No Lie with Brian Tyler Cohen - Republican ruling backfires in spectacular fashion

Episode Date: February 25, 2024

Republicans are finally forced on the defensive after their war on women’s reproductive rights backfires spectacularly. Brian interviews PAC attorney Joe Birkenstock to discuss whether it��s acceptable for Trump's PAC to spend money on legal expenses and whether he has an obligation to disclose how the funds are going to be used when soliciting donations.Donate to the "Don't Be A Mitch" fund: https://secure.actblue.com/donate/dontbeamitchShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about the Republicans finally being forced on defense after their war on women's reproductive rights backfires spectacularly on them. And I interview PAC attorney Joe Birkenstock to discuss whether it's legal for Trump's PAC to spend money on legal expenses and whether he has an obligation to disclose how the funds are going to be used when soliciting donations. I'm Brian Tyler Cohen, and you're listening to No Lie. Republicans are now on the defensive to a degree that I haven't seen since Dobbs was first handed down. So the quick run down here is that the Alabama Supreme Court ruled that froze. and embryos created and stored for in vitro fertilization, IVF, are now considered human beings, basically children under state law, which would then open up IVF clinics to lawsuits for

wrongful death of those children if, for example, an embryo is mishandled. And so to avoid liability, to avoid like manslaughter or homicide charges, fertility clinics are stopping treatments, and people that relied on IVF to build their families now can't. And let's be perfectly clear, this decision was only made possible because of Dobbs. The majority opinion in this Alabama case literally cites the Dobbs decision that the unborn are living human beings, meaning that had Dobbs not happened, we wouldn't be here right now. This is the direct result of Donald Trump appointing a Supreme Court that vowed to overturn Roe and the direct result of a Republican Party that saw their 50-year plan come to fruition.

I don't know how else I can say this. This is exactly what they wanted. And so is, by the way, this IVF decision. Democrats actually introduced a bill specifically to protect IVF. called the Right to Build Families Act back in December of 2022, knowing that it was in jeopardy because of Dobbs, and that bill was blocked by a Republican senator. And just before that, the Rights of Contraception Act was blocked by another Republican senator.

So when Republicans claim, like, whoa, whoa, whoa, we didn't intend for this to happen. Yes, they did. That is quite literally, by definition, what they intended to happen when they blocked a bill that would prevent it from happening. Like, you can't block a bill protecting IVF and then do the whole fainting couch routine when IVF isn't, protected. And this goes without saying, but this decision has been an absolute disaster for Republicans given that they're now interfering in people's ability not just to decide how to have their families,

but to have them at all. Like for a lot of people, IVF is their only option. But these Republican politicians are so fucking overbearing and extreme that they couldn't help themselves. And now they're on the receiving end of a ton of negative coverage from people across the political spectrum who are recognizing that there is no end in sight by these Republicans to insert themselves between families and their doctors. And you can tell, by the way, that they're panicking because all these Republicans are coming out and feigning outrage over the decision.

Like Donald Trump, for example, who came out and pretended that he was for IVF, even though he appointed the Supreme Court that would overturn Dobbs, which led to this ruling. Like Mike Johnson, who tried to claim that he doesn't agree with this decision while he literally co-sponsored the Life at Conception Act,

which, like the Alabama ruling, states that the term human beings includes all stages of life, including the moment of fertilization, cloning, or other moment at which the individual member of the human species comes into being. And there is no exception for IVF, meaning that this bill, sponsored by Mike Johnson and 125 other Republicans,

would result in the exact same thing that is happening in Alabama right now. So when I say that they're not only opposed to this Alabama ruling, but actively pushing for it to occur nationwide, this is what I mean. Or this take by Lindsey Graham. The last thing we'll do is shut down a fertility clinic to have a child, that you desperately want, and the last thing we'll ever do is try to outlaw birth control. So when Hillary Clinton talks about that, that tells me they've run out of things to say about their own agenda. It's BS and it's not going to work.

The last thing we'll do is shut down a fertility clinic? I'm sorry, but what? That is literally what is happening in Alabama right now. The University of Alabama at Birmingham system stopped offering fertility treatments. The Alabama Fertility Services stopped. the Center for Reproductive Medicine stops, infirmary health stops. Like, my God, at this point, if you want to know the truth about what Republicans are doing, just listen to what they say and assume that it is the polar opposite.

So as far as the GOP is concerned, especially with regard to reproductive health and IVF, don't listen to what they say, watch what they do. And in fact, this applies to the entire bogus notion that the right is, you know, pro-life or pro-children or pro-babies. They fall over themselves grandstanding about their moral superiority, and yet they vote against child care, they vote against early education, they vote against the child tax credit, they vote against SNAP, where half the recipients are children, they vote against Medicaid, where again, half the recipients are children.

When Republicans stripped women of the reproductive rights, we all read in horror about young girls forced to give birth after being assaulted or molested. If you can point me to the part where they actually stand behind being pro-life or pro-baby or pro-child, I'm all ears. So look, the Alabama Supreme Court is composed entirely of Republican. There are no Democrats on this court. This is a conservative decision handed down by a conservative court. This is true, pure, unencumbered Republican governance in action.

This is what you're left with when Republicans take full control. This is the natural conclusion of a political party whose only guiding principle is forcing their extreme religious views onto the rest of the population. They profess to be these champions of freedom, but they work on a daily basis to strip those freedoms away. And so now, regular Americans who want nothing more than a family of their own, own can't because a bunch of religious zealots, a bunch of theocrats don't know how to let people live their lives without imposing their religious dogma onto them. And I promise you, this is not

the end for Republicans. This is the beginning. This is the warning shot. If the GOP wins in November, what you're seeing now isn't a fluke. It is a blueprint. And it'll impact families across the entire country. Next up is my interview with PAC attorney Joe Birkenstock. I'm joined today by Joe Birkenstock, who specializes in PAC law. So, Joe, Donald Trump's PAC spent roughly $50 million on legal expenses in 2023. So first off, does it pose some legal issue for Trump to spend PAC money on his legal fees? Yeah, great question. I mean, the short answer is it can. And this is in that zone of things that, you know, clients always hate to hear the answer is, it depends. But the only accurate answer here is it depends. It's a combination of what the

underlying issues are and also the specific nature of the source of the payment. Campaigns are treated differently than leadership packs or party committees. So there's a whole kind of morass you have to deal with in terms of sorting out which legal expenses can be paid by which committees for what purposes. And in terms of the expenses, the legal expenses that were paid by Donald Trump's committees, I mean, he has the Save America pack, I believe this is his principal pack, does it pose any issues that he was basically soliciting funds for a political campaign that were then being used to pay his lawyers. Right. Yeah. So this is an old issue, right? I mean, one thing to bear in mind

here is that the campaign finance laws that are currently in place were written in the 70s have been interpreted and changed and kind of modified over many decades. And this issue of personal use, even specifically in terms of legal fees, has been percolating for many, many of those decades. The beginning, the starting point is what exactly is the underlying issue that you need legal counsel to address? The law allows you to use campaign funds to cover legal expenses generated by your activities as a candidate or by your activities as an office holder. So when you look at all the various ways that Donald Trump is currently in legal trouble, you have to kind of sift out which ones are for which reasons. Think about the January 6th indictments, right, as one package. think about the classified documents case as another. Both of those clearly concern his activities

as a federal officeholder as president. So those are in a zone where even to the extent the committee that would be paying the fees is a principal campaign committee, those are actually permissible uses because the expenses themselves relate to his activities as an office holder. As a follow up to that, if he committed the actions for which he now needs legal counsel while he was in office, sure, but in furtherance of crimes, then is it exempt? Because he wasn't doing this, the actions that he committed for January 6th or stealing classified documents weren't, you know, part of his oath of office. And so could the crime fraud exception exempt, you know, accept him from being able to use

these fees under that, under that clause? You know, it's a great question, Brian. And I think it's in a zone of a lot of others where we've never had to confront this before. We've never had a president get indicted for felonies before. Not too many felonious presidents out there that can give you precedent. So, you know, in this way, as in so many ways, like, it's brand new turf because in the nearly 250-year-old history of our country, we simply have never had to confront these kinds of circumstances before. Now, does Donald Trump have any obligation to disclose where the funds will be allocated when soliciting donations from his supporters?

That's another very good question. And the short answer is really no. Solicitations for any kind of PAC, right? I mean, a candidate committee, a party committee, a leadership act, no matter what the species of committee is. The overall premise is you're raising money for political purposes, but the actual scope of what it is that counts as a political purpose is fairly broad. And again, is a history of several decades of determinations around exactly how far can you stretch that. One of the counterpoints, I think, that's presented by the circumstances around Trump are his multiple civil cases for fraud in New York for defamation against Gene Carroll. Those are not official activities. Those weren't even candidate activities. So in terms of the expenses incurred by those specific cases, I don't think he could use campaign funds to pay for those legal fees because, again, he, you know, painting it as I'm a victim. this is only happening to me because I'm a politician, that attempt to justify the use of campaign funds, again, is as old as the law. Lots of examples of office holders trying to find a basis to turn their personal legal trouble into political reasons so that they can justify the use of campaign funds to pay for them. Not always successful, by the way. And is there a way to delineate what specific cases he's used these funds for? Like, is there a way to ensure, for example,

for his, for his donor's benefit or for the benefit of the law, that these cases weren't paid to Alina Haba, for example, in her representation of him during the E. Jean Carroll case. Yeah, great question, right? The superficial way is the committees that make the payments to the various lawyers and law firms have to itemize those payments. So if there's not the same group of lawyers working on multiple different cases, you keep track by just paying attention to which lawyer or law firm is getting paid. You know, it's only for the matter, perhaps, that that one firm is the only one working on. Where there's a lawyer that stretches across multiple different cases,

at the end of the day, it is the kind of thing that the Federal Election Commission has investigated. They have subpoena power, they get the right to look at like the itemization of the time that was spent on different purposes in different cases, and the time spent defending civil cases that would have existed irrespective of his status as a candidate or an office holder,

would not be permissible uses of campaign funds. Now, in the first half of 2023, Donald Trump's PAC that I alluded to before, Save America, transferred almost $6 million to the Make America Great Again PAC, which spent virtually all of its money on legal fees. Is it legal for PACs to transfer funds from one PAC to another, even if it's to a pack that has a completely different purpose than the original pack? Yeah. In one word, yes, as long as the committees are affiliated. This is one of the terms of art in campaign finance law that you can determine by looking at the

paperwork for the various packs. Save America Pack, I believe, is a joint fundraising committee. It raises money for Trump's personal principal campaign committee and for the larger leadership pack. And as such, they are affiliated. And you really can see a lot of transfers taking place without limitation. Okay. Can you speak on, I guess, the appropriateness of a self-proclaimed billionaire soliciting funds

from small dollar donors to pay his legal fees? Yeah, that's a, that's a tricky zone. And it's, you know, as I was thinking about these issues before we, you know, started discussing them, there's a, right? You might have be familiar with this idea that they're, those of us in the field pay some attention to this. You see occasional prosecutions even, people who put together a pack claiming that it's for the purpose of electing candidate X, defeating candidate X, what have you. You look at the reports and 80, 90 cents on every dollar are going straight into somebody's pocket as profit. That's a paradigmatic case of a scam pack. It is very criminal. really are people going to prison over exactly that. Where's exactly that line between I'm scanning you and I'm personally making money versus I am saying to my donors, this is to get me reelected. But meanwhile, I'm spending all the money keeping myself out of prison. Once again, we've never had a candidate or a former president who is in this much legal trouble. And there's no real clear distinction there. One thing I guess I would add to that, though, right, in terms of the big

picture. Part of what underlies all of these various rules is the idea that, again, the recipient committees are disclosing how they're spending this money. So as journalists like yourself, make people more aware of the fact that, look, they're spending $50 million on legal fees. You're not really getting much bang for your buck if you're given to these recipients to make political impacts. It has an impact on fundraising. I think you actually start to see that with the R&C and even the Trump campaigns, not having the success that they've had, raising money in the current cycle. Well, that's exactly my next question.

Given the fact that Trump really hasn't had any positive outcomes in any of these cases, in fact, he's lost $5 million in the Eugene Carroll case and then lost $83.5 million in the second defamation case by Eugene Carroll, that is there, you know, is it fair to say that his funders have basically funded judgments that ultimately, you know, find their way into losing lawyer's pockets or even, you know, to some degree, E. Jean Carroll's pockets. It's entirely possible, yes. I mean, it's the zone of permissible uses of campaign funds for the legal fees themselves. I would add is different than the question of using those dollars to fund like the damages, for example, that he owes E. Jean Carroll. Remember,

the defamation case itself is not a function of his status as a candidate or an office holder? and the damages are certainly a very different proposition than the legal fees in the first place. So I think you have to stretch really hard to try to see a way that he could dip into these dollars to pay the damages that he now owes Gene Carroll. And as we all know, he operates only with the highest degree of integrity. So I'm sure that he won't dare, dare venture into that gray zone. Joe, let's finish off with this. In terms of, in terms of, you know, packs as they stand right now, in terms of, you know, just this whole,

whole world of soliciting funds for campaigns. Where do you think the biggest reforms are needed at this moment? Oh, boy. We don't have time for that. How much time you got? I'll say some of the low-hanging fruit, right? Like the system that we have, as I mentioned, right? These laws were basically designed right after Watergate. They're over 50 years old in many instances. The structure of the way they work is really still premised on an era when even cheap photocopying didn't exist, much less fax machines, much less the Internet. So one idea that I think would make a lot of sense that I actually haven't seen much energy devoted to is the premise of just saying, look, now that the Internet exists,

why are we waiting for months and months to end a reporting period and to fill out a report that is essentially still using the same sheets of paper-driven approach? that was being used in 1975, right? There's a way to change the way we think about what disclosure could look like in an internet era that we have now, make it much more timely, make it more grailer, make it much more useful to voters that requires, I think, a very clean sheet of paper approach.

Well, Joe, thank you so much for your time. Something tells me that this won't be the last time we speak as all these prosecutions continue to play out. So with that said, I appreciate you taking the time. My pleasure, Brian. But thanks again to Joe. That's it for this episode. Talk to you next week.

You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out Brian Tyler Cohen.com for links to all of my other channels. Thank you.