Advisory Opinions - Voir Dire

Episode Date: February 14, 2020

David and Sarah take on the whirlwind of news surrounding the Roger Stone case, go behind the scenes of opposition research, and share their thoughts on the Netflix docuseries "Cheer." Learn more about your ad choices. Visit megaphone.fm/adchoices

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Broad-spectrum protection and all-day hydration in one lightweight formula from the number one recommended brand by pharmacists and physicians. It's the unskippable SPF for your unstoppable day. New Umbrelle Daily UV Moisturizer. Now available online or at your local retailer. Welcome to a second Advisory Opinions podcast of the week, operating under the principle of you got to give the people what they want. The people want a second podcast in the week. And so here we are.

And it's a particularly timely podcast because for those of you who care about the law, who care about the powers of the presidency, who care about campaigns, what a week it's been. who care about the powers of the presidency, who care about campaigns, what a week it's been. But before we dive into our three main topics today, which are going to be Roger Stone, the dark arts of opposition research, and the Netflix series Cheer, I bet you didn't see that one coming, I'm going to remind you again that the paywall is coming. So last week or earlier this week, Sarah did not like my comparison of calling it like an iron curtain descending across the Internet. How about like the black gate of Mordor slamming shut? Oh, God. The paywall is coming. I thought you were going to go with winter is coming. That I'm down with. No, I actually went and I reminded myself of what was the name of the Black Gate of Mordor.

Do you remember what it is in Sundaran, the Elven language? You're joking, right? I would not joke about such things. Definitely not. A thousand times don't. It is Morannon. Morannon is the't. It is Moranon. Moranon is the name of the Black Gate of Mordor. So anyway, that's a long way of saying the paywall is coming at The Dispatch. So we would love it if you would subscribe thedispatch.com. We would

also love it if you subscribe to this podcast on Apple Podcasts or wherever you get your podcasts. And also, we'd love it if you rate us. Your feedback has been very, very helpful. So time to dive in. We've got a couple of emerging legal issues surrounding Roger Stone. And Sarah, this is an interesting one. It has it had the president tweeted this morning that one of the jurors, in fact, the jury jury for person appears to have been, in his view, biased against him. Her name is Tamika Hart. She outed herself on a Facebook post defending the four prosecutors who withdrew from the case, one of whom resigned entirely from the DOJ. And then that caused people to do, of course, start combing through her social media. And they found out that she's a Democrat. She's a former Democratic congressional candidate. She's a donor to Democratic campaigns and has tweeted a few times against Donald Trump and tweeted about the Mueller investigation. And so. Scandal, does that seem like a scandal? Your first blush and

then I'll I'll follow up. So I saw this percolating on conservative Twitter yesterday afternoon a bit because they were trying to find some way to wade into the Roger Stone mess and defend the president on this. And my first thought was, that's a defense attorney's job. That's why you hire a good defense attorney. Not even a good one, a mediocre defense attorney, because this is the voir dire process, or as we say in Texas, voir dire.

Well, that's right. And now what's interesting to me is, so here's the claim that this person snuck, essentially the claim is this person snuck onto the jury. But I've been doing a lot of due diligence today, and I've gone back and I've read a lot of documents. And I've read a couple of documents. One was the court decision by the trial judge in the case denying a motion for a new trial on the basis of bias of a different juror. And what I found when I was reading through that, it found that the trial court struck a total of 40 prospective jurors for cause. So in other words, Roger Stone's defense attorneys were at least reasonably diligent in trying to strike jurors for cause. So then that got to be my next question. My next question is, did they try to strike this juror? And what did they know about her when during, can I say it like you say it, voir dire? That was perfect.

I also, though, would, it's worth noting, D.C. is a 90 plus Democratic district. The District of Columbia is highly, highly Democratic voters. So most, not just most, the overwhelming majority of potential is highly, highly Democratic voters. So most, not just most, the overwhelming majority of potential jurors will be registered Democrats. Even Republicans in D.C. are registered Democrats usually because it is the only way to influence the general election, because that's the primary election here. I'm very glad you brought that up because that's absolutely a material fact here that brings us. Yeah. So being a registered Democrat is not going to be something you could really strike for cause here. Correct.

But some of the other things you said were maybe more borderline. Yeah, correct. So a Republican does not have a constitutional right to be tried only to have a jury comprised of independents and Republicans. And Democrats don't have a constitutional right to have a jury consisting only of independents and Democrats. I mean, I've tried a very contentious, the last trial I tried in my career was a very contentious political case where the jury, my best guess is it was majority partisan Democrat. And my client was a very outspoken conservative columnist. So this is just life. You try your case in front of people who have different political views from you all of the time. But here's the legal standard. So if WARDAR is insufficient, sometimes you can get a new trial. And the Supreme Court, unsurprisingly, has opined about this.

And it's held. And I'm going to read a quote from a case called McDonough Power Equipment versus Greenwood from all the way back in 1984. Back in the days when I was a dungeon master, it says, we hold that to obtain a new trial in such a situation where there's an allegation of dishonesty in a voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause. And so, in other words, it's not just that there was something wrong or inaccurate about the voir dire. It had to be inaccurate in a particular way, provided a valid basis for challenge for cause. This is similar to other parts of criminal law where not only does there have to be a trial transcripts since time immemorial, a trial is not required to be perfect. And most of them are not. All of them are not. And also striking jurors for cause is a matter committed to the trial court's discretion. So it's a pretty high bar to overturn that. So fortunately, there's actually a transcript of the oral voir dire in this case

of the juror. And did anyone on this podcast go and find it, David? I did. I went and I found it. And the juror is identified as juror 1261 in the transcript. We feel pretty confident it's Tamika Hart because remember that Tamika Hart ran for Congress? Yeah. Well, guess what this juror says? Here's a question. I ran for Congress. Here's a question from opposing counsel.

Did you ever work for anyone in Congress? Perspective juror. No. You've worked on campaigns for Congress, people running for Congress. Juror. I ran for Congress. There we go. Question. You ran for Congress? I worked on my own campaign. Do you have any political aspirations now? I don't know. Not federal. What might they be? My home state in Tennessee. No local. Then he falls up. He says the fact that you run for an office, you're affiliated with a political party. Roger Stone is affiliated with the Republican Party. Donald Trump. You understand what I'm saying and getting at. So we're kind of specific, aren't we here? what I'm saying and getting at. So we're kind of specific, aren't we here? I do. How do you feel about that? Here's the prosecution objects. Because why would the prosecution object? Because you can't have a political, flat out political litmus test. Litmus test. Yeah, yeah. Right. Right. So here's the court. Can you make that question a little more crisp?

Perfect. Don't you love judges? Is there anything about his affiliation with the Trump campaign and the Republican Party, his being Roger Stone in general, that gives you any reason to pause or hesitate or think you couldn't fairly evaluate the evidence against him? This is a way of saying, are you politically biased? Perspective juror? No. This is a way of saying, are you politically biased? Prospective juror, no. OK. Now, I do think it's worth underlining the phrasing of that last question because it is the standard for all jurors. Everyone has biases. Everyone has things that cause them one way or the other, especially with famous defendants, O. or otherwise. And the question is, can you evaluate the facts and the law

impartially and set aside whatever these things are about yourself? And if a juror says yes to that, normally a judge will believe them. Correct. Correct. And actually, the judge, prior to the questioning by defense counsel asked questions because apparently in the written questionnaire, there was a written voir dire questionnaire. I keep being tempted to constantly say voir dire, but in the written... It's fun. Try it at home. Written voir dire. The court, here's the court. You've also indicated a fair amount of paying attention in news and social media, including about political things. Yes. And when we asked what you read or heard about the defendant, you do understand that he was involved in Mr. Trump's campaign in some way. Yes.

Then here's the question. Is there anything about that that affects your ability to judge him fairly and impartially? Absolutely not. So then she asked, what have you heard about Stone? Absolutely not. So then she asked, what have you heard about Stone? Nothing I can recall specifically. I do watch sometimes, paying attention, but sometimes in the background, CNN. So I recall hearing about him being part of the campaign and some belief or reporting around interaction with the Russian probe and interaction with him and people in the country. But I don't have a whole lot of details. I don't pay that close attention or watch C-SPAN.

I don't have a whole lot of details. I don't pay that close attention or watch C-SPAN. Then she says, can you wipe that slate clean and learn only what you need to learn in this case from the evidence presented in the courtroom and no other source? Perspective juror, yes. Now, I don't want to get ahead of where I think you're going, David, but there is going to be a difference here between striking someone for cause. Correct. For instance, if she had said, no, I think Roger Stone is a POS and, you know, that he is Russian and is part of some drug trafficking ring, then you can strike her for cause.

But she could say all the right answers to these things. Right. But still be someone who you do not believe is telling the truth or someone who seems too eager to get on this jury. And the defense counsel has another option. Correct. The peremptory challenge. And in federal non-capital cases, a defense gets 10. So you can strike 10 just because you don't like the way their hair looks. Now, that's literally one of the cases is based like one of the test cases on peremptory challenges was based on hair, actually. So that's why you said

that. I did not know that. Yeah. Whether hair was a stand in for race. Oh, fascinating. OK, because you cannot strike for race, but you can strike for almost any other reason. And so you have and certainly if you do not believe someone when they say they can be impartial. Right. Exactly. Exactly. That's well established. So anyway, now I have read to you the core substance of the claims against a core substance of the Q&A. So here's here's my question for you. You're Roger Stone's defense lawyer. The court is now going to ask you a question. Ms. Isger, do you have a motion? And in this case, I'm guessing they did not. They did not. They did not make... Now, we're putting this in a vacuum of just this one jury, both her written questionnaire and her oral back and forth.

If I'm the defense and I know I've only got these, there could be other jurors, for instance, who were far more egregious, less believable when they said they could be impartial. So I can't strike them for cause, but I know I'm going to have to use one of my peremptories on, you know, someone who changed their middle name to I hate Roger Stone, but says they could be impartial. Has a tattoo, you know, of Hillary Clinton on their forehead and is like, no, no, I can totally judge this fairly. Right. So, you know, we can blame the defense counsel for not using one of their peremptories, but presumably they did use all 10. Do you know that? I don't know that. I don't know that. I didn't go through all of the. I can't imagine that they didn't. I can't imagine because they did get 40 struck for cause. Yeah. Yeah. They weren't sleeping. They were not. Which also happens

in trials. They weren't. It does happen sometimes. They were not asleep. And what's interesting. So, It does happen sometimes. They were not asleep. And what's interesting, so, you know, a good, diligent podcaster will go on and read further in the transcript to see how they responded to other jurors and what were some of the other bases that they used for cause. Ooh. Would that good podcaster have found? promised to be impartial, but would strike on the basis that they paused for too long or their demeanor was inappropriate in responding to the question. And guess what? The judge granted. Striking for cause. Striking for cause. So not one of their 10. Yeah. Not one of their peremptory. If their demeanor was off. So it wasn't just for cause when they said, yeah, Roger Stone is worst. I can't wait to send him up the river. There was subjective reasons. And so they like, can you be impartial? Yeah, exactly. That will show up in the transcript as yeah. But true. In the courtroom, you'd be like,

yeah, that's not no, we're not doing that. Yeah. And court reporters don't put in things like long pause. A parent looked. Yeah. Look to the side. A parent soul searching in process. So now here is the case that she was the best case. We now know that she was misleading in the answers that I've told you. So she has a Twitter account.

is misleading in the answers that I've told you. So she has a Twitter account. And in that Twitter account, she has tweeted more than 13,000 times. OK, maybe on the high end, but not unheard of. A little bit on the high end. So there are about six tweets in the 13,000 where she tweets retweeting articles about the Mueller investigation. Most of them are. When? What's the timeline? 2017. So pretrial. Yeah. Two years pretrial. More than two years pretrial. And at least one tweet indicating that she did what that she had watched C-SPAN. OK. C-SPAN. Got it. Yeah. So my assertion, and I want to hear what Judge Isger thinks, is that short of more than that, that is thin gruel, especially compared to saying that she ran for freaking Congress and had admitted to paying attention to the news closely and knew who Roger Stone was. That's thin gruel to say that there was a material omission.

What say you, Judge Isker? Well, I think we also should back up a second. I'm not totally clear why anyone is relitigating the trial at this point and the guilt and innocence, because that's actually not what the news is about this week, which is about his sentence. in innocence because that's actually not what the news is about this week, which is about his sentence. Whether seven to nine years is a reasonable sentence for what he was convicted of is a very different question than whether a single juror on the jury would have, you know, if we had switched her out for someone else, would have also voted to convict as every other juror on that jury must have done because it had to be a unanimous

verdict. Right. Right. Exactly. Exactly. So I'm going to I'm going to interpret that response as motion denied. There's a reason that we don't relitigate all of these small decisions as being ineffective assistance of counsel. There's no question that he had effective counsel. Councils can have different trial strategies. They can certainly have different thoughts and feelings about who's a good juror, a bad juror, etc. It'd be one thing if there was a fight raised in the transcript about striking her for cause and they'd lost that fight. Even then, my sympathies would be quite limited.

But the fact that whatever their strategy was did not include striking her for cause makes us reviewing this, or anyone else for that matter, a very silly exercise. Silly though fascinating. David, you are able to make anything fascinating and I, I, I've enjoyed it, the conversation, but I do think it's just worth the big picture. Look at, you know, this is one out of 12, 11 other people found him guilty. She wasn't even, they didn't even attempt

to strike her for cause. They didn't use one of their peremptories. There were many options they had here. I don't, do you know how cranberries are harvested? I've forgotten. So there's that basically you put the cranberries down the chute and there's little slats in the chute and the cranberry has to bounce out of the chute by hitting one of the slats. But it's not that it only has one chance to hit a slat and bounce. It has several chances down the chute to hit a slat and bounce out. I use this a lot in life. Like you had several slats to hit and bounce and you just didn't. Right.

So you're a bad cranberry. Like you're out. You're not going into my cranberry sauce and you're not making it on the Thanksgiving table. I like it. I like it. No, I had no idea about how cranberries were harvested. And I would imagine maybe 10 or 20 percent of our listeners didn't either. So. Oh, I bet I'm going to get lots of corrections on this. Well, Sarah, the slats are actually made of and I appreciate them and don't already. We talked a lot about the real scandal or the real question that first exercised the president because this latest juror issue

exercised the president pretty vigorously this morning. But the latest was the prosecutors who were recommending seven to nine years in prison for Roger Stone, I don't think we need to repeat that whole thing. But I think that let's just make this super simple and we'll get Judge Isger back on the bench. So Judge Isger, is it unreasonable for the prosecutors to ask for a significant enhancement of the sentence on the basis that not only was Roger Stone found guilty of lying to Congress and attempted witness tampering, but he appears to have physically threatened a witness, the liberal comedian Randy Credico. And here's the key quote. I'm going to read it to you with a bleep.

So he emails Randy Credico and he says, you are a rat. At what point? When does he send the email? April 9th, 2018. So this is in the middle of the Mueller investigation. The question is, is Credico going to be testifying in the course of this investigation, testifying to Congress or providing testimony. I can't remember if it's Congress or Mueller, but what's he going to say about Roger Stone's efforts to reach out to WikiLeaks? Right. And it looks as if Credico is going to spill the good. He's going to sing. He's going to sing like a canary. And so here is what Roger Stone says. Sing like a canary.

And so here is what Roger Stone says. You are a rat, a stoolie. You backstab your friends, run your mouth. My lawyers are dying to rip you to shreds. Stone then says, I will take that dog away from you. Referring to his dog, a therapy dog named Bianca. Bianca. Yes.

And by the way, listeners, if you do have your phone handy, just go ahead and Google Bianca the therapy dog. You won't be disappointed. It's a cute dog. It's a very cute dog. It's an absurd dog. To call it a dog is, you know, it's insulting to some dogs. It's a cute small dog. Now, we have a very large dog named Boo who could eat Bianca and with one gulp.

And still be hungry. Yes, but he's a very nice dog. He wouldn't do that. He says, I'm going to take that dog away from you. And then he also wrote on or about the same day. I am so ready. Let's get it on. Prepare to die. And then I won't use the expletive. And wait, there's something else important about this, David, which is Randy Credico was asked about this. Yes, that's the next thing. OK, please, please. So in court, Randy Credico says, I did not take that literally. He didn't take it seriously that that Stone was literally going to hurt his dog, take his dog or kill him.

So that's a very important fact. It is an important fact because what the prosecutors did in their sentencing enhancement, and there were other enhancements, but this is the eight point enhancement that's the largest one. They only took the threats seriously. They did not take Randy Credico disavowing the seriousness with which he took the threat seriously. And so he gets the full enhancement for threatening a federal witness. Right. I think that most people who would review Roger Stone's case, most, you know, walk on the street, tell them about it, think that seven to nine years would be a very long time. Right.

But here's a very relevant fact to all of this. While the Department of Justice sentencing memo is a delightful read, good times, the Department of Justice does not get to decide how long Roger Stone goes to jail. Judge Amy Jackson Berman decides that. Amy Berman Jackson. Did I just flip that? Well, if you either way you said it, one of them is correct. One of them is correct. So the point being that we're arguing a lot about how DOJ calculated the sentence, what they put in their sentencing memo the first time, the second time. And we can go around and around about that. But at the end of

the day, a judge will decide his sentence. I find it, even if they had kept with the seven to nine year recommendation, I do not think she would have given him seven to nine years. I think three to four is more likely regardless. And I don't think that their departure away from that sentencing recommendation will have a great effect on it either. Right. So it actually goes more to the credibility of the Department of Justice and of the president's influence over the department. That remains a very valid concern. It is not that interesting as to how much time Roger Stone will actually spend in jail.

See, Sarah, you keep pulling me away from the minutia. But you know what? You go into that minutia. I love it. Well, this is how I ended that portion. I dealt with this in my newsletter, and this is how I ended that portion. It's worth noting prosecutors do not decide the sentence. Stone's lawyers have the opportunity to contest the sentencing recommendation and the judge makes the ultimate decision. Trump was angry at a potential injustice, not an actual injustice. And his Twitter explosion created the impression that he was treating Stone to a friends and family criminal discount. And look, Judge Amy Berman Jackson, I have Googled that.

and look judge amy burman jackson i have googled that uh there are other things in this trial that have been bad for roger stone there was a gag order on him that he violated and the way in which he violated was to put a picture of the judge with crosshairs over her face on his, I believe, Instagram feed. So that's not like the most endearing thing I've heard a defendant do for a judge. Only maybe the third or fourth most most endearing. Right. So but that doesn't make this conversation about the sentencing memo irrelevant by any stretch.

Correct. It just makes it, to me, irrelevant to Roger Stone's sentence, which frankly, I don't care that much about anyway. I'm going to get angry emails. So let me, let's wrap up our legal discussion with one last one. Okay. And one last, we'll just dip our toes into the minutiae. OK. Love it. And this is Alexander Vindman. Part of this is very legally clear. And that is that Trump absolutely can fire him from being a National Security Council aide. And wait, I just have one quick thing on this, because it's similar to the slight temper tantrum I threw yesterday about saying that the four AUSAs had resigned when only one of them had left their job with the Department of Justice. The other three had simply left the case. He was not fired from government service. He was removed from his position on the National Security Council, And now his duty station is to report to the Pentagon. Right.

Exactly. So he is there. There's some minutia for you. Ha. No, that's good. That's excellent. I love it. I can marinate in minutia.

So he was removed from the National Security Council, but he's not been fired from the military. He's not been relieved of his rank. He has not faced military punishment. fired from the military. He's not been relieved of his rank. He has not faced military punishment. And Trump, which is Trump's prerogative, he can do that. Now, I also happen to believe that sort of perp walking him out was excessive. Tweeting vicious insults at him, again, excessive. But then here's one where I felt like it pricked my legal antenna. So Trump says said that suggested that Vindman should face military discipline and here's the quote from Trump. We sent him on his way to a much different location and the military can handle him any way

they want. Asked if he was suggesting that Vindman place face disciplinary action Trump said that would be up to the military. If you look at what happened, they're going to certainly, I would imagine, take a look at that. Now, there's this interesting, now he's skating here. He's got some caveat language, but that they're going to certainly take a look. They were certainly, I would imagine, take a look is very interesting because federal law, a statute, an actual statute passed by Congress, prohibits military commanders from engaging in something called unlawful command influence. And here's the actual words. No person subject to this chapter may attempt to coerce or by any unauthorized means influence the actions of a court-martial

or any other military tribunal or any member thereof in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to his judicial acts. Cutting through sort of the military legalese, a commander at a certain level is a convening authority of a court-martial. In other words, or an approving authority or a reviewing authority. So that's an action directed at military commanders. So for example, when I was in Iraq, it would have been considered unlawful command influence. If the regimental commander told a squadron commander, which is beneath the regimental commander, I want you to execute an Article 15, which is a nonjudicial punishment aspect of military justice, on private

snuffy for accidental discharges of his M4. He could set a general policy that says all accidental discharges will result in nonjudicial punishment, but he cannot dive in and say, you must do this kind of punishment for this soldier. And interestingly enough, Trump has been accused of unlawful command influence before. He basically called for the head of Bo Bergdahl. And the military court of appeals found two to one that that did not constitute unlawful command influence, not because the president couldn't do that, not because the president couldn't be guilty of unlawful command influence, but because they didn't find sufficient evidence that the president's statements about Bergdahl had an impact on the case. Now, I do remember this and I remember that outcome.

I do not remember, though, in the opinion, whether they find that he can't have rather whether they are able to reach that question or because they found that he did not have influence. Therefore, they don't need to reach the question of whether that's a good distinction. That's a good distinction. I don't recall the answer to that off the top of my head. There is usually in courts a thing called avoidance doctrine, where you try to decide the smaller issue before deciding the larger issue. Most of the time it's called constitutional avoidance. You try to decide it on the facts before you decide whether something is unconstitutional,

for instance, because that's such a large thing to decide. And in this case, to decide whether the president can have unlawful command influence would basically be to decide whether Congress has the authority to limit his command of the armed forces. This goes back to a discussion you and I have, we've trotted around the pond on a few times, which is the unitary executive theory and just how far that theory can stretch. Yeah. And it raises an interesting question because the UCI, that's the, I'm going to lapse into my military acronym speak for a minute. Everything's an acronym in the military. But UCI unquestionably applies to the subordinate to Trump's subordinate commanders. So the question would be, if I'm if I'm TDS, trial defense service, which is not Trump derangement syndrome, TDS, the other TDS, trial defense service. other TDS. Trial defense service. If I am TDS and I'm going to and I see a senior commander in uniform responding to a Trump directive by himself making a directive to launch an investigation and

initiate punishment, I'm actually going to bring my UCI claim against that commander. Correct. And there's no question that that will apply. And he can't say the president ordered me to violate the UCMJ, and therefore I'm going to violate the UCMJ. That will not help him in that circumstance. That would be deemed to be an unlawful order, that he received an unlawful order. unlawful order. Okay. To a point. Yeah. So this is where I think that the unitary, now the unitary executive position I think would be, well, no, that's a lawful order because the president ultimately is an absolute authority here in this congressional statute inappropriately limits. Right. The statute itself is unconstitutional because it intrudes on the prerogatives of Article II powers.

But holy smokes, I cannot see the Supreme Court of the United States ruling the UCMJ unconstitutional or a material aspect of the UCMJ unconstitutional. Whoa. Whoa. Whoa. That would mean the— As Keanu Reeves would say. Dude. It would be like, dude, are you telling me the president has absolute authority to commit war crimes? Maybe. Well, I don't think so. But we'll table that for another time. Enough minutia. Have we covered all this

sufficiently? Yeah, let's go to dark arts. Yes. Well, you know, completely changing gears. Only kind of. And moving into the political world, well, a different aspect of it. There was an unbelievable

oppo hit dumped on Mike Bloomberg this week as he surged in the polls. Yeah, several. Several. I mean, just to quote aliens, he was nuked from orbit. I have some of the headlines here. Can I read them to you? Oh, please.

The notorious Michael R. Bloomberg sub-headline, his racist stop-and-frisk policy as New York mayor can't be forgotten, from the New York Times. Bloomberg once blamed end of redlining for 2008 collapse from the AP. This is referring to landlords and homeowners refusing to rent to someone because of race or some other prohibited thing that that caused when they got rid of redlining so therefore you had to do that like let these people buy houses who you had been unlawfully prevented from buying houses

that that caused the 2008 economic collapse uh here's another one mike bloomberg and newly surfaced 2015 remarks compares putin's attacks on ukraine to u.s annexing of california quote what would america do if we had a continuous country i think he contiguous uh and a lot of people in that country wanted to be Americans. Does California ring a bell? We just went and took it. Oh, my. And then Michael Bloomberg quietly rejoined clubs that largely exclude women, comma, minorities.

So I have this vision in my mind of, let's just forget aliens, because they didn't actually nuke it from orbit, which was a problem. They should have done it. But then it had been a shorter movie. I am picturing Star Wars. And when the Death Star fires on Alderaan and you just see all these guys in masks and, you know, you hear that laser powering up.

And fortunately here, we have in on this podcast a gunner on the Death Star. Oh, oh, oh my. A professor of the dark arts of Oppo Research. And we thought it would be fun to lift the curtain here a little bit and talk about how does this happen? So, first of all, let's break it up into its component parts. In a large campaign operation, there is a research department, there is a communications department, and there is normally a rapid response director with maybe one or two staffers as well. They are all sort of under the umbrella of either the communications director or a deputy campaign manager who puts it under an umbrella, and they work all together to maneuver the Death Star, if you will. So I do think that's relevant because most people only hear about the comms department because they're the forward facing one. Right. But the research department is charged

with putting together the book, quote unquote, on both the candidate that you work for and all of the opponents. That book gets handed off to the comms department, who then is putting a strategic plan together of how to sell those hits, when to sell those hits, etc. Separately, the rapid response director is sort of living in the news cycle. So if you see Ukraine in the news, you flip through the book and see that Michael Bloomberg has a Ukraine thing, get that out there right now, sell it now. Bloomberg has a Ukraine thing. Get that out there right now. Sell it now. Maybe Amy Klobuchar does too great. Sell that.

And so you're selling sort of cheaper hits, let's call it, quicker ones. And the communications department is selling bigger ones. They may be working on the ad about it, you know, where that dark voice goes, Michael Bloomberg rejoined a club that excludes women. That doesn't sound like a very dark voice. Sorry. How about Michael Bloomberg? Excluding women? Better. Much better.

So, okay. So let's dive into the research department and how they're putting together the book. I think because of Hollywood and some good movies that I've enjoyed, there's a misperception on what the life of a researcher is like, that like they're following Gary Hart around and just waiting for him to get on that boat. What was the boat's name is awesome. Monkey Business. Yeah. Dear candidates, if you're getting on a boat named Monkey Business with women, not your wife, this isn't going to end well for your presidential campaign.

Well, at least in 1984. Now all bets are off. So that would be a really uninteresting thing to a researcher because it's very factually hard to prove. The citation would be weak for it. It would be like, well, I saw him. There's just not enough people doing this where you can send them out with cameras. A researcher's job is to sit there and get documents. It's like very in-depth Google monkeys.

Gotcha. But they may go out to a courthouse to look at deeds. I have been to plenty of property properties looking at whether they actually are the thing they said they are. If a candidate owns a business and the business owns a lot of properties in like sort of odd places or I'm not quite sure what those are, then I get in the car and I go drive by those. Fine. Let's make sure they're not slum lord type stuff that's renting out. Or I don't know, just who knows what you could find. 99% of everything I did was a dead end. But all it takes is one. Yes. Right. So you're looking for that one and you've got to be the

type of person and the type of personality who enjoys that. Think of like a bomb sniffing dog who, you know, is rarely ever going to find the bomb. But man, when they do, they're pumped. So you're amassing. So you're sitting there, you're amassing a large amount of information. And so that's the input. And then you're then you have a decision, when do we unleash? And you're not necessarily unleashing it every single time. As you get it, you might be. Rarely. Rarely.

So you're storing it up and you're deciding when you're going to unleash it. Yeah. And I think another misperception is this idea that you save it for the, quote, October surprise. Right. That would almost always be malpractice. Now, there's like reasons now what it would be extra malpractice, which is early voting. But, okay, fine.

I actually mean it would be malpractice to wait for a September surprise. Like, just to do it just pre-early voting is a mistake. Right. Because we have such ubiquitous media, high partisanship, you want to help define your opponent's narrative, who voters think they are. Once that narrative has been set, the level of nuclear weapon you would need to dislodge that narrative is just so much higher come September than it is right now. So as Michael Bloomberg is picking up steam, you want to define him now. And that's what we're seeing happening now because he got into the race late.

They probably were putting the book together quite late compared to some of the other opponents that, you know, you could have had a book on Biden years ago. Right now, let me so let me ask you this. So I on the media end, because I have had people try to send me oppo. And almost every time I've said, do better, because it's just rumors. People in 2016, there were people who floated aspects of the Steele dossier to me. And I was thoroughly unimpressed, just thoroughly unimpressed. I would argue to you that that's not oppo. Right. That was... If it doesn't have a citation, people were just sending you... Rumors. S-H-I-T. Yes. See, you're rubbing off on me, David. David knows that I would, without blinking, say that word.

But now he's made me better. Well, I would say I would agree with you completely. It was BS. It was total BS. And your people, but you get flung a lot of rumors. You get flung a lot of rumors. Yeah. So no one is going to run with rumors that's credible. And for you, for your campaign, that's credible. And for you, for your campaign, what you want is the credibility of someone running it. Now, this all came up because of the McKay-Coppins piece that was run last week. That's how you and I got into this conversation, if I remember correctly, which is this idea that both sides, although McKay's writing about the Republican side, but I assure you it is ubiquitous, Both sides, although McKay's writing about the Republican side, but I assure you it is ubiquitous.

The standard for what that citation needs to be has fallen so far that, in fact, in your FEC reports, all you have to do is pay a consultant. It'll show up as, you know, Consultants for America. That consultant is then paying some subcontractors, one of whom will be running a business where they have sort of fake news sites throughout the country, but they're not fake. That's the thing. They're like real, but they're paid for. Right. They just don't have a disclaimer that like they accepted money from the campaign to run this news article about an opponent. Right. But they're real news sites. And so to call it it's not fake news. They're not deep fakes. It's something else. It's corrosive to journalism and it is corrosive to the credibility of a free media, but it's not fake news. So because of that, that's like changed the game because now I don't need to pitch it to the New York Times to have just a link from the Detroit Wind Press.

Yes. To put that in my ad to run in Michigan. The Detroit Wind Press says Michael Bloomberg is a real SOB. Great. But before you would have needed The New York Times or the Detroit Free Press and you would have really had to pitch a reporter on that and sell them. And that's what the comms team's job was to do with that book. The second thing is that Trump has changed the game. It was also very important pre-Trump that your candidate not be the one oppo-ing, like debuting the opposition research on the debate stage, for instance. You want them to say, according to the New York Times,

you cheated on your taxes. Not, I have, you cheated on your taxes, not I have proof you cheated on your taxes because I've been looking through your financial records. Right. Trump has blown that up. He has no problem attacking one on one his opponent. Remember when they started the disclaimers for ads where you had to have, you know, I'm David French and I approve this message. And the, you know, shibboleth within the political community was, if it's a positive ad, you do that at the end. David French loves sunshine and puppies. And at the end it says, I'm David French and I approve this ad.

If it's a negative ad, you start with the disclaimer so that after they then hear all the bad stuff, they're not reminded about you. So, I'm David French and I approve this ad. Michael Bloomberg hates puppies. And then it goes on from there. Well, Donald Trump doesn't care if you know that it's from him. He wants you to know it's from him. And so it's changed the oppo game. It's interesting. It's interesting to watch. Well, he'll oppo, let's just say from earlier in this pod, a lieutenant colonel in the army. He'll oppo a juror. He'll oppo line prosecutors in his own DOJ. Yeah. Yeah. Yeah. No, it's a gold star mom. Remember the

gold star father? He'll oppo a gold star father. Absolutely. Yeah. So that makes a difference. But I, you know, the world of opposition research is not as dark arts as people think it is. But the world of opposition research is not as dark arts as people think it is. It's a fun job. A lot of lawyers do it as sort of a side thing because it's a very legally job. I think some of the favorite parts for me were looking at voting records where no matter which way the opponent voted, I could write an ad on it. Oh, interesting. Interesting. And I would go through hundreds and hundreds of votes and just build these great voting record books, you know, showing what a what a horrible creature you were when, in fact, like I didn't really care how you voted, because either way you either, you know, voted against puppies or for drug dealers. Well, if you're voting for entitlements, you're voting for a deficit. If you're voting to cut entitlements, you're voting against senior. Yeah, it's done all the time. So I have to admit, though, that I think some people will be

a little bit disappointed that it's 99 percent Googling and 1 percent like courthouse visits. At no point did you have like meet an informant for a dead drop under a bridge in Budapest, even once? No, and there's some honor among thieves, right? Minor children are out of play. You don't go after an opponent's minor children. I was just wholly uninterested in my opponent's personal lives because I'm not sure that they're particularly effective hits anymore. The last one that was really effective was Jack Ryan in 2004, who was running against Barack Obama in Illinois. It came out publicly that his ex-wife had accused him of forcing her to have sex at sex clubs in Paris. And he dropped out of the race that then Alan Keyes filled in his spot.

Barack Obama wins in a landslide. He runs for president. The rest is history. That Jack Ryan stuff did not come from following him around or photographs. It came from his divorce records, which he had forgotten to see. Yes, yes. And another little piece of trivia, and correct me if I'm wrong, but I believe that his wife, Jerry Ryan, correct? Oh, God, yes. I'm so sorry to you listeners that here we go. Might be better known as Seven of Nine.

Yes, you're right. Can you be former Borg really completely? Should we deal with that on a podcast? Dear listeners, there's like 3% of this podcast where I don't know the words he's saying. I pretend that I do, but I don't. I don't know what any of that is. So anyway, this is Seven of Nine's ex-husband. And some percentage of listeners will appreciate that very much. And he was considered a rising star in Illinois.

He represented the Evanston District and North, which you were just at, talking at Northwestern. And I, of course, graduated from. And little known fun fact, for about two weeks, I worked on the Jack Ryan campaign the last two weeks. Oh, wow. Wow. Yeah, awkward. Oh, wow. Wow. Yeah. Awkward. And I was working on it because my professor, as part of our class assignment, we had to write a paper on a campaign that we were working on. And my professor was David Axelrod with special guest professor Rahm Emanuel. And remember, this is pre Obama. Well, I'm just going to repeat what I said maybe two or three podcasts ago. Sarah Isger knows everybody. And listeners, hopefully in the weeks and months to come, you'll be the beneficiary of that as we get everybody on this podcast.

Well, let's move on into the last topic, a little pop culture. And my good friend Greg Whiteley got to know him back years ago when he was following around the Romney campaign, which eventually turned into the Mint documentary, which is really, really good. It was on Netflix. I didn't realize he did both of these. Yes. He also did Last Chance U, which is an award-winning. OMG. Greg is the man.

If you're listening, Greg, you're the man. So anyway, he has a latest documentary that a lot of people are talking about and that you and I have both seen. And it's not typically my subject matter. Neither mine. So what Greg does, I watch and it's called Cheer and a ton of people are watching it on Netflix and talking about it. And you have thoughts, Sarah. So, OK, here's what's fun. So we do this third segment on culture stuff. And while David and I normally the other two segments come out of conversations that David and I have during the week, for whatever reason, this third culture segment, we actually usually don't talk about ahead of time. And so it is always a fun surprise to each of us what the other one actually has to say about it. So I am so curious what you have to say.

So I am good friends with two former collegiate cheerleaders. Oh. Full disclosure, I am whatever the opposite of a former collegiate cheerleader is i'm a former collegiate sleeper like i slept a lot in college and and ate french fries and read books um but but one of them was a uva cheerleader like a major uh you know division one team so i was scanning things to watch i was like hey is this any good they were like oh my god you have to watch this it's fascinating the story does not follow a d1 school it is following a community college that is um you know sort of the most winningest of the college

cheerleading champ national championship which is held, I believe, in Daytona Beach every year. And so it follows them through the year, last year, of them working up to this Daytona Beach championship, where you get two minutes and 15 seconds, I believe, to perform your routine, and that's it for the year. Right. Which, first of all, just seemed like, I don't know. There's something just heartbreaking about that. Oh, my gosh. So, and you follow these teammates and the coach. And there's a lot of different directions that I think Greg could have gone.

He chose an interesting one, which was to really concentrate on the personalities and the character of the people who do this. concentrate on the personalities and the character of the people who do this. There was far less about division within the team or the role of race or sexual orientation. You know, a number of the male cheerleaders were clearly gay and said that in the thing, but it didn't become a point of really dissension amongst the team or anything like that. Instead, it was on this extremely hard-driving coach who's female in a, I guess, very male-dominated profession of head collegiate sports, head collegiate cheerleading coaches are mostly men. And here she is, the best, and she's female.

Okay, so here are my, just concentrating on her for a second. There are two schools of thought of people who have seen this documentary. One is, she's a badass. clearly highlights a lot but doesn't discuss with his viewers are the health and wellness problems that are clear in what's happening. For instance, in one seven-minute segment we watch of a practice,

three of the women get concussions. The men are breaking bones and ankles and whatever. And basically, it's like, take a night off, get back on that pyramid. That's pretty interesting to me. I mean, you have a daughter who does cheerleading, in fact. And I am curious when you saw that, whether you would encourage, discourage, or remain neutral if your daughter tells you she wants to be a collegiate cheerleader. Well, A, I don't think that's in the cards because after her first season of cheerleading, she said, I think I'd rather play sports.

So, but when I saw that, I had a very similar feeling that I had when, so my son played football, high school football. I was just going to say there's something very reminiscent about football. And I had that exact same feeling of here these kids are laying their bodies on a line for the sport. And that is exactly one thing that really stands out here. When you're talking about high-end collegiate level competitive cheerleading, this is, it's a brutal, it's a brutal sport. And what Greg really does a good job of is if you look at it, if you zoom out and you're watching from the crowd perspective, say up in the stands, it's incredibly graceful, intricate, high energy. When you zoom in

and the camera is 15 feet away, it's, you feel like bones are crunching here. Yeah. When they catch the girls, I mean, they just, they're catching them the way they're supposed to. Like when it's working properly and their rib cages are just caught with arms every time. And they're talking about how bruised their ribs are. Right. After falling from a multi-story building basically into the arms of someone, like that's going to hurt. Yeah. And so my general bias is I am biased and I do not have a problem as a matter of principle with sports that require physical courage. So long as parents and students are going into this understanding the risks and are not under a state of deception about the risks. So my wife and I had a long talk about my son playing high school football, and we ultimately left the decision up to him.

And, of course, the second practice, his jaw is broken in two places, dislocated, and he had to have surgery. And I remember taking him to the ER and he could barely talk. And the first thing that he said when I picked him up was, Mom's going to be mad, isn't she? You have no idea. But I was very proud of him. He came out of the surgery and played that season. Oh, my God. And then had two more full seasons in high school football that he loved and were and

and in a lot of ways were really good for him. So. But here's an element of this that I found troubling in the documentary. And I'd be, again, curious on the high school football team if this played out. These students are at a community college, it's a two-year program um they are not getting paid for this obviously because they're student athletes there's the aspect of that they love it no doubt they love it but they also adore their coach yes and when she tells them to jump, they literally ask how high. And when she tells them to get back out there when they have a concussion, they don't blink. Of course they do it. Not because they're afraid of her, because they love her. They love her. Yep. And they want

to please her and they don't want to let her down. And they're teammates. There's a huge bond. And they're teammates for sure. But to put that decision about your long-term health and you know these kids just don't have the frontal lobes that full adults do they're they're and they're not kids they're adults but they're 18 19 20 year old adults uh and you're asking them to make a long-term health decision versus a short-term letting my coach down not a single one of them is ever going to pick the long-term health decision. And is it the coach's responsibility to keep some distance and not let them get so attached to her? Because some of these are kids with very incredibly heartbreaking home lives. Yes.

And she has become a surrogate parent. Yes. And that's one part of the documentary that was very successfully done was showing a lot of these kids. I mean, the community of the cheerleading community was a surrogate family for them and their actual family had been had fallen apart, had sometimes neglected them, had sometimes, you know, one guy, his mom had died. He was a son of you know, he came was raised by a single mom. His mom had died. He was taken in by a family that was involved in CHEER. So she is, she has got a responsibility of not just inspiring these kids to run through a wall for her on CHEER, but also she has a responsibility to safeguard that trust and to steward that trust. And when they leave in two years, are they going to go out and be the best that they can be beyond being a college athlete? And that's the question that I have for these football programs, these cheer programs. Their incentives are aligned to have the best collegiate program that they can have. That is not in line

with these kids' interests often. And I think one of the, and I haven't, I haven't gotten to the very end of the documentary, so I don't, I don't. Oh, I don't want to ruin it for you. No, don't do it. So I don't know if this is more fully explored, but, you know, the testimony of alumni here gets pretty important, I think. What's the, what's the legacy feeling? Is this where people feel like, wow, I was used?

Or do they feel like these were two of the greatest years of my life and they had a lifelong positive impact? And I think, again, the comparison to football is important. There's toxic leadership and people will run through the wall for bad people. And sometimes it takes years for them to realize that that's what happened and that they were essentially used. But often it happens that they do realize that. courage and that level of camaraderie and that level of self-sacrifice for a team is incredibly powerful, can be life-changing in all these really, really good ways, but you have to steward that. And it's often not obvious in the moment which is which. Well, I don't want to ruin where this is headed for you for the documentary, except to say that when they do get to Daytona, I mean, just like if you're someone who feels stress in their stomach. Right.

Like don't have a big meal before this. Well, and can I say one other thing about her that's interesting? So we haven't talked about that much about how much you follow college football, but. I do. I do follow it. Did she not remind you of Nick Saban? So I was actually very much thinking of that comparison during it. And to be honest, I was thinking of Tua during. Yeah. Oh, that's a great point. And and I really thought that after

Tua's season ending injury, that Congress and others would finally be moved to make sure that there was compensation for these students during their time at school. Yeah. And I am, of course, as usual, disappointed with Congress doing that. Yes. Well, and you and I are on the same page about compensation for athletes. We could have a whole discussion about that. Maybe we should – you know who has been on the forefront on that is Mitt. sports folks, you know, one of them went in and wanted to be pre-med and they were like, well, you can't because you can't have classes during the hours of 10 a.m. and 4 p.m.

It has to fit into this other thing. And like, well, that class isn't available. So you can't have that major. Yeah. They're not student athletes. They're athletes who are expected to kind of be students where it fits into the schedule. Yes. Athlete is first without question. I mean, without question. Yes. So the one last. They have to live in that dorm. They have to take those classes. They have you know, they have to have tutors, even if they're good students, et cetera. They are living a very different life than you and I let in or at least me than I let in college. Well, you know, one of the things that I think is and I will I can tell we could talk about this a long time, but we're running up against our time. This was really interesting to me.

So these guys and these girls adored that coach, adored that coach. But that coach did not exude charisma. She was very cool, very professional, obviously kind of kept some distance. And it struck me the extent to which and this is why I bring up the Nick Saban comparison. Success has its own charisma. And so the fact I think one of the key bonding experiences is the fact that she would want them on the team. And once somebody of that level, somebody of that unquestioned sense of achievement welcomes you in, I think that creates a bond right from the get-go from the student athlete

to the coach, just because this person of peer that has no real peer has welcomed you in, has said, you're part of my club. And I've always been interested in how much these Alabama players just seem to be tripping all over themselves to play for Nick Saban, and much rather than play for Gus Malzahn at Auburn. And it just strikes me again and again, success has its own charisma. Once you've won enough, the amount of effort you have to put out to draw these people to you is much lower. Well, and separate conversation for you and I, but as a teenager in your early 20s, all you're doing is searching the world for people who think you have potential and validate your, your potential. And, um, I remember the first person who thought I had potential and what that felt like. And I remember then when someone, um, I don't know, important might be the wrong word, but like, uh, a Nick Saban-esque figure thought I had potential. And I was like,

oh, oh my God. And you're right. I didn't need a hug. Them seeing any potential, like this is a silly example because it's not really about potential. But at one point, you know, Justice Scalia was on campus and I asked him to sign something and he let me hold his books while he signed it. And then he sort of walked off. And so I was just holding his books and I followed him with his books and I like got to carry his books for the next however long as he went around camping. Yeah. He did not realize that I was carrying his books. I was not appointed to do this in any sort of way. But like, you know, for that 20 minutes, I was the person who carried Justice Scalia's books.

Absolutely. Absolutely. I was trying to think of a good comparison from my life. I was trying to think of a good comparison from my life. And I came on this. What if the guild leader for the top Warcraft guild in the world invited me to like be on a raid with him? He could be a jerk the entire night. And I'm like, hey, man, I'm in this club. This is the coolest thing ever. So you can't see Caleb's face right now, our producer.

But both of us, that's where we're ending. We're definitely ending on that. I just killed the pod. All right. Well, that's a that's a good place to end with the death of the pod. But we appreciate you listening. And again, we keep appreciating your feedback. David at the dispatch dot com. Sarah with an H at the dispatch dot com. We have listened. We've absorbed it. And I think we've made a better podcast a result of it. And again, also, please rate us on Apple Podcasts. Until next week, this has been David and Sarah, and this is the Advisory Opinions Podcast. Thank you.