’t allowed to have a lawyer present, you must answer our questions.”
Andrew: Really?! I’m sorry, keep going now but that’s … yeah. [Laughs]
Andrew: Yeah… wow.
AG: Yeah, so now my heart is pounding. I’m caught, I’ve somehow slipped up. It’s really easy to violate the Hatch Act, by the way.
AG: It’s real easy to break any government rule, there’s 8,000 pages of rules. You could’ve worn pink on Tuesdays instead of Wednesdays and then you can’t sit with us. I’m like, “alright then, I’ll answer your questions.” They’re like “alright, go to muellershewrote.com,” and I’m like “Ugggh.” The color drains out of my skin.
AG: And they go “is that you?” And I’m like “are you sure I can’t have a lawyer,” they’re like “nope, you can’t have a lawyer.” I was like, “yup, that’s me.” They go, “alright, go to this,” they give me a long URL to type into my browser, and it’s a Twitter post.
AG: And it’s one of our fans sending in, it was a video, a little one-minute video, of me onstage in Minneapolis at the Parkway Theater, sold out house. This clip is of me splitting the audience into three parts and leading everyone in a three-part harmony of “Manafort is [Singing] fucked, fucked, fucked” and by the end of [Singing] “fuuucked!” Like we’re all singing this big huge chord, everyone’s on their feet, everyone’s clapping and singing, and then I cut it off and there’s a standing ovation, the crowd goes wild and I am-
Andrew: [Sighs] I miss live shows.
AG: I’m simultaneously terrified because, you know, everyone who’s worked for the federal government is like “oh shit, I hope I didn’t break any rules.” But also, that they took me to me leading a three-part harmony of the word “fucked” about Paul Manafort is just too goddamn hilarious.
AG: And this is part of the investigation into my podcast.
Thomas: Yeah. You’re like, I’m sorry, is my part time job as a choral director incompatible with my job here?
Andrew: [Laughs] I’m just glad it wasn’t that they weren’t holding against you some of the things I said during our Philadelphia live show which, you know, would’ve been equally as incriminating.
AG: [Laughs] Well they had a whole list of tweets for me to look.
AG: Instead of just saying, you know, we wanna know what’s going on they had to take me through this shadow play of pretend investigations.
AG: Then after, I filed all sorts of complaints, an EO complaint because I asked for – I said “look, I already told you three months ago to fire me because I’m not moving to D.C.,” and they were like “well you still work for us, beep berp,” and I’m like alright, then I would like to request 100% telework, I can’t be in the office, you [Clownhorn] freak me out. You people freak me out. They’re like “no, you have to be in the office face to face,” and I’m like “in San Diego I have to be in the office face to face? Then why is my job moving to Washington D.C.?
AG: So they denied my accommodation request for telework and so I filed another complaint for discrimination, retaliation, then they said “okay, okay, you can have 100% telework,” and I was like nah, bro, uh-uh. I’m going back on leave without pay. Because I’m out of earned leave at this point, so I’m like “I’m not working, you’re not paying me. You fire me when you’re [Clownhorn] ready.” I’m not, no, I’m not doing your, no. I’m not doing this.
Thomas: This show is gonna be an editing challenge to get back to the clean iTunes podcast tag, but I’ll do my best.
Andrew: [Laughs] Can we get you to sing [Singing] “Clownhorn, Clownhorn, Clownhorn!”
Thomas: Yeah, that’s what I’m really sad about. I dunno how to fixt that, that’s the one that’s-
Andrew: I think this is just gonna have to be a not clean episode.
Thomas: Alright, that’s fine.
AG: Or you can just beep the F at the beginning.
Andrew: [Singing] “-ucked, -ucked, -ucked!”
AG: Yeah, uh-huh. That works.
Andrew: Alright, there we go. Alright. Now I know what this episode is gonna be called. [Laughs]
AG: So they kept putting it off. I mean this was August and I’m trying to get – so I file all these EEO complaints and I don’t know what they’re doing, but I end up getting having an EEO investigation done, I get the EEO investigation report. It turns out Office of General Counsel was directing my supervisor to investigate me, and I don’t know who tasked the Office of General Counsel to investigate me so I filed a FOIA request and I got the emails and they’re all redacted.
AG: From: redacted, to: Office of General Counsel. Office of General Counsel to: redacted. So they didn’t want me to know anything above Office of General Counsel, and I still don’t know to this day, but what I was told was that, you know, the way they found out about what I was doing was through my coworker, my cohort in the East, the East region liaison just “brought it up” to our supervisor. I’m like yeah, that’s not what happened. Uhhh, no. FOIA request, FOIA request, and of course I hired a credible law firm to represent me in these, the EEO and retaliation suits. Anyway, it took ‘em from August 2019 to March 25th to finally remove me, and guess what? They did not fire me for not accepting a position in Washington D.C., they fired me for being medically unfit.
Andrew: While, you know, we would not want to violate your rights to confidentiality involving your medical condition, what on earth were they saying?
AG: They were saying that because of my PTS, because I couldn’t work face to face in the office because I had asked for reasonable accommodation before they fired me – while I sat around and waited to be fired – they said I was medically unfit.
Andrew: Doesn’t that seem like they’re confessing to a violation of the law? I mean, you know, I’m no lawyer or anything.
Andrew: But, uh…
AG: Yes. Yes, it does! [Laughs]
Andrew: Let me kinda bring it around full circle. When our friends over at CREW, the Citizens for Responsibility and Ethics in Washington who have worked harder the past four years than in their entire lives, have documented 60+ separate occasions in which Kellyanne Conway has violated the Hatch Act as White House spokesperson, and when asked about that Kellyanne Conway replied “oh, phht, the Hatch Act. Let me know when the prison sentence starts.”
Andrew: The attitude – I mean, in addition to-
Thomas: Who’s the party of law and order, everybody.
Andrew: Yeah. But there are – I mean, trying to steelman as best we can a bunch of monsters, there certainly are longstanding statutes that have been on the books that are rarely if ever enforced. But it doesn’t sound like that’s the view of the Hatch Act from within the executive branch from boots on the ground like you. It, I mean, is that – were Kellyanne Conway’s comments in line with how your average executive branch employee views this? Or was that the privilege of somebody knowing that, you know, she was never gonna be sanctioned by anyone for anything.
AG: Uh, the latter.
AG: Because we all, you know, us frontline career employees, career professionals, we take the Hatch Act extremely seriously because if you violate it you can be removed from your job. I mean there’s no real other teeth to it-
AG: But that’s a pretty big consequence, and there have been a lot of people fired for violating the Hatch Act, and we have to take Hatch Act mandatory training every year. It’s a big damn deal if you work, as is most secrecy and all that other stuff, you know. It’s a very clandestine groups of folks, even if you’re not working in OBSEC or you don’t have clearances, it’s still very – you are loyal to your agency. Yeah, no, they are totally violating, shitting all over it, and in fact that’s part of my lawsuit. Although they didn’t technically fire me for violating the Hatch Act, they investigated it, but they don’t imply it equally and that’s a big no no to the EEO, the Equal Employment Office.
AG: Anybody who’s been a manager in government knows that. You’re like “I need to fire that person.” Well, has anyone else done what that person did and you didn’t punish them? Yeah. Well then you can’t. So it’s a very serious matter and, you know, Mark Meadows coming out and saying “nobody outside of the beltway cares about the Hatch Act.” Uh, but even if he’s wrong, he’s inferring that people who work for the government [clownhorn] care about it!
AG: Excuse me, really care about it.
AG: It’s a big deal, and we’re all very – we don’t work for the government to get the money! We’re not in it for the cash, we’re in it because we believe in what we do and so generally people who work in service of others and believe in what they do and believe in their work and make crap money for it are ethical people!
Andrew: I couldn’t add anything to that. I just wanna thank you for getting on and sharing your story and sharing your identity. Thomas, I don’t know if you had any other questions?
Thomas: No, I mean I think its case closed.
Thomas: I mean the Hatch Act somehow doesn’t matter when the Secretary of State, you know, makes a political speech for the President, but when a podcaster criticizes Trump [Laughs] then all of a sudden it’s a big deal. Yeah, I mean it’s pretty straightforward.
AG: Yeah, and you also have to remember I was having Andy McCabe on the show, I was propping up the intelligence community when Trump wanted to tear it down.
AG: I think that that is probably why I was considered an enemy or on the enemies list.
AG: I will give you a piece of good news. I battled for my severance and I got that, but I am still working on a wrongful termination hearing. Not lawsuit yet, we’re still in the hearing phase where hopefully somebody at the VA will make a decision. If they don’t decide my way then … Andrew, you and I should have a chat.
Andrew: [Laughs] We will.
Thomas: [Laughs] Are you sure you don’t want me to handle the lawsuit? Okay, yeah, no that’s fine, go ahead Andrew.
Thomas: I’m okay at the bar! [Laughs]
Andrew: Thomas has a really good chance of getting the top two answers!
Thomas: I’ll get like 55% of your lawsuit filed correctly!
AG: But I tell you what, I’m very, very happy and excited to be freed up now to campaign for Joe and Kamala.
AG: And I’ve actually been recruited and added to the DNC war room and I’ve been working hard on their behalf. Again, if anyone – and I’m allowed to say this now and it’s like free at last! If you can donate anything to Joe and Kamala, any amount helps, please do it.
Andrew: Hear hear!
Thomas: Well now I can say, Allison Gill! [Laughs]
Thomas: Thanks so much for joining us in your fully named capacity here. Again, people should check out Mueller She Wrote and the Daily Beans. Anything else we wanna throw out there?
AG: Yeah, follow me on my personal account now, @allisongill.
Thomas: Ooh, exciting.
AG: A-L-L-I-S-O-N G-I-L-L and thanks for listening!
Thomas: [Laughs] Thanks as always for coming on the show.
AG: You guys are awesome; I appreciate everything you do. Keep it up.
Andrew: Yeah, you too.
Breakin’ Down the Law – First Weeks of Law School Survival Tips
Thomas: Alright. Thanks again to – now we can say Allison Gill! No more initials, there. Thanks again.
Andrew: She’ll always be AG to me.
Thomas: Yeah, that’s true. Eh, AG. [Laughs] Either way, thanks again and Andrew, I know you wanted to give a little bit of a spiel here on something?
Andrew: Yeah. You and I are working on a bonus episode because so many people have written to us and said they went to law school [Laughs] from listening to Opening Arguments, which, you know, don’t remember that when you’re paying back your student loans in a couple of years, it was not our fault.
Thomas: Hey, we tried our best!
Thomas: I know you directed people on what to do about that.
Andrew: So people have gone to law school, have said that the show has inspired them. Please do keep sharing those stories with us. Something that’s going around that was in the Opening Arguments community on Facebook, schools are starting up and whether they’re starting up, you know, socially distant, semi in person or all online, a lot of people are starting law school for the first time and wondered what our thoughts were about it, were a little bit scared, a little bit overwhelmed, so we are gonna do an episode on what to do if you’re in law school.
Thomas: What to expect when you’re expecting….
Andrew: What to expect when you’re expecting in law school, exactly!
Thomas: -in law school, yeah.
Andrew: Obviously we’re way out of time here, and it was foolhardy of me to think we could even talk about this. The one piece of advice that I want you to remember if you’re a law student right now, particularly if you’re first year and you’re overwhelmed in the first week, first couple of days. I want you to think about law school as if it is a foreign language immersion course that runs for three years, because in a great many ways it is. You are dropped into this strange new world in which the vocabulary is insane. I don’t just mean the Latin that I can never remember and you’re not gonna have to remember either, but I mean like just the standard – [Laughs] what is the difference between – all of our vocabulary here. What is injunctive relief versus a temporary restraining order? What does it mean to prosecute versus to persecute? All sorts of things that you’re 90% sure you knew as a real person are all going to seem crazy now that you’re in law school. It’s worse in the first couple of weeks and the reason why – I want you to know, it gets better – the reason is that most law school classes use a casebook method, and the casebooks for some utterly insane reason are arranged chronologically.
Andrew: Now sometimes I get that. It’s important, when we emphasize on this show, yeah yeah yeah, this principle has been around since 13th Century Saxony, okay, I get that. But what it means is if you’re fresh outta college, you’re a first-year law student, you don’t know any law, that’s why you’re there, and when the first thing they give you to read is some English case from 1685-
Andrew: You’re like “alright, stop the ride, I wanna get off.”
Thomas: Stop the carriage!
Andrew: Yeah, I get it. And not withstanding my all time personal favorite human being Elizabeth Warren and her trap of “what’s a sumpsit?”
Thomas: Sumpsit, yeah, I know I’ll never fall for that one after hearing that story 70 times on this show, but it’s a good story.
Andrew: But let me say, it’s a good story but it’s the wrong lesson. When you’re reading don’t worry about what a sumpsit – okay, if Liz Warren is your professor maybe worry about it.
Andrew: Seriously, like, get it wrong. Because what happens is you read the case in context and you don’t stop to look up every stupid 18th Century word, you’re just like yeah, okay, it’s an action in a sumpsit. Well what does that mean? Like I think they wanna get the money back. So could you define it with dictionary precision? No, but you don’t have to.
Andrew: This is what I would say. The earlier cases are very, very hard to read and so much of this is just about getting you familiar with the process of reading cases, and that will come with time in law school. So read it, absorb, you know, don’t stop, don’t define every word, don’t go looking up a sumpsit. Just figure out the gist of what this case is about-
Thomas: The vibe of the thing.
Andrew: And ask yourself, yeah! [Laughs] Why did they assign me this case? What did they want me to learn from this case? You’ll do fine. We’re gonna do a super deep dive-
Andrew: On all of this.
Thomas: And that, everybody, was what Andrew thinks 60 seconds is! [Laughs]
Andrew: [Laughs] 59, 60. There we go.
Thomas: There we go! Time! [Laughs]
[Patron Shout Outs]
Thomas: It is time for T3BE, answer time. Yeah, this was a very specialized one, I don’t know what happened here.
Andrew: So this was a question about the service of discovery. So the question asked: the attorney for the plaintiff in an action filed in federal district court served the defendant with the summons; that is the notice that you are formally being served with the complaint and that you have to respond; the complaint itself, and a whole bunch of interrogatories asking questions about the defendant’s contentions in the case. Said the defense counsel was going to be able to move for protective order, but why? Why is it inappropriate to do that? I wanna tell you, something interesting here, this process is not inappropriate in many states. It’s not inappropriate in Maryland.
Andrew: You can serve-
Thomas: Oh, okay.
Andrew: You can serve the complaint and serve a whole bunch of interrogatories along with the complaint.
Thomas: What, now I’m even more confused!
Thomas: I was probably [Laughing] really far away from this one!
Andrew: [Laughs] So it’s not appropriate in the federal system because of the Federal Rules of Civil Procedure, because the federal system says “no no no no no, we are not gonna have” it’s not gonna be – litigation in federal court is not gonna be like your free for all of you peons down in state court, we’re gonna do this in an orderly process.
Andrew: So the question is, first, you narrowed it down to B and C, eliminating A) interrogatories are proper only to discover facts, not contentions. That’s not true. In fact, there’s an entire set of interrogatories that are called contention interrogatories!
Andrew: So it is perfectly fine to say please describe if you contend – I’ll give you an example of one that I use all the time. I am defense counsel and I will say you’ve sued us for X, please describe if you content that we owe you anything else in connection with any other matter.
Andrew: Right? That then puts the onus on the other side to say either yes, we do think you also owe us in X, Y, or no, yeah, no, we’re done, this is it. This is all we’re saying you owe us. So it enables us to kind of focus down.
Thomas: But what would be the interrogatory – give me an example, if you don’t mind-
Thomas: Then the plaintiff in a federal court serves the defendant with a summons. What’s an interrogatory they’re gonna ask about a contention?
Andrew: Put the shoe on the other foot. If you were the plaintiff and it’s a civil lawsuit, you might say state the bases of any affirmative defenses that you might offer in this litigation.
Thomas: Oh, really?
Andrew: Yeah, yeah.
Thomas: I didn’t know that’s how anything worked! [Laughs]
Andrew: Yeah! So you can say yeah, you answered the complaint and said that you might raise the affirmative defense of unclean hands. That is the plaintiff did bad stuff and so even if you owe the plaintiff money you don’t owe this plaintiff any money ‘cuz they used bad stuff in getting there. 100% of the time I would say yeah, okay, tell me the bad stuff you think my client did.
Thomas: I just thought this happened in the courtroom.
Thomas: Oh, this makes law shows even worse, essentially.
Andrew: [Laughs] Now, I should say, many many lawyers think contention interrogatories are useless.
Andrew: I don’t think that, but it is certainly the case that you tend to get very …
Thomas: Yeah, wouldn’t you want to play your cards a little close to your vest or chest? I never know which one. Both?
Andrew: [Laughs] You do, but the flipside of that is I’m going to ask your witnesses their theory of the case anyway. When you put on fact witnesses, your company’s CEO, I’m gonna say “Mr. Smith, how much money do you think my client owes your company?” Then if you can’t tell me a precise number then I’m gonna say-
Thomas: [Impersonation] Mr. Smith, I’m confused!
Andrew: [Impersonation] I’m confused! [Laughs] Then if you give me a precise number, I’m gonna say oh, okay, so my client owes your company $10 million dollars. Let’s talk about how that number was calculated.
Andrew: I’m gonna just ask you open ended questions and write it down on my little notepad until we get to $10 million dollars. So I’m gonna do that in our deposition anyway, so I don’t think it’s a big deal-
Andrew: Knowing that I’m gonna prep my witness to say that, to write it out in the answer to an interrogatory. Again, different lawyers disagree over that. But that is, you excluded A, good exclusion.
Andrew: Because you may discover contentions. You also excluded D, the interrogatories exceed the number permitted without permission, that was a good guess because Rule 33 of the Federal Rules of Civil Procedure allow you to serve up to 25 interrogatories without leave of court!
Thomas: Oh. [Laughs] Got lucky there!
Andrew: [Laughs] So the fact that it was 25 was good.
Andrew: You know, an aspect that you would think would be debated more than it is is that technically you can count subparts as separate interrogatories.
Thomas: Oh, yeah.
Andrew: Yeah, yeah. [Laughs] And sometimes-
Thomas: I imagine one P. Andrew Torrez really sneaking in the sub-sub-sub interrogatory. He’s like “I have 60 seconds worth of interrogatories for you here!”
Andrew: [Laughs] Perhaps. So that leaves B, may not be served until the answer is filed, or C, may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan. You went with B, it is unfortunately C.
Thomas: Gosh dangit!
Andrew: It was super-duper close, and-
Thomas: So close again! [Groans]
Andrew: The reason is – so think about this. The reason is that the obligation to answer comes before the court is going to set a discovery conference.
Andrew: So in other words – and the obligation to answer depends on whether the party is in state or out of state, but you answer first then the court sets a scheduling conference, then after that scheduling conference – that scheduling conference will say “here’s when we think the trial date is gonna be, here’s when discovery will be concluded, here’s when expert discovery will be concluded.” The parties kinda get together and figure out how long the trial is gonna take. That comes after the answer and in the federal system, you know, we sort of tried to have this more civilized model of it’s not just a free for all, you can’t get it in as soon as you want, so that’s a later occurrence and that’s why – I mean, it’s the right answer because the rules say so, but that’s why the rules say so.
Thomas: So close, I’m getting hammered by this thing lately. It’s just one after the next.
Andrew: [Sighs] I know, I know.
Thomas: My second chance law firm, still going strong though.
Andrew: Yeah! I would hire you.
Thomas: Quite the record, yeah!
Andrew: [Laughs] Most of the time you’ll get one of the top two answers.
Thomas: Also, I could just look it up, but yeah. [Laughs] If I were a real law firm. Why don’t we see who the real winner is this week’s T3BE?
Andrew: Well Thomas, I’m gonna break my own rule. This week’s winner is A.J. Hernandez, a lawyer, who writes “it’s C, but since I get no fame and fortune for knowing Rule 26(d), here is my argument for why @seriouspod” that’s you, Thomas, “is still technically right. B: the rules require defendants to answer before they would have to confer, so in that respect B is true. I’ll bill you later.” A.J., that was incredibly clever and I’m gonna break the rule just to allow you to win on that one. Everyone give him a follow, that is @AJHernandezEsq on Twitter, and A.J., congratulations for being the most unlikely of this week’s winners.
Thomas: Thanks for listening everybody! We will see you for another rapid response Friday. As always, see you then!