Listen to the episode and read the show notes
Topics of Discussion:
- Rudy Giuliani’s Office Raid
- Breakin’ Down the Law – Apportionment Might NOT Be Final
- Listener Feedback
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 486. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I am doing fantastic, except we have not done a numerology in a while.
Andrew: I don’t know that 486 is a good number for that, it’s kind of a, you know, generic even number.
Thomas: Well, it just reminds me of the old computers.
Thomas: There was like a 386 and a 2- was there a 486? I don’t remember
Andrew: There was.
Thomas: Oh really?
Andrew: Well, it went 888, then doubled that to 80-
Thomas: Strap in, everybody. [Laughs]
Andrew: 186, 286, 386, 486.
Andrew: But at the time there were some other processors besides Intel that were making knockoffs and you can’t copyright a number.
Andrew: It was super confusing. So, instead of making a 586, 80586, Intel called the chip “the Pentium.”
Andrew: And that’s when they changed from straight numbers to words.
Thomas: Oh my god! This-
Andrew: There you go. [Laughs]
Thomas: This was brilliant. Completely-
Thomas: Spontaneous, and it had a legal tie-in!
Thomas: You can’t patent a number, that is so funny.
Andrew: I think I said patent, I meant trademark. But, uh…
Thomas: Oh, trademark? Okay, either way. We’ve got way too much stuff to talk about for this deep dive.
Thomas: Oh, Rudy Giuliani’s office was raided. Oh, man, I wonder what they found in there?
Thomas: Blech. [Laughs] We’ve got the reapportionment. My fair State, losing a seat, and New York losing a seat, crazy. And also a really good listener feedback on the most recent episode. First up, though, we always have to have a few announcements, I mean we can’t do the show without announcements I think, it’s in the contract.
Thomas: What are the announcements?
Andrew: A couple things; I really, really want to promote next Tuesday’s show because there was a little known hearing of the subcommittee in the subbasement which like six people watched, but I was one of them.
Thomas: Yeah, I saw Biden’s speech.
Thomas: Oh, no, you’re not talking about- [Laughs]
Andrew: No! I mean on Tuesday Sheldon Whitehouse convened a special hearing that laid out the blueprints for – and, again, you talk about thinking long term, it’s about damn time our side started doing this. In the event we are able to un-pork the court, let’s say-
Andrew: -for how a future non-right wing activist Supreme Court could consistently, consistent with the kinds of principles I’ve talked about, show respect for stare decisis, but also overturn Citizens United and maybe Shelby County v. Holder. I’m very, very excited about that, it’s a classic OA deep dive. We’re gonna do that next Tuesday. And one more thing, obviously Biden’s history State of the Union-like-ish speech-
Andrew: -last night. If you want great links, the Ms. Ashley’s notes that we give away to every single patron contain an awful lot of those that break down some of the details that put some meat on the bones of what Biden was talking about last night, and lots, lots more. Just good stuff coming from Ms. Ashley this week.
Thomas: One more quick announcement, Andrew, we’ve – it’s time for another Patreon Q&A, it’s the end of the month. I can’t believe how quickly time flies, but it is time for Patreon Q&A. We love these, they’re so much fun. They’re on YouTube for everybody, but patrons get to ask the questions over on patreon.com/law. Andrew will have posted the question thread by the time you’re hearing this, so hop on that question thread. If your name is Teresa Gomez make sure you’re the first question, because you always are. [Laughs] The important thing to note is that will be on Tuesday the 4th at 3 pm Pacific, 6 pm Eastern. You people on the East Coast, I imagine you’re gonna have a nice beverage, settle down, and more ambitious drinkers on the West Coast could have a nice beverage, but a little early for me.
Andrew: [Laughs] I think we have some trained professional drinkers among our audience. [Laughs]
Thomas: [Laughs] So, come join us, Tuesday the 4th, 3 Pacific, 6 Eastern. It’s another Patreon Q&A, they’re so much fun.
Rudy Giuliani’s Office Raid
[5:38.36] [Segment Intro]
Thomas: Ha ha! In happier news-
Thomas: Couldn’t happen to a nicer troll. Rudy Giuliani’s office, raided. I just wonder if he’s gonna be able to carry on with his podcast.
Andrew: [Laughs] Yeah.
Thomas: You know, we used it for Law’d Awful Movies. I’m gonna be heartbroken if they damage that precious set.
Andrew: They did, you know, take his laptop, so who knows?
Thomas: Someone had to tell him, that’s the thingy you use for the show. Oh, it is?! Aww.
Andrew: I wanted to say a couple of things, and in particular I wanted to continue to repeat that phrase, because I really wish mainstream media wouldn’t use [Laughing] the phrase “raided.”
Andrew: A “raid” sounds like everybody gets together in pirate gear and picks up their swords.
Thomas: Oh man.
Andrew: This was a legal execution of a federal search warrant.
Andrew: I thought I would talk a little bit about what that means and what we know, and what we don’t know. I want to bracket all of that with look, what we don’t know is a lot.
Thomas: What I don’t know is certainly a lot, yeah. [Laughs]
Andrew: [Laughs] And, by the way, that search warrant? If we see a copy of it, so far I have not, it will be because Rudy Giuliani has given it to somebody, okay?
Andrew: The search warrant itself is a non-public document until they show up at trial. But when a search warrant is executed at your house you get a copy of it.
Thomas: Do you think they were just searching for the mic?
Thomas: We’ve got a search warrant, we’re gonna help you out with that mic, and he’s like “thank god, I’ve been looking for that.”
Andrew: We should do a Borat 2 as maybe one of the Law’d Awful Movies, we could do that.
Thomas: Ooh, interesting.
Andrew: Okay. A lot of people have been asking, how do you get this? What happens? Does this mean Rudy’s about to be arrested? Um, and uh, I thought that was worth breaking down.
Andrew: Federal search warrant. What that means is that you have an affidavit from somebody, an FBI agent or other investigator, showing probably cause that evidence of a crime is at a particular location or on a particular person. I’m gonna include a link in the show notes to a sample one of these. This is from an entirely different case in the U.S. District Court for the Northern District of California. It’s In Re: Susan Powell but it’s the same kind of thing that they just executed with respect to Rudy.
What you get is you get a cover page that says “I,” (state your name) [Laughs] “being duly sworn depose and say: I am a” (and then you give your title) “and I have reason to believe” then you check the box that either “on the person of or on the property or premises” then you describe where that is. 123 Fake Street. “In this particular district there is now concealed a certain person or property, namely” (then you describe what it is that you want to find) “which is evidence of the commission of a criminal offense, the fruits of the crime, and property designed or intended for use for which it has been used as a means of committing a criminal offense, occurring in violation of” and then you have to specify what particular federal offense it is. Then it says, “The facts are as follows:” and you attach an affidavit. This affidavit is like 14 pages long, and it just describes the investigation that you’ve done and why you then believe that you have probably cause to think that evidence of a crime is at that particular location.
I mentioned that, by the way, the target – so you fill out that application, you give that to a U.S. magistrate judge, and then the magistrate judge reads and evaluates and makes a determination and says yes, you’ve shown probably cause, I’m gonna issue a search warrant, or no you haven’t, come back when you’ve got more. By the way, that is a real determination. We go through the “a grand jury will indict a ham sandwich” kind of thing, but magistrate judges take seriously the notion of looking at an affidavit and deciding whether it shows probable cause. Now, probably cause is not as high as 50%. It is probable.
Andrew: The reason that we have that that way is to balance between the 4th and 5th Amendments. The 4th Amendment says you have a right to be secure in your home, your “persons, houses, papers, and effects, against unreasonable searches and seizures.”
Andrew: And so “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.”
Thomas: Right. So you need some specificity there.
Thomas: You can’t just be like yeah – [Laughs] which is tough with Giuliani, because my affidavit would have been like “yeah, look at him!”
Thomas: Your Honor, look, yeah, there’s crime. There’s gotta be crime, just look at him. Look at that guy.
Andrew: And, again, we also have, you know, exhibit number a billion in “originalism is stupid.” What’s a “reasonable” search? What’s an “unreasonable” search?
Andrew: What does it mean to describe something with “particularity.” The answer to all of that is check the case law.
Andrew: So, you know, for example in the 4th Circuit the particularity requirement is really, really minimal. I know because I worked on a case where we lost one of these, and it was just like “well, we want stuff that you used in criming,” and the 4th Circuit upheld that and said “yeah. Stuff that you used in criming is enough to particularly describe the things to be seized.”
Thomas: Wait, that’s how you lost?
Andrew: Oh yeah.
Thomas: That was good enough?
Andrew: Yeah, it was good enough.
Andrew: It’s bad.
Thomas: Wouldn’t that apply to anything?
Andrew: [Laughs] Yes, yes.
Thomas: Like any? Okay.
Andrew: I mean, without going down that rabbit trail.
Thomas: Okay. But I mean, let it suffice to say that this feels like it could be abused.
Thomas: Or at least judges could do a bad job, you know? Does that happen a lot?
Andrew: It certainly could. And remember that the reason you employ this is because of the interplay between the 4th Amendment and the 5th Amendment, which says “No person shall be … compelled in any criminal case to be a witness against himself.” Look, Rudy knows the crimes that he’s committed, but if you ask him, if you’re like “okay Mr. Giuliani-
Thomas: He might actually tell you! [Laughs]
Andrew: [Laughs] He might. Very true. But a hypothetical person [Laughs] would say “I decline to answer on the grounds anything I say might tend to incriminate myself and I assert my 5th Amendment privilege.” You don’t just want to give up at that point, so if you can prove probable cause, again, has to be – it’s less than certainty, less than 50, 51 to 49, but its’ more than just a fishing expedition. Classic example, Thomas, a police officer observes you and then the next day you have a brand new car.
Andrew: It’s an expensive, tricked out SUV and the cop says “well, if Thomas were a drug dealer that would certainly explain why he was able to afford a fancy new car. I’m gonna go”- this would be State law issue, but whatever, “I’m gonna go to a judge and I’m gonna get a search warrant that allows me to go ransack Thomas’ house looking for evidence that he deals drugs.”
Andrew: Because, you know, after all, fancy new car. Well, you know, that would not be probable cause. [Laughs] Because yeah, it is slightly more likely. You know a person is slightly more likely to be a drug dealer if they have bought a new car.
Andrew: But there are just so many other confounding factors that that wouldn’t rise to the-
Andrew: -level of probable cause. Ultimately what this says is that there’s an affidavit floating around out there that explains why Rudy Giuliani and his personal effects, and it was an iPad, a laptop, and a cell phone, that there was probable cause to believe that there was evidence of a crime or crimes on those items. Until we know more, until we see the affidavit, until somebody is charged, that’s all we can say.
Andrew: That’s more than nothing. [Laughs]
Thomas: I feel like this is just guaranteed to bring up the conspiracy theorists on the right and this will be Biden going after his political opponent, blah blah blah blah blah. Is this DOJ? Sorry, what office is this? Who’s doing this specifically?
Andrew: Oh yeah, this is federal. This is DOJ.
Andrew: And this is – the story broke during the Trump administration.
Andrew: The speculation, and we should add one more thing that we know as a matter of fact, and we know this and can demonstrate it from the Michael Cohen search, and that is when you are executing a search warrant against an attorney, internal DOJ procedures require you to run that-
Thomas: Taint team?
Andrew: There’s almost certainly a taint team sorting through what’s been seized.
Thomas: Yes! I’ll get in the van!
Andrew: [Laughs] I’ll start the theme song. But yeah, it has absolutely been approved at the director level or higher, leading to, again, some speculation, and that’s all you can say.
Andrew: That Bill Barr personally intervened and prevented-
Andrew: -this search warrant from being executed.
Thomas: Oh wow, okay.
Andrew: You know, speculation. We cannot say he definitely did.
Andrew: We can say that doesn’t seem out of character for Bill Barr. [Laughs]
Thomas: Yeah. That is his character. He’s that character.
Andrew: He is that character.
Thomas: The thing he does best. Wow!
Andrew: But we don’t know.
Breakin’ Down the Law – Apportionment Might NOT Be Final
[17:38.4] [Segment Intro]
Thomas: Okay, reapportionment. Oh, boy, this feels like the deepest of deep dives.
Thomas: Here we go. What’s going on?
Andrew: So, I want to start out and tell you there’s a little bit of pedantry here, but that’s some of my favorite things to do.
Andrew: Every story that you have read about reapportionment in the press is wrong.
Andrew: Here’s what I mean by that. All of them have said “Texas has gained two electoral votes.”
Andrew: “North Carolina, Florida, Oregon, Colorado, Montana, have gained one, and California, Pennsylvania, Ohio, Illinois, New York, Michigan, and West Virginia have lost one.” You kind of add those up in your head and you’re like well, depending in if the Democrats can Stacey Abrams their way in Texas, you know, maybe this is a push, maybe it’s a slight-
Andrew: -Republican gain. Here’s what I want to tell you. None of those States have anything right now.
Thomas: Well right now, yeah.
Andrew: But none of them are entitled to begin redistricting right now, because what has happened is an internal report has been sent to the President from the-
Andrew: -Acting Director of the Census Bureau on behalf of the Secretary of Commerce. And that is a report pursuant to 13 U.S.C. § 141(b), which says that “The tabulation of total population by States … as required for the apportionment of Representatives in Congress … shall be completed within 9 months after the census date” (they missed that) “and reported by the Secretary to the President of the United States.” The legal right to do anything is not triggered until President Biden takes those numbers and transmits them to the Congress. If that sounds a little like “okay, but is this one weird tricky?” it really isn’t.
Thomas: Well, we did a whole thing on this, right?
Andrew: We did indeed.
Thomas: We talked about this.
Andrew: Yup, this was episode 307 in which we were concerned-
Thomas: Because this has been in my mind the whole time, I’m glad we’re covering this because I’ve been worried that we maybe undercounted the Latino population, maybe other problems due to the question that was gonna be in there then wasn’t in there and then was. Do we have maybe a chance to repair these numbers, or what?
Andrew: We do. So, we have two distinct steps in which we can address these numbers, and that’s why it was very important, yeah, it was a little click-baitey, audio click bait? Listen bait.
Thomas: Well, who knows what I’ll title this?
Thomas: “Andrew says EVERY news story is wrong” might be the title by now.
Andrew: But right now President Biden has the discretion to look at these numbers, and remember we covered this. On day one Biden issued an executive order directing that the census be a full and complete count and that it not discriminate on the basis of citizenship status, which is what’s required by the law. That went out, that was a specific instruction to the Secretary of Commerce and to his delegees, which include the Acting Director of the Census Bureau. Biden is well within his authority to say okay, well now we’ve gotta take a look at the numbers you sent me and make sure they are consistent with that executive order. The States can’t do anything about that until that is transmitted.
Again, this is clear from a 9-0 Supreme Court case that we talked about in episode 307 called Franklin v. Massachusetts, which says “There is no statute forbidding amendment of the … census itself after the Secretary submits the report to the President … Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data are submitted to him. It is not until the President submits the information to Congress that the target stops moving, because only then are the States entitled by § 2(a)” (that is 2 U.S.C. § 2(a)) “to a particular number of Representatives. Because the Secretary’s report to the President carries no direct consequences for reapportionment, it serves more like a tentative recommendation than a [full] and binding determination.”
Andrew: That’s as clear as the Supreme Court gets to say um, President Biden can take the time he needs to look at the data, to make sure that the underlying data is accurate, to question how it was compiled. He can do all of that and there is nothing, there is no cause of action, there is no right. The target is allowed to keep moving until he transmits that data. That’s our step one.
Thomas: Right. But is there anything substantive that may, you know, actually let us change these numbers? Do we have any way of knowing that now?
Andrew: Well, put a pin in that. [Laughs]
Andrew: There’s a short answer to that question, which is no we do not have affirmative evidence right now, which is why you study them and why you figure it out.
Andrew: But when I get to [Laughing] how these numbers were calculated I think you’ll be surprised.
Andrew: Now, the person who transmitted these numbers is Ron Jarmin, the Acting Director of the Census. He’s an economist, he’s a career numbers guy. He’s been at the Census Bureau since 1992, so he was there under Trump, but like, you know, seems like a career civil servant.
Andrew: No reason to distrust him. But also no reason to think that they performed additional scrutiny, we just don’t know. Now I want to talk about how the numbers work, and I’m going to include the link [Laughs] the census website includes all of these Excel tables? What you don’t have publicly available are how the counts were achieved in the first place. That’s what we really need to figure out to determine if there was suppression. But the data we do have is really, really fun to play around with. [Laughs] And if you are a math geek or pretentions of one like me, you will get lost in this. So, click on the link from the show notes.
I now understand how this gets turned into members of Congress. Took me about a day and a half-
Andrew: [Laughing] to figure this out. The Constitution, Article 1, Section 2, requires an actual enumeration every ten years of the residential population of the United States. Actual enumeration means you’ve gotta really count all the real people who live here. That number is just under 335 million people. But you can’t turn that into Congresspeople yet, because first you have to subtract out some stuff. Why do you have to subtract out some stuff? Because the 335 million includes 3.3 million people who live in Puerto Rico.
Andrew: They should have 4 congressional seats, by the way; and 689,000 people who live in the District of Columbia, which is more than Vermont or Wyoming. You’ve gotta subtract out those numbers, and then you have to put some numbers in. We talked about this in episode 307 with Opening Arguments good friend Richard Nixon.
Andrew: Who instructed the Commerce Department to include in the census U.S. military and federal civilian employees living overseas who would then become residents of their home State for apportionment purposes. Because they’re not living here, so they’re not part of the residential population, but they have a right to live here, and you know, this was kinda post-Vietnam war and Nixon’s thought was “I will gain a strategic advantage for the Republican party because we will be counting mostly Republican voters abroad.”
Andrew: He was able to pitch it in “really? You’re gonna say that somebody who’s been drafted-
Thomas: Yeah, that the military shouldn’t have the right to be represented?
Andrew: [Laughs] Right.
Thomas: This is why Nixon was so much smarter than Trump. Trump would’ve never thought of something like this.
Andrew: Correct, correct. So that gets added in. But I want to tell you, again, put a pin in this. These numbers are pretty small. It’s about 350,000 people nationwide, and only 4 States have more than 15,000.
Andrew: That’s California, Texas, Florida, and Virginia. Okay, so you start off with the residential population, you subtract out Puerto Rico and D.C. and then you add in those 350,000 citizens living abroad, and then you give the apportionment population. That is a fixed number: 331,108,434. So I thought you just divide that by 435, right? You get 1 for every 761,168.8. So every 761,169 people you get 1 congressional representative. If you do that, you do not get the right result.
Let’s use New York as an example. New York has 20,215,751 people. You divide that by 761,168.8 and you get 26.56. That should round up to 27, that’s how many seats New York has, but they’re losing one with this census.
Andrew: So, why are they losing one? You might thing, oh well, okay, 26.56, maybe another State with, like, 4.8 needs to round up.
Thomas: Yeah, I was thinking, is it rounding in the really small States or something? Or because they at least need a certain number?
Andrew: Yes and no. [Laughs]
Andrew: Montana is gaining an extra seat, but you take Montana’s population, that’s 1,085,407, you divide that by 761,169, and you get 1.42.
Andrew: So, wait a second, why is it that we’re gonna round up? 1.42, that should round down to 1, right? Or at minimum, if you’re not gonna round up 44/100ths why would you round up 58/100ths? I was totally befuddled by this until I dug into the law. The answer is 2 U.S.C. § 2(b), the one I mentioned earlier. It says, and I’m gonna cut out the middle part that doesn’t matter, it says, “Each State shall be entitled … to the number of Representatives … based upon the method known as the method of equal proportions, [with] no State to receive less than one Member.”
Andrew: And I’m like, alright, I get that last part. Every State gets at least one.
Andrew: What the hell is the “method of equal proportions?” [Laughs] It was invented by a guy named E.V. Huntington in the 1920s. E.V. Huntington has no Wikipedia entry.
Andrew: This guy’s lost to time, but codified in our law. I’m gonna explain the math in a minute, but here’s the best analytical explanation I can come up with. If you took Montana’s seat and gave it to New York, then New York would go from – let’s assume all these numbers are correct. The reason why Montana gets the seat and New York doesn’t is we’re stuck at 435.
Andrew: Every time you give to one you take away from somebody else. You take it away from New York – if you do the reverse, New York would go from, with 26 seats they average 777,529 people per congressional district. The average is supposed to be 761, so they’re taking a penalty of 16,500, and they go to 748,731 per district, which is a bonus of 12,400. In other words, they would go from being a below average State of representation-
Andrew: -to an above average State over a lot of congressional districts. On the other hand, Montana would go from 542,000 people per district, which is a bonus of 219,000, making it the very best State-
Andrew: -in terms of having your voice heard, to 1,085,000 per district, which is a penalty of 324,000.
Andrew: Which would make it the very worst State in order to vote.
Andrew: Figuring out how to weigh between the benefit and the harm of all of those people across all those different States.
Thomas: Plus you’re talking about just two States. I mean, I imagine this is a multi-State process.
Andrew: You! You imagine correctly.
Andrew: They came up with this algorithm that is bonkers.
Thomas: Yeah. Oh, I would love to code this thing into Excel. That would be so fun. That’s like what I did for my old job, I love it! [Laughs]
Andrew: Alright, so I’m gonna explain the algorithm, we’ll see if you can code it into Excel.
Andrew: But I want to start with-
Thomas: It would take me more than the 10 minutes we have on the show.
Andrew: It might. I want to start with, as we are thinking about structural form to the Court, to the electoral college, you need to know that this method of apportionment, that the size of the Congress, all of that, that does not require a constitutional amendment.
Andrew: It does not have to be this way.
Thomas: Well, we’ve covered-
Thomas: We could just increase the number of representatives, couldn’t we?
Andrew: We could, and in fact – I did not know this. For the first 60 years in our nation’s history they had a fluctuating size of the House because they just ignored the fractions. [Laughs]
Andrew: They’re like – oh.
Thomas: It’s the 1800s, math sucks, we don’t know how to do it yet.
Thomas: Nobody has a calculator. Uh…
Andrew: That’s exactly correct. They were just like yeah, just take the first one.
Thomas: [Laughs] They’re on their abacuses, they’re like “I can’t split one of the little stones, whatever those are.”
Andrew: [Laughs] Yeah!
Thomas: It’s whole. We can’t do it. Increase the Congress.
Andrew: And it continued. So, it was that way for the first 6 censuses. Then in 1840 they finally started doing a little bit of math where they just rounded up anything with a .5.
Andrew: You know, under that New York would get its seat and you would just, you know, if that meant you went to 436 so be it. What the hell? 435 isn’t magic.
Andrew: Then [Laughs] they started with the total number of seats based on the total population, and they allocated it out based on whole numbers, figured out how many seats were left, and then went and gave them in sort of like inverse order of the fraction. I know that seems a little – I’m not describing it the best I can, but if we were doing it that way you would give New York a seat at 26.56.
Andrew: Before you would give Montana at 1.42.
Andrew: Because .56 is bigger than .42. Then we capped it all at 435 and that led to [Laughs]-
Thomas: Yeah, that makes it really hard.
Andrew: In 1920 this problem, this actually happened. Between 1910 and 1920 Alabama gained population. Don’t ask me why.
Andrew: But more people [Laughs] sorry to our listeners in Alabama, that’s a cheap shot and I’m joking. More people were living in Alabama in 1920 than were in 1910. Other States lost population, as always happens, and yet Alabama lost a representative [Laughs] while those other States didn’t. And as you can imagine, Alabama was super pissed.
Andrew: They were like wait a minute!
Thomas: We need that seat for racism purposes!
Thomas: Come on!
Andrew: It was 1920, everybody needed that seat for racism purposes back then.
Thomas: [Laughing] I mean, that’s a good point! [Laughs]
Thomas: I’m sure they had competing racism purposes! “Our racism purposes are better than yours! Give us the seat back!”
Andrew: But that seems insane, right? You can’t have more people-
Andrew: -and lose a seat while other States lose people but stay the same. But what happened was in 1910 they had a slightly bigger fraction that rounded up.
Andrew: They gained – that fraction got even bigger, but the other States grew by even more so that fraction got taken away to give to those other States.
Thomas: You’re not saying – not the States that lost population, because you said they lost population.
Thomas: But other States that had-
Andrew: Third party States that had gained, gained even more.
Thomas: So it lowered their fraction a little bit and so they didn’t get the extra spot anymore.
Andrew: Yup, exactly right.
Andrew: So, E.V. Huntington came up with the method of equal proportions to make sure this never happens again.
Thomas: [Laughs] I was just about to make really disparaging jokes about Huntington.
Thomas: He’s like “Ah! Not on my watch will Alabama lose its seat for racism purposes!” But I don’t want to be sued by the family of E.V. Huntington, so never mind.
Andrew: Nobody knows who he is! So I think we’re in good shape!
Thomas: E.V. Huntington took off his hood and was like “dammit! I’m gonna do some math!” [Laughs]
Andrew: [Laughs] God! This podcast is not insinuating that E.V. Huntington is a member of the Ku Klux Klan!
Thomas: I’ll cut it, it’s fine. [Laughs]
Andrew: No, no, no, no! I think you should keep it in, it’s funny as hell! Anyway, it’s based on – the first thing is, and this almost doesn’t matter but I know you know what it is and you’re gonna geek out a little bit about it.
Andrew: It’s based on the geometric mean rather than the arithmetic mean?
Thomas: You’re gonna have to refresh me, though, I can’t remember.
Andrew: I had to refresh myself on this.
Thomas: It’s been some years.
Andrew: Everybody knows what the arithmetic mean is. 2+8, so the arithmetic mean of 2 and 8 is 5.
Andrew: 2+8=10, divide it by 2 equals 5. Geometric mean is almost exactly the same, particularly as numbers get bigger, but what you do is you take the product of the two quantities-
Andrew: -and then take the square root.
Andrew: Or the nth root if it’s multiple. The geometric mean of 2 and 8 is 2 times 8, which is 16. The square root of that is 4.
Andrew: Geometric mean of 2 and 8 is 4, arithmetic mean is 5. As your numbers get larger those two converge-
Andrew: -which I will show you. For example, going from 29 to 30, the arithmetic mean is 29 and a half. The geometric mean is 29 times 30, which is 870, take the square root, which is 29.4958.
Andrew: As I explain geometric mean here, if you’re still confused by it you can just think of it like an average and you’ll get almost all the way there. Here’s how the method of equal proportions works, this is what you have to code into excel, and good luck! [Laughs]
Andrew: First, you allocate 50 seats, because every State’s gotta get one seat.
Andrew: Then, for the 51st seat you figure out each State’s priority value for a 2nd seat in congress. That priority value is the geometric mean multiplied by the population of the State, the inverse of the geometric mean for that seat number multiplied by the population of the State, I know that’s gonna require a little unpacking, so let’s do it for seat number two. You’re going from seat one to seat two, so arithmetic mean would be one and a half, halfway between one and two. Geometric mean’s a little harder, but it’s one times two, which is two, and then you take the square root, square root of two is 1.414. Like I said, the geometric mean is gonna get closer and closer-
Andrew: -to the arithmetic mean, but right now it’s a slightly smaller number, 1.414. Then you divide every State’s population by that 1.414 number. Now this is the first seat, so-
Thomas: This is the second seat, right?
Andrew: Well, yeah, this is the second seat, the first one that we’re allocating by priority value.
Andrew: So, who shows up the highest?
Thomas: Just whatever the biggest State is.
Andrew: Yeah. California.
Andrew: Population of 40 million, because every State is getting divided by 1.414-
Andrew: So, the State with the most population, California, 40 million, priority number 28 million and it gets the 51st seat.
Andrew: Think about what that means. That means if we had a Congress of 51-
Andrew: Then every State would get one representative except California would get two.
Thomas: Okay. I guess I’ve spent a lot of brain matter trying to figure out why the geometric mean matters there?
Andrew: I can’t- [Laughs]
Thomas: If old Huntington justifies this in any conceptual way or if it was just one weird trick to get some more racism congressmen.
Andrew: [Laughs] No, it has to do with-
Thomas: Because the same calculation would absolutely apply with the mean.
Andrew: It would, but now let’s iterate the process.
Thomas: Okay. Let’s iterate, everybody.
Andrew: Now let’s go from 51 seats in Congress to 52. How do you do that? Same thing. For every State with one representative, that’s all of them but California, you take that 1.414, multiply it by their population. California already has two seats so their number is 3.
Thomas: Right. So it’s two to three?
Andrew: How do we get that – right.
Andrew: So 2.3, again that’d be two and a half if we did the arithmetic mean, but since it’s geometric we get two times three, which is six.
Andrew: And the square root of 6 is 2.449. You know, look, we’re real close to 2.5 already.
Thomas: Yeah, still not figuring out why that matters, but okay.
Andrew: Yup, okay.
Thomas: We’ll see.
Andrew: California gets that new priority value. They get 40 million divided by 2.449, or a little over 16 million.
Thomas: I’m guessing that’ll still put them ahead of a lot of States, but not like New York.
Andrew: It will put them ahead – it actually still puts them ahead of New York.
Andrew: It puts them ahead of every State without 23 million people in it.
Thomas: Wait, you’re telling me that California is so much bigger than New York that it would get a third – if there are only 52 it would get 2 before New York got 1 extra one?
Andrew: It would get 3 before New York gets 2, yes indeedy.
Thomas: Wow, that’s crazy!
Andrew: I know! Isn’t it? But we do have one State that has more than 23 million people, that’s Texas with 29 million people. So its priority value for seat 2 is now almost 20 million, and it gets the 52nd seat.
Andrew: Then you do the same calculation again for 53rd, and as you just worked out, that’s California again.
Thomas: Hmm. Wow.
Andrew: Let that sink in for a second. If we had a Congress with 53 seats, based on the 2020 census numbers that would be 48 States get one, Texas would get two, and California would get three.
Thomas: Well, I guess just didn’t realize California was that much bigger.
Andrew: They are that much bigger, yeah.
Thomas: Okay, so, it’s not that the math is weirder than I thought, it’s that I’m just totally wrong about the population.
Thomas: I didn’t realize California’s just about twice as populace as New York, okay.
Thomas: That’s crazy. I did not know that.
Andrew: I’m not gonna go through all the rest of the-
Thomas: No, let’s do it. Every single one, Andrew!
Thomas: We’re gonna crunch these numbers. [Laughs]
Andrew: But that’s what you have to do-
Andrew: -to get to 435. I mean, literally.
Thomas: I was gonna say earlier, it must be an iterative process where you do one at a time and that kind of avoids the – when you’ve got multiple States with rounding and you’re not sure which one gets the extra one, I figured there must be some stepwise process-
Andrew: Yup. But now what I want you to understand is wherever you stop in this stepwise process, you’re going to screw somebody. Every stop is unfair.
Thomas: Mm-hmm. Yeah, of course.
Andrew: If you stop at 51 every State but California gets screwed.
Thomas: Sounds fair to me.
Andrew: If you stop at 52, California is actually screwed more than any other State but Texas, because Texas would get two reps for 29 million people, averaging about 14 and a half million per seat. California will have two for 40 million people, which is averaging 20 million people a seat, and Wyoming gets one for 578,000 people.
Thomas: [Laughs] Yeah.
Andrew: The census has published the data – oh my god – the iterated data all the way down to seat 435 and then the next ten.
Thomas: Oh, interesting.
Andrew: Which is super fun.
Thomas: Just to let us know? Hey if you want to increase by ten here’s what it would look like.
Andrew: Well, hold onto your butt. [Laughs]
Andrew: Okay? Seat 435 is Minnesota’s eighth congressional seat.
Thomas: [Sighs] What a waste. I mean, uh, good! Good for Minnesota.
Andrew: [Laughs] The priority value to Minnesota for that seat is 762,997.705. Now that’s just an average, that number inherently doesn’t mean anything, but I want you to understand this: New York would be seat 436. Their priority value for that 27th seat is 762,994.352. If you multiply that back out by the population what that means is if the census were to show that New York had 89 more people in the State of New York then New York’s priority number would move ahead of Minnesota, so Minnesota would lose that district and it would go back to New York. So instead of losing one, New York would stay even and now Minnesota would be in the losing one category.
This is important because when we are talking about having standing to challenge the count, New York-
Andrew: Every court, 89 votes out of-
Thomas: Yeah, that’s so close.
Andrew: 89 people out of [Laughing] 21 million is, you know, an infinitesimal percentage.
Thomas: That’s what I’ve been wondering. So anything that changes these numbers even in the slightest could have a cascading effect, even in any other State, right?
Thomas: Some numbers anywhere could possibly, because of the weird way this is calculated, disrupt the entire sequence of calculations.
Andrew: You have immediately perceived the conclusion that I was trying to lead people to, and that is it is not just New York-
Andrew: Consider this, over seat 435, yeah, New York okay, you definitely have standing because of the 89, but now Minnesota gets standing even though Minnesota would need 11,000 more people to move up to 434, but they get standing because they’ll lose their seat if New York moves up.
Andrew: As soon as you start going up the thing it disrupts the entire chain of all the States below it. You know, the last couple of States that are in are Minnesota, Montana, California, seat 52, Colorado, Oregon, North Carolina, Alabama, Rhode Island, Illinois. Yeah, it’s a weird hodgepodge of States that could have their congressional districts threatened based on movement by this priority value number at the very, very bottom of the iterative chain. It’s super-duper interesting, and I mean, look, it’s super bad for like a stable democracy? But if you’re a law geek and a numbers geek like I am then I think you understand why I had so much fun putting together this segment! [Laughs]
Thomas: Yeah, absolutely! I didn’t think this would be that much fun, but I loved it.
Andrew: There you go! That is – that’s what’s on deck and the takeaway of all of that is A, I still don’t understand why they use the geometric mean. [Laughs] But B-
Thomas: Yeah, I’m really trying to think conceptually how that would be. So that would be like when it’s a lower number of seats – that’s really the only difference. I guess it would prioritize when a State is going from, you know, a high number like California, for example, 51 to 52, that’s gonna be closer to the average between those, the regular mean, than when you’re going from 1 to 2 or something. Is that just a way of maybe prioritizing one or the other of those situations?
Andrew: That’s right. It’s a way of striking that balance as between-
Thomas: Yeah. [Sighs]
Andrew: -and really happened here.
Andrew: As between Montana and New York.
Andrew: Because if you adopt a different method, you know-
Thomas: Oh, when I make my spreadsheet I’m gonna be able to plug in what the regular mean would get you. [Laughs]
Andrew: Oh! I love it!
Thomas: How many Patreon dollars for that spread- that would be a lot of work for nothing so I don’t know if I have time to do it!
Thomas: Could I release it to patrons? No, I’m just kidding. That would be a lot of fun, though, I honestly would love to do that.
Andrew: So, there you go. That’s everything I could possibly come up with about apportionment.
Andrew: I hope you loved geeking out as much as I did.
Thomas: But the key takeaway is this is maybe still subject to change, possibly.
Andrew: Yes, exactly right. That is the key takeaway.
Thomas: Okay, I love it. I’m glad, I want there to be a way that I don’t lose a seat and New York doesn’t maybe lose a seat to Minnesota. No offense to Minnesota, but just for the blue red purposes. You know, I guess this could all even out somehow, depending on how elections and map drawing goes, but who knows?
[49:58.9] [Segment Intro]
Thomas: Okay, quick important feedback, let me read this feedback that you and I both got, here. [Laughs] So Michael commented on Patreon, “I think you sort of downplayed the distinction between knowing a client is lying and suspecting a client is lying,” this is, of course, about our most recent episode. “As you correctly noted in the former case the lawyer’s ethical obligation not to suborn perjury by the client, but in the latter case, mere suspicion, if a lawyer were to refuse to put the witness on the stand wouldn’t that lawyer be usurping the jury’s roll as a fact finder? What about this option, the lawyer puts the client on the stand and lets them give their testimony in narrative form with the lawyer asking no questions and thus not eliciting perjured testimony.” That’s interesting.
Andrew: Yeah. This was super interesting, really smart by Michael. I want to make two points; this all comes from rule 3.3(a)(3) that we discussed in the last episode. First, and just to make this very, very clear, and this will [Laughs] come into play when we get into our second bit of feedback. Rule 3.3(a)(3) prohibits – says “a lawyer shall not knowingly offer evidence that the lawyer knows to be false.” Repeating that word “knowingly” should give you a pretty big hint here. It applies only to evidence that you know is false.
Andrew: If you merely suspect that it’s false, the rules are 100% clear, and the ethics are 100% clear, you can’t refuse to let your client testify. I thought we made this pretty clear in the last episode.
Thomas: Yeah, I think you did, um, definitely. I want to take some blame for clouding this, because I think I was talking about Dershowitz more because I think that guy’s a scumbag-
Thomas: -and I was using him as more of an example. Sorry if I kinda colored the way that people were perceiving this entire segment.
Andrew: Oh no no no. Look, we got a ton of feedback, we got a lot of people who thought we were too kind to, you know, criminal scumbags. [Laughs]
Andrew: And we got a lot, you know, we got one in particular from a public defender and public defenders are heroes that thought well hey, we’re kinda playing into that trope of guilty people don’t deserve representation. That actually makes me feel pretty happy about the segment.
Andrew: If everybody’s a little bit unhappy then probably we did a good job. But I thought there were great points that were worth clarifying. So, first, the rules are crystal clear, it’s comment 9 interprets that sentence, and it says “this rule does not permit a lawyer to refuse to offer the testimony of a client where the lawyer reasonably believes, but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.”
Now let’s play that out a little bit. What do you do if you just strongly suspect that your client is lying to you and will lie on the stand? What I do is I practice cross examination. I have actually had this-
Andrew: -in one of the very few criminal cases, it was a CJA panel that I volunteered to take up because a judge asked me to about 15 years ago. It’s one of the few times I have represented a party, this was a witness who had been given immunity and was being called to testify in a criminal proceeding, but was being called to testify about – to give testimony that included crimes that my client had committed. There were a lot of kind of minefields to navigate, and I suspected that my client was not being fully truthful to me, and I said okay, what we’re gonna do here is we’re gonna practice cross examination, because you’re going to get cross examined by the prosecutor on the stand. I believe you and I’m on your side, so if I can think of questions then I promise you the other side can think of these questions.
Andrew: And then you go after them with your cross examination questions and see what their answers are. If they give terrible answer I will stop in the middle and be like you do understand you just contradicted the question I gave last time? Then the client will say, as said to me, yeah, yeah, but they probably won’t ask that. [Laughs] And I’ll say yeah, they probably will, that’s what lawyers do. You can use that as leverage to persuade you client not to testify. Again, the reason to do this is not because guilty people don’t deserve representation, it is because your best zealous advocacy on behalf of a guilty client is not to stick them on the stand and let them perjure themselves and look like an idiot.
Thomas: Mm-hmm. Sure.
Andrew: Because yeah, it’s not about they have a right, but if you are taking seriously your duty to that client that is to try and not put them in a position where they’re gonna wind up with the worst possible outcome. That’s why I did that. Say look, if you can’t answer the questions from me, maybe you’re not gonna be able to answer them when you’re on the stand. But at the end of the day, if you cannot persuade them, the rule is clear, if you merely suspect but do not know, that’s not reason. Client’s wishes trump.
It also means that when you are evaluating these two competing principles that you should probably err on the side of zealous advocacy. Comments 8 and 9 talk about what you can do when you suspect something to be false. Comment 9 (quote) “permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false” (end of quote). In other words, you have discretion as a lawyer to decide what testimony you’re going to put on when you merely believe it to be false. That decision is taken away from you when there’s a core right at state, which is the right of a criminal defendant to testify on their behalf.
The second part, the rest of rule 3.3(a)(3) also includes a remedial instruction. It says a lawyer shall not knowingly offer evidence that the lawyer knows to be false, and then that continues. It says “If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity,” meaning later, “the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.” We already talked about that last part.
That remedial step I think means you can’t get around [Laughs] the process by having the narrative testimony, by just sticking a guy on the stand and being like “alright, why don’t you tell the jury your story,” because in a normal case if you come to know that any testimony you have previously introduced is false, and again, know, you have a duty, shall, take reasonable remedial measures, including if necessary, disclosure to the tribunal. You can’t just say okay, well, I’m not eliciting the testimony, [Laughs] I’m not pulling the strings, you’re just talking. But if you come to know that the testimony your witness put up is false, you have to correct it.
Andrew: I wrote back to Michael and Michael said well that’s weird because that idea of just putting the person on the stand actually comes from an ABA pattern instruction, American Bar Association pattern instruction, and I was like really? What give? I went and I took a look at it and it turns out there’s this interesting wrinkle I didn’t know about, and that is some jurisdictions have raised – remember you’ve got sort of the competing rights of the lawyer to not suborn perjury, and the defendant to testify if they decide they want to.
Some jurisdictions have ruled that the defendants right to testify is an absolute privilege. What that means is your client says “I want you to put me on the stand,” and I say Thomas you’ve already confessed to me, I can’t put you on the stand, you’ll perjure yourself.
Andrew: You say too bad, and I have no idea if California is one of these jurisdictions, but you say too bad, California is one of these jurisdictions in which I have an absolute right to go on the stand. If you are then I have to put you on the stand and then the ABA has said-
Andrew: What you should do is stay away from questions where you know he’s gonna-
Thomas: Yeah, that makes sense.
Andrew: -and give him the narrative approach.
Thomas: I can honestly kind of make sense that you should have the right to go on the stand, really.
Thomas: In your own trial. Whatever. It’s probably not a good idea but you should have the right to be like “I will answer all these charges, Your Honor. Gold fringe on the flag. This is not a real court.”
Andrew: Again, I would use the way in which the rules operate as a persuasive tool in that case.
Andrew: I would say okay, you are correct, you have an absolute right to take the stand. I am instructed by the ABA so as not to elicit perjury to put you on the stand and ask you to give a narrative explanation of events. You will notice having sat next to me this entire trial that I have done that with no other witnesses.
Andrew: And if you think is the jury gonna say “hmm, that looks kinda weird,” the jury’s gonna say “hmm, that looks kind of weird,” and opposing counsel is gonna say “hmm, that looks kinda weird,” so I think you’re gonna be putting yourself in danger, but you’re right, if you insist on taking the stand go ahead, take the stand. That would be where I come out of it.
Andrew: I love that comment. We also received, I think, a really important email from a public defender. Disagree with a lot of it but I want to address the points that were made on the air. It’s gonna be kind of a lengthy process, so let’s push that off until Tuesday so that we can give this person what they’re due and we’re not trying to kind of run through it at the end of the episode, but rest assured if you sat there and thought well, seems like Andrew’s not giving great voice to what if you are defending clients that tend to be guilty a lot, rest assured that I have heard that and we will talk about that on the next episode.
Thomas: Well, thanks as always for the fantastic feedback and questions, everybody.
[1:00:45.9] [Patron Shout Outs]
[1:02:40.5] [Segment Intro]
Thomas: Alright and now it’s time for T3BE, and I just remembered we’re introducing the coin, Andrew. I’m gonna beat the coin.
Andrew: Are you really?
Thomas: That’s the new [Laughs] I’m gonna Thomas’ Second Chance it and then I’m gonna give my answer and then I’m gonna flip a coin, see what the coin said.
Thomas: Just by doing this, the coin will then cosmically become smarter than me. It’s a really weird mystical thing. Alright, let’s do it. Pork the streak, here we go. The coin.
Andrew: Okay. I’m excited for this. Thomas – and you got, off to a great footing here, constitutional law question.
Thomas: Oh, I’m gonna ask the coin. [Laughs] I don’t know how well the coin has studied that, we’ll see.
Andrew: [Laughs] A state law prohibits any barbershop licensed by the state from displaying posters in support of any current candidate for public office-
Andrew: -or displaying or distributing any campaign literature in support of such a candidate.
Andrew: No other kinds of posters or literature are subject to this prohibition, nor are any other types of commercial establishments-
Thomas: Oddly specific law.
Andrew: – in the state, yeah, subject to similar prohibitions. Is this law constitutional?
Andrew: (A) No, because it treats barbershops differently from other commercial establishments.
Andrew: (B) No, because it imposes a restriction on the content or subject matter of speech in the absence of any evidence that such a restriction is necessary to serve a compelling state interest.
Thomas: That’s definitely one of the answers.
Andrew: (C) Yes, because it leaves political candidates free to communicate their campaign messages to voters by other means.
Andrew: Or (D) Yes, because the operation of a licensed barbershop is a privilege and therefore is subject to any reasonable restriction imposed by the state.
Thomas: Wow. So, a State law prohibits any barbershop – so just a barbershop. This is very, like, COVID-related almost, too. I feel like that law – good thing they didn’t restrict a church from doing anything because the answer would be no, the court will never let you restrict a church from doing anything. Anyway, barbershop says you can’t display posters in support of any current candidate. That strikes me as very restrictive. That seems not constitutional. So, I’m very much leaning toward “no” answers. A, no because it treats barbershops differently from other commercial establishments. That’s – yeah, maybe. Maybe that’s the “no” answer.
B, no because it imposes a restriction on the content or subject matter of speech in the absence of any evidence that such a restriction is necessary to serve a compelling state interest. A compelling state interest. I mean that all sounds right to me, but is this gonna be another case of which of the “no” answers is like more right, or right better, or right first. Whatever. Me and the coin will have to battle that out. It’s gonna take a lot of convincing for me to think this is a “yes” answer. Like yes you can do this? Let’s see, we’ll go through C and D.
Yes because it leaves political candidates free to communicate their campaign messages to voters by other means. That’s sort of taking the candidates are the only ones at stake? It’s not talking about the barbershop, the free speech of the business owner, so I don’t really think that could be right. It’d be weird to be like no, the barbershop owner has no say, the question is just about whether or not the candidates can communicate their campaign messages somewhere else? That can’t be right.
D, yes because the operation of a licensed barbershop is a privilege and therefore is subject to any reasonable restriction imposed by the state. That’s closer to a possible answer. That is how we do some stuff. It’s like federal funded colleges, they’re able to enforce Title IX and whatever, that kind of stuff, but this is not a reasonable restriction. This feels like a – this feels like D would be true if it was some more reasonable thing that didn’t involve free speech, if it was some actual restriction then D could be right, but I’m solidly eliminating C and D. I don’t know how you could say that this is a reasonable restriction, that makes no sense.
Between A and B, let’s see what I choose and then we’ll see what the coin chooses. [Laughs] So which’ll come into play first? Is it that the barbershop is getting treated differently? Or is it that this is just a BS thing. I think the way I’m gonna try to answer this is to say – like if the law prevented just all establishments from posting this kind of stuff, even though it’s licensed by the state, so everything that was licensed by the state, that still doesn’t seem like it would be cool. I’m gonna go with B because I do think it’s more about imposing a restriction on the content or subject matter of speech in the absence of any evidence that such a restriction is necessary to serve a compelling state interest. Seems straightforward to me, I think it’s straightforwardly B. So let’s see if I can beat the coin.
Andrew: Okay, what does the coin pick?
Thomas: Yeah, you didn’t care what I have to say, you just want to know what the coin says. Alright, I will note that I don’t have a coin, so I’m flipping a pick. We can call this the pick of destiny. I’m flipping the pick of destiny here. A is the Fender side, is A, and the other side is B. Okay, here we go. Ready? Did I get it right, did I get it right? It’s A. So it says A. Oh! I’m gonna beat the coin! This coin can’t be right. So the coin says A, I say B, final answer.
Andrew: Alright and if you’d like to play against Thomas and the coin [Laughs] you know how to do that.
Thomas: Well you can’t beat Thomas and the coin. That’s an unstoppable team.
Thomas: The best you can do is beat one of us.
Andrew: Well, you could pick C or D and one of those could be correct.
Andrew: But in any event, whatever the permutations are, you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, include your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: That’s our show, Andrew, what a fun math breakdown. I may actually go make this spreadsheet, I’m not even joking. I might do it.
Thomas: Because I want to see how if you change that average how that changes everything. We’ll see. If I make it look out in the Facebook group, I suspect would be where I would post that. That’s our show, we’ll see you next time!